Black's Law Dictionary

Pronunciation Guide

m as in motion, malice

burden, circus, function, wonder n as in notice, negate

a as in fact, plat ng as in long, ring

ah as in balm, father 0 as in contract, loss

am as in bar, start oh as in oath, impose air as in flare, lair 00 as in rule, school aw as in tall, law oor as in lure, tour ay as in page, same or as in board, court

ow as in allow, oust

b as in balk, rob ch as in chief, breach oy as in join, ploy

d as in debt, docket p as in perjury, prize

r as in revolt, terror

e as in leg, tenant ee as in plea, legal s as in sanction, pace eer as in mere, tier sh as in sheriff, flash er as in merit, stationery t as in term, toxic th as in theory, theft f as in father, off g as in go, fog th as in there, whether h as in hearsay, hold uu as in took, pull hw as in whereas, while uur as in insurance, plural v as in vague, waiver i as in risk, intent w as in warranty, willful I as in crime, idle y as in year, yield J as in jury, judge z as in zoning, maze k as in kidnap, flak zh as in measure, vision 1 as in lawyer, trial a for all the vowel sounds in

Black's Law Dictionary® Ninth Edition

Black's Law Dictionary®

Ninth Edition

Bryan A. Garner Editor in Chief

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"BLACK'S LAW DICTIONARY" is a registered trademark of Thomson Reuters. Registered in U.S. Patent and Trademark Office. COPYRIGHT © 1891.1910.1933.1951.1957.1968.1979.1990 WEST PUBUSHING CO. © West. a Thomson business. 1999. 2004 © 2009 Thomson Reuters 610 Opperman Drive

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Black's Law Dictionary Ninth Edition

EDITOR IN CHIEF

Bryan A. Garner President, LawProse, Inc.

Distinguished Research Professor ofLaw

Southern Methodist University

Dallas, Texas

ASSOCIATE EDITOR

ASSOCIATE EDITOR

Tiger Jackson

Jeff Newman

LawProse, Inc. Dallas, Texas

LawProse, Inc. Dallas, Texas

CONTRIBUTING EDITORS

Karolyne H. Cheng

Herbert J. Hammond

Brian Melendez

Dallas, Texas

Dallas, Texas

Minneapolis, Minnesota

Ann Taylor Schwing

Fred Shapiro

Joseph F. Spaniol Jr.

Minneapolis, Minnesota

New Haven, Connecticut

Bethesda, Maryland

PRONUNCIATION EDITOR

Charles Harrington Elster San Diego, California

PANEL OF PRACTITIONER CONTRIBUTORS Page vi

PANEL OF ACADEMIC CONTRIBUTORS Page ix

v

Black's Law Dictionary (9th ed.) PANEL OF PRACTITIONER CONTRIBUTORS Sherri K. Adelkoff Pittsburgh, Pennsylvania

Daniel Alexander Los Angeles, California

Suzanne Antley San Diego, California

Leslie Karyn Arfine Ridgefield, COllllecticut

John R. Armstrong II Irville, California

Brad D. Bailey Evergreell, Colorado

William P. Baker Baltimore, Maryland

Judith M. Bambace San Diego, California

Daniel P. Barer Los Angeles, California

Ben A. Baring Jr. Houston, Texas

Chad Baruch Dallas, Texas

Isabel Barzun New York, New York

Eric S. Basse Bremerton, Washington

Laurie T. Baulig Lancaster, Pennsylvania

HughC. Beck Littleton, Ohio

Adron W. Beene San Jose, California

Bill C. Berger Denver, Colorado

Xanthe M. Berry Oakland, California

Nathan V. Bishop East Hills, New York

Michael R. Blum San Francisco, California

Deborah 1. Borman Chicago, Illinois

Sara E. Boulev Salt Lake City, Utah

Kevin J. Breer Westwood, Kansas

Mark A. Bregman Scottsdale, Arizona

Beth A. Brennan lVIissoula, lvlolltana

Joyce Murphy Brooks Charlotte, North Carolina

Diana Brown

Bernadette S. Curry

Houston, Texas

Fairfield, California

Lynne Thaxter Brown Fresno, California

James Andrew Browne San Frallcisco, California

Julie A. Buffington Dallas, Texas

Jonathan A. Darcy Philadelphia, Pennsylvania

Elaine Maier Deering Boca Ratoll, Florida

A. Charles Dell'Ario Oaklalld, California

B. Chad Bungard Fredericksburg, Virgillia

Beverly Ray Burlingame Dallas, Texas

C. David Dietz St. Paul, Minnesota

Michael J. Dimino Washillgtoll, D.C.

Fritz Byers

Richard S. Dodd II

Toledo, Ohio

Reston, Virginia

H. Thomas Byron III Washington, D.C.

Christopher A. Camardello Minneapolis, Minnesota

David 1. Cargille New York, New York

Robert J. Carty Jr. Houston, Texas

Leah Domstead Dallas, Texas

Preston Saul Draper Norman, Oklahoma

John C. Duncan Norman, Oklahoma

Gerald F. Dusing Covington, Kentucky

Thomas 1. Casey Lallsing, Michigan

Bradley Charles

Steve C. Eggimann Minneapolis, Minnesota

Daniel P. Elms

Grand Rapids, Michigan

liChen

Dallas, Texas

Ann Erickson Gault

Dallas, Texas

Pontiac, Michigan

Jordan B. Cherrick St. Louis, Missouri

Peter Clapp

Michael T. Fackler Jacksonville, Florida

Michael E. Faden

Richmond, California

Kristina A. Clark Washington, D.C.

Randall B. Clark Boston, Massachusetts

A. Craig Cleland Atlanta, Georgia

Michael Scott Coffman Salt Lake City, Utah

Elizabeth J. Cohen Chicago, Illinois

Rockville, Maryland

John D. Faucher Thousand Oaks, California

Bruce Ellis Fein Washington, D.C.

Janet Rosenblum Fipphen Fairfield, Connecticut

Angela Fisher Knoxville, Tennessee

Neil Fried Arlington, Virginia

Charles Dewey Cole Jr. New York, New York

Samuel Scott Cornish New York, New York

Emily Cote

Elizabeth Klein Frumkin Cambridge, Massachusetts

Mark W. Gaffney Pelham Manor, New York

Duane H. Gall

San Jose, California

Jefferson Coulter Seattle, Washington

Denver, Colorado

Nicole S. Gambrell Dallas, Texas

Baldemar Garcia Jr.

Jim Covington Springfield, Illinois

vi

Laredo, Texas

Black's Law Dictionary (9th ed.) PANEL OF PRACTITIONER CONTRIBUTORS Kathryn Gardner Topeka, Kansas

AnneW. Gill Castle Rock, Colorado

Alexander C.D. Giza Culver City, California

Kevin W. Grierson Norfolk, Virginia

Ellen B. Gwynn Tallahassee, Florida

Matthew C. Hans St. Louis, Missouri

Yaakov Har-Oz Beit Shemesh, Israel

William H. Hart Minneapolis, Minnesota

Molly Hatchell Austin, Texas

Scott M. Heenan Cincinnati, Ohio

Marie Hejl A ustin, Texas

Susan Hoffman San Luis Obispo, California

Jeffrey A. Hogge Elk Grove, California

Brian John Hooper

Stuart B. Katz

Morris D. Linton

Chappaqua, New York

Paul D. Keeper Austin, Texas

Washington, D.C.

Darlene Azevedo Kelly Oakhurst, California

H. Dennis Kelly Fort Worth, Texas

Clark D. Kimball Rochester, New York

James A. King

Virginia Beach, Virginia

Maryanne Burnes Hutchinson Braintree, Massachusetts

AmyB. Ikerd Coldwater, Ohio

Peter O. Israel Los Angeles, California

Dianne L. Izzo Austin, Texas

Matthew A. Jacober St. touis, Missouri

Robert A. James San Francisco, California

Eric K. Johnson Murray, Utah

David R. Johnstone Washington, D.C

Richard B. Katskee Washington, D.C

Chicago, lllinois

Columbus, Ohio

Fairfax, Virgillia

Anthony J. Marks

Cherry Hill, New Jersey

Melissa Lin Klemens Washington, D.C.

William M. Klimon Washington, D.C.

Los Angeles, California

Catherine M. Masters Chicago, Illinois

Jeffrey Matloff Bellevue, Washington

Michael J. Mauro

Helena Klumpp Deerfield, Illinois

Jonathan H. Koenig Wauwatosa, Wisconsin

Thomas J. Koffer New York, New York

Christina M. Kotowski San Francisco, California

Mike Kueber

Stamford, Connecticut

OlgaL May San Diego, California

Jeffrey T. McPherson St. Louis, Missouri

John W. McReynolds Dal/as, 7exas

Edward R. Mevec

San Antonio, Texas

Houston, Texas

Dal/as, Texas

David P. Lyons

Andrew D. Klein

Nanda P.B.A. Kumar

Robert N. Hughes

Minneapolis. Minnesota

Robert N. Markle

Arlington, Virginia Washington, D.C

Thomas G. Lovett IV Margaret I. Lyle

Henry W. Huffnagle Han. Lynn N. Hughes

Salt Lake City, Utah

David W. Long

Philadelphia, Pennsylvania

Buchanan, New York

Andrew E. Miller Los Angeles, California

Matthew C. Miller

Robert J. Lally Cleveland, Ohio

Kansas City, Missouri

Han, Harriet Lansing St. Paul, Minnesota

Geoffrey Larson Minneapolis, Minnesota

James Hays Lawson Louisville, Kentucky

Han. Steve Leben Topeka, Kansas

Daphna H, Mitchell New York, New York

Michael S. Mitchell New Orleans, Louisiana

Andrew W. Moeller Amherst, New York

Thomas J. Moses San Francisco, California

Michelle Thomas Leifeste Boulder, Colorado

Andrew D. Levy Baltimore, Maryland

R. Eric Nielsen Bethesda, Maryland

Siobhan Nurre San Jose, California

Consuelo Marie Ohanesian

Janet Li Foster City, California

Dryden J. Liddle Alameda, California

Raymond J. Liddy San Diego, California

Jacob R. Lines

Phoenix, Arizona

Erin J. O'Leary Orlando, Florida

Kymberly K. OItrogge Drippings Springs, Texas

William S. Osborn

Tucson, Arizona

vii

Dallas, Texas

Black's Law Dictionary (9th ed.)

PANEL OF PRACTITIONER CONTRIBUTORS

James C. Owens

James F. Schaller II

Renee Maria Tremblay

Toledo, Ohio

Washington, D.C.

Christine C. Pagano

Ottawa, Ontario, Canada

Edward Schiffer

Oakland, California

Craig J. Trocino

San Francisco, California

Daniel J. Schultz

Paul I. Perlman Buffalo, New York

Tempe, Arizona

Arthur R. Petrie II

David W. Schultz

Newport Beach, California

Rebecca B. Phalen

Mandeville, Louisiana

Arthur A. Vingiello

Houston, Texas

Baton Rouge, Louisiana

Herbert R. Schulze

Kristin P. Walinski

Truckee, California

Atlanta, Georgia

Richmond, Virginia

Benjamin G. Shatz

David Pickle Washington, D.C.

Richard S. Walinski

Los Angeles, California

Denise Wimbiscus Shepherd

Mark D. Plaisance Baker, Louisiana

Solon, Ohio

Matthew Eliot Pollack Topsham, Maine

Baton Rouge, Louisiana

San Francisco, California

Riverswood, Illinois

Columbus, Ohio Tumwater, Washington

Marshall Simmons

Philip Weltner II

Dallas, Texas

Houston, Texas

Atlanta, Georgia

Fred A. Simpson

Robert M. Redis White Plains, New York

James M. Reiland

Garner K. Weng

Houston, Texas

San Francisco, California

Adam Snyder

Eric R. Werner

Wadsworth, Illinois

Chicago, Illinois

Fort Worth, Texas

Randall J. Snyder

Tracy 1. Reilly

Donald C. Wheaton Jr.

Bismarck, North Dakota

Dallas, Texas

David E. Robbins Broomall, Pennsylvania Washington, D.C.

Chicago, Illinois

Chevy Chase, Maryland

Daniel R. White

Scott A. Stengel Washington, D.C.

Susan L. Ronn

Los Angeles, California

Heather E. Stern

Kohimarama Auckland, New Zealand

Joseph E. Root

Malcolm E. Whittaker

Los Angeles, California

Scott Patrick Stolley

Hamden, Connecticut

Victor R. Stull

Hon. Janice M. Rosa Erie County, New York

Glenn F. Rosenblum Philadelphia, Pennsylvania

Joseph M. Russell

Hon. Bruce Donald Willis

Redlands, California

Plymouth, Minnesota

Michelle Dimond Szambelan Spokane, Washington

Craig M. Wolff Yarmouth, Maine

Craig D. Tindall

James B. Ryan

Sara T.S. Wolff

Phoenix, Arizona

San Diego, California

Patrick M. Ryan

Yarmouth, Maine

Albert J. Wollerman

Nick Tishler Niskayuna, New York

San Francisco, California

Conrad R. Wolan Elmira, New York

Tony Tanke Davis, California

Chicago, Illinois

Houston, Texas

Jamison Wilcox

Dallas, Texas

Montara, California

St. Clair Shores, Michigan

Carla 1. Wheeler

William C. Spence

Armando Rodriguez-FeD

Dallas, Texas

M.John Way

Southfield, Afichigan

Houston, Texas

Steve Putman

MarkR. Wasem Christine E. Watchorn

Jordan M. Sickman

Christina E. Ponig

Toledo, Ohio

Alison Wallis Harvey, Louisiana

Richard A. Sherburne Jr. Anne M. Sherry

Jeffrey D. Polsky

Fort Lauderdale, Florida

R. Collins Vallee

Tallahassee, Florida

Peter J. Toren

William C. Wright

New York, New York

West Palm Beach, Florida

GARNER LAW SCHOLARS - SMU SCHOOL OF LAW Timothy D. Martin

Arrissa K. Meyer

Jonathan Michael Thomas

Laurie M. Velasco

'The Colony, Texas

Dallas, Texas

Dallas, Texas

Plano, Texas

viii

Black's Law Dictionary (9th ed.)

PANEL OF ACADEMIC CONTRIBUTORS

Hans W. Baade The University of Texas

Lynn A. Baker 7he University of Texas

Thomas E. Baker Florida International University

Barbara Aronstein Black Columbia University

Hon. Thomas Buergenthal International Court ofJustice (George Washington University)

Edward H. Cooper University ofMichigan

Daniel Robert Coquillette Boston College

David Crump University ofHouston

Darby A. Dickerson Stetson University

James Joseph Duane Regent University School ofLaw

David G. Epstein Southern Methodist University

(the late) E. Allan Farnsworth Columbia University

Martha A. Field Harvard University

Monroe H. Freedman Hofstra University

Richard D. Freer Emory University

S. Elizabeth Gibson University ofNorth Carolina

Richard J. Graving South Texas College

Alan Gunn University ofNotre Dame

Egon Guttman American University

Geoffrey C. Hazard Jr. University of California­ Hastings College ofLaw

R.H. Helmholz University ofChicago

Heidi M. Hurd University ofIllinois

Julian Conrad Juergensmeyer Georgia State University

Sanford H. Kadish University ofCalifornia at Berkeley

Gideon Kanner Loyola Law School

Joseph R. Kimble Thomas M. Cooley Law School

Edward J. Kionka Southern Illinois University

Douglas Laycock The University ofMichigan

Saul Litvinoff Louisiana State University

JohnS. Lowe Southern Methodist University

(the late) Julius J. Marke Sf. John's University

Thomas William Mayo Southern Methodist University

Lucy S. McGough Louisiana State University

Joseph w. McKnight Southern Methodist University

John K. McNulty University ofCalifornia at Berkeley

Ernest Metzger University ofAberdeen

James E. Moliterno College of William & Mary

James A.R. Nafziger Willamette University

John B. Oakley UniversityafCalifornia

John V. Orth University afNorth Carolina

Alan N. Resnick Hofstra University

O.F. Robinson University ofGlasgow

Jean Rosenbluth Urliversityof Southern California

Paul Frederick Rothstein Georgetown University

Ronald Daniel Rotunda George Mason University

Stephen A. Saitzburg The George Washington University

Frederic S. Schwartz Okahoma City University School ofLaw

Charles Silver The University of Texas

Lawrence M. Solan Brooklyn Law

Marc 1. Steinberg Southern Methodist University

Michael F. Stu dey The University of Texas

Symeon Symeonides Willamette University

Peter Meijes Tiersma Loyola Law School

Mark V. Tushnet Georgetown University

William D. Underwood Baylor University

David Walker University ofGlasgow

Robert Weisberg Stanford Law School

Mary Whisner University of Washington

Peter Winship Southern Methodist University

Charles W. Wolfram Cornell Law School

Richard C. Wydick University ofCalifornia at Davis

A.N. Yiannopoulos Tulane University

Judith T. Younger

Tony Honore

University ofA1innesota

Oxford University

ix

Contents Preface to the Ninth Edition. . . . . . . . . . . . . . . . . . . . . . . . . . Preface to the Eighth Edition . . . . . . . . . . . . . . . . . . . . . . . . . Preface to the Seventh Edition . . . . . . . . . . . . . . . . . . . . . . . . Guide to the Dictionary. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . List of Abbreviations in Definitions. . . . . . . . . . . . . . . . . . . .

xiii

xv

xvii

xxv

xxxi

Dictionary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1

Appendixes A. Table of Legal Abbreviations... .... ... . ... ... .. B. Legal Maxims. . . . .. . .. . . . . . . . . . . . . .. . ... . .. . .

C. The Constitution of the United States of America. D. Universal Declaration of Human Rights. . . . . . . . .

E. F. G. H.

Members of the United States Supreme Court . . . . Federal Circuits Map. . . . . . . . . . . . . . . . . . . . . . . . . . British Regnal Years. . . . . . . . . . . . . . . . . . . . . . . . . . . Bibliography. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

xi

1761

1815

1881

1895

1899

1903

1905

1907

Preface to the Ninth Edition Since becoming editor in chief of Black's Law Dictionary in the mid-1990s, I've tried with each successive edition-the seventh, the eighth, and now the ninth-to make the book at once both more scholarly and more practical. Anyone who cares to put this book alongside the sixth or earlier editions will discover that the book has been almost entirely rewritten, with an increase in preci­ sion and clarity. It's true that I've cut some definitions that appeared in the sixth and earlier editions. On a representative sample of two consecutive pages of the sixth can be found botulism, bouche (mouth), bough ofa tree, bought (meaning "purchased"), bouncer (referring to a nightclub employee), bourg (a village), boulevard, bourgeois, brabant (an obscure kind of ancient coin also called a crocard), brabanter (a mercenary soldier in the Middle Ages), and brachium maris (an arm of the sea). These can hardly be counted as legal terms worthy of inclusion in a true law dictionary, and Black's had been properly criticized for including headwords such as these." Meanwhile, though, within the same span of terms, I've added entries for three types of boundaries (agreed boundary, land boundary, lost boundary), as well as for bounty hunter, bounty land, bounty-land warrant, boutique (a specialized law firm), box day (a day historically set aside for filing papers in Scotland's Court of Session), box-top license (also known as a shrink-wrap license), Boykin Act (an intellectual-property statute enacted after World War II), Boyle defense (also known as the government-contractor defense), bracket system (the tax term), Bracton (the title of one of the earliest, most important English lawbooks), and Brady Act (the federal law for background checks on handgun-purchasers). And all the other entries have been wholly revised-shortened here and amplified there to bring the book into better proportion. Hence, in one brief span of entries, the sixth and the ninth editions appear to be entirely different books. That's true throughout the work. But it's not as if I've revised the book with any hostility toward historical material. In fact, I've added hundreds of Roman-law terms that had been omitted from earlier editions and retranslated all the others on grounds that current users of the dictionary might need to look up the meanings of these historical terms. But whatever appears here, in my view, should be plausibly a law-related term-and closely related to the law. Users ought to be reminded once again about the handy collection oflegal maxims in Appendix B. It is, I believe, the most comprehensive and accurate set of translated maxims to be found anywhere in print-thanks to the erudite revisions of two civil­ law experts of the first rank: Professor Tony Honore of Oxford and Professor David Walker of Glasgow. A lexicographer must do what is practicable to improve each new edition of a dic­ tionary. One of the notable features of this new edition is the dating of the most common terms-that is, the parenthetical inclusion of a date to show the term's earliest known use in the English language. For researching these dates, I'm grateful to the distinguished and industrious lexicographer at the Yale Law Library, Fred R. Shapiro. "See David Mellinkoff, The Myth ofPrecision and the Law Dictionary, 31 U.C.L.A. L. Rev. 423, 440 (1983).

xiii

PREFACE TO THE NINTH EDITION

As a lexicographer, I've learned a great deal from my friends and mentors in the field-especially the late Robert W. Burchfield, editor ofthe Oxford English Dictionary Supplement during the latter half of the 20th century. Like his 19th-century precursors at the Oxford English Dictionary, Burchfield had a battalion oflexicographic volunteers from around the globe to help him in his momentous work. I have tried to do the same. Because I genuinely believe in a community ofschol­ ars-a community oflearned people who understand the cultural and historical impor­ tance of having a first-rate dictionary, and are willing to playa role in producing it-I have called on volunteers to help in the production ofthis vast and complex dictionary. It has been rewarding to have so many lawyers, judges, and scholars answer the call. Take a moment, if you will, and scan the masthead on pages vi-ix. Consider that each of these contributors personally edited 30 to 50 pages ofsingle-spaced manuscript-some more than that. They suggested improved wordings and solved editorial difficulties they encountered. Consider the geographical variety of the panelists, and ponder the years of specialist knowledge they brought to their work. Look at the panel of academic contribu­ tors and notice that they are distinguished scholars of the highest order, many of them household names among lawyers. They exerted themselves not just for the betterment of this book, but for the betterment ofthe law as a whole. For this is the law dictionary that the profession has relied on for over a century. Everyone who cares about the law owes our contributors a debt of thanks. Bryan A. Garner LawProse, Inc. Dallas, Texas April 2009

xiv

Preface to the Eighth Edition This massive new edition of Black's Law Dictionary continues the undertaking begun by Henry Campbell Black in 1891: to marshal legal terms to the fullest possible extent and to define them accurately. But more than that, it continues the effort begun with the seventh edition: to follow established lexicographic principles in selecting headwords and in phrasing definitions, to provide easy-to-follow pronunciations, and to raise the level ofscholarship through serious research and careful reassessment.* The terminology in several fields of law now finds greater coverage in the book than ever before. Specialists generously improved our treatment of terms in admi­ ralty (Michael F. Sturley), contracts (E. Allan Farnsworth), criminal law (Stephen A. Saltzburg, Robert Weisberg), ecc1esiasticallaw (R.H. Helmholz), family law (Lucy S. McGough, Janice M. Rosa), federal agencies (Joseph F. Spaniol Jr.), international law (Thomas Buergenthal), Louisiana law (Saul Litvinoff, Symeon Symeonides, A.N. Yian­ nopoulos), oil and gas (John S. Lowe), parliamentary law (Brian Melendez), Roman law (Tony Honore, D.F. Robinson, Ernest Metzger), and Scots law (D.F. Robinson, David Walker). Beyond those specialized reviews, however, a newly created panel ofacademicians reviewed the entire alphabetical span of the book. That way, the entire text received thorough scrutiny by many of the best legal minds in the world. Entries have been updated and expanded to reflect both contemporary and historical usage. I am much indebted to everyone on the panel (see p. v). Many intellectual-property lawyers reviewed and commented on the terms in their field: Ray Aust, David L. Cargille, Li Chin, Jonathan A. Darcy, Michael J. Dimino, Herbert J. Hammond, Karen G. Horowitz, Audrey E. Klein, Nanda P.B.A. Kumar, Eric Myers, Jeff Mode, Todd A. Norton, Michael A. Papalas, Tracy L. Reilly, and Eric Sofir. Special thanks go to Herbert J. Hammond, who expertly drafted many entries for intel­ lectual property. The first two appendixes have been greatly amplified. Kurt Adamson of the Under­ wood Law Library at Southern Methodist University skillfully prepared the table of abbreviations found in Appendix A. The legal maxims in Appendix B were scrutinized and corrected by Professors Honore and Walker. The maxims have been amended and supplemented to such a degree that it can probably be called the most exhaustive and authoritative collection anywhere to be found. For the first time, Black's Law Dictionary contains citations that stay current: with a massive undertaking by the key-number classification team at West Group, I've added more than 10,000 citations to key numbers and to Corpus Juris Secundum - a sig­ nificant aid to research. My special thanks to Robin Gernandt, who spearheaded the effort, along with his many colleagues: Jill Bergquist, Kara Boucher, Barbara Bozonie, David Brueggemann, Kevin Callahan, Dan Dabney, Lynn Dale, Lisa Dittmann, Robert Dodd, Wayne Foster, Valerie Garber, Phil Geller, Gerald Gross, Craig Gustafson, Nancy Johnson, Charles Kloos, Nicholas Koster, Jana Kramer, Patricia Larson, Jeffrey Locke, "See generally Bryan A. Garner, Legal LeXicography: A View from the Front Lines, 6 Green Bag 2d 151 (2003).

xv

PREFACE TO THE EIGHTH EDITION

Richard Mattson, Timothy Nornes, Joel Nurre, Frederick Steimann, James Vculek, and Linda Watts. Three who did an extraordinary amount of this highly skilled work merit double mention: Robin Gernandt, Phil Geller, and Lisa Dittmann. Several splendid lawyers helped edit the manuscript in the final months, often working nights and weekends. My thanks to Julie Buffington, Beverly Ray Burlingame, Nicole Gambrell, and Ann SchWing. Others - namely, Jordan Cherrick, Charles Dewey Cole Jr., Margaret L Lyle, Steve Putman, and Scott Patrick Stolley generously took on the task of reviewing batches of new entries. They all made the book better than it otherwise would have been. In the final stages of preparing the manuscript, Mayuca Salazar and Liliana Taboada, two learned lawyers from Monterrey, Mexico, helpfully reviewed the several Spanish-law terms that appear here. In the last few days before the manuscript went to the printer, several Minneapolis­ area lawyers volunteered to proofread batches of manuscript. My thanks to Catherine Berryman, Vanya S. Hogen, Seth J.S. Leventhal, Michael A. Stanchfield, and Edward T. WahL They all made valuable contributions. As in the past, the business side of producing the dictionary ran smoothly. At West, Doug Powell, Pamela Siege Chandler, and Louis H. Higgins all provided impor­ tant support. Timothy L. Payne of West painstakingly shepherded the book through production. Many others have contributed to the book in one way or another: Angee Calvert, Edwin Carawan, Caroline B. Garner, Harris L. Hartz, Donald F. Hawbaker, Cynde L. Horne, Thomas B. Lemann, Karen Magnuson, R. Eric Nielsen, Alison Parker, Wanda Raiford, Patrick M. Ryan, David W. Schultz, Andre Stipanovic, and Christina E. Wilson. As in the seventh edition, we had the benefit of Charles Harrington Elster's excellent pronunciations. Finally, I thank my two assistant editors, Tiger Jackson and Jeff Newman, who worked closely with me for several years to produce this much-amplified eighth edition. Bryan A. Garner Dallas, Texas February 2004

xvi

Preface to the Seventh Edition When Henry Campbell Black published the first edition of Black's Law Dictionary back in 1891, the Oxford English Dictionary had not yet been completed. Nor was the OED finished when Black prepared his second edition in 1910. By today's standards, the "gentle art oflexicography,,,l as it has been called, was yet to experience the tremendous dictionary-making developments that the 20th century had in store, the highlights being the OED (1928), Webster's Second (1934), Webster's Third (1961), and the second edition of the OED (1989). Largely through the influence of these major works, dictionaries today are much better than they used to be. Legal scholarship has also made tremendous strides - even in describing pre-19th­ century law. The great legal historians Pollock, Maitland, and Holdsworth had not yet produced their monumental works when Black put out the first edition. Our under­ standing of Roman law is better today than it was a century ago. Our understanding of feudal law is much better. Meanwhile, our precedent-based system still has not entirely escaped the influence of Roman and feudal law. At the same time, modern law hurtles headlong into decade after decade of new statutes, new doctrines, and new tripartite tests. The world - as well as the law that tries to govern it - is changing at a dizzying pace. Ifyou want evidence of this change, look inside for the hundreds of new entries such as cyberstalking, jurimetrics, parental kid­ napping, quid pro quo sexual harassment, reproductive rights, and viatical settlement. Given all these developments-both in lexicography and in law-it is hardly sur­ prising that, by the end of the 20th century, Black's Law Dictionary had come to need a major overhaul. This edition is the result of that effort.

New Features in the Seventh Edition Significant strides have been made both in modernizing this edition and in improv­ ing its historical depth. The editors' goal was to make it at once the most scholarly and the most practical edition ever published. More than 4,500 entries in the book are entirely new. (Some of the new entries are surprising: previous editions had omitted some commonplace terms such as act ofCongress, circuit judge, motion for summary judgment, senatorial courtesy, and sidebar comment.) Of the remaining 20,000 entries, all have been thoroughly revised: sharpened and tightened. Aside from the thousands of new entries and subentries, the differences between earlier editions and this one are many. The headwords show whether a term should be uppercase or lowercase, roman or italic. The pronunciation symbols are easy to understand. For the first time ever, etymologies systematically appear. Senses ofwords are analytically broken down and given numbers - as never before. Definitions are clearer than ever (though the battle for clarity, when the subject is feudal law, can never be completely won). Bullets now appear within definitions to help differentiate defini­ tional information (before the bullet) from encyclopedic information (after the bullet). More than 2,000 newly added quotations from some 400 important works of Anglo­ 1. Eric Partridge, The Gentle Art ofLexicography, as Pursued and Experienced by an Addict (1963).

xvii

PREFACE TO THE SEVENTH EDITION

American legal scholarship appear throughout the text to help convey the nuances of the legal vocabulary. (More about these in a moment.) The 2,200 legal maxims (mostly Latin) are conveniently collected in an appendix, instead of cluttering the main lexicon. In addition, my colleagues and I have: • Attempted a thorough marshaling of the language of the law from original sources. • Examined the writings of specialist scholars rather than looking only at judicial decisions. • Considered entries entirely anew rather than merely accepting what previous editions have said. We have often checked Westlaw and other sources when trying to decide which of two competing forms now predominates in legal usage. • Imposed analytical rigor on entries by avoiding duplicative definitions and by cataloguing and numbering senses. • Ensured that specialized vocabularies are included - from bankruptcy to secu­ dties law, from legal realism to critical legal studies. This modern approach to legal lexicography is only a beginning. To its great credit, the West Group has now made the editing of Black's Law Dictionary, in its various editions, an ongoing project. This means that Black's, like all major dictionaries outside the law, will be a continuing work in progress. As the law continues its rapid evolution, Black's Law Dictionary will keep apace.

The Inclusion of Scholarly Quotations In a novel feature, more than 2,000 quotations from scholarly works appear throughout the text to help round out the treatment ofvarious terms. In selecting these quotations, my colleagues and I have sought a blend of characteristics: temporal and geographic range, aptness, and insight. Some scholars show great astuteness in discuss­ ing terminology particularly Blackstone (English law), Glanville Williams (criminal law and jurisprudence), Rollin Perkins (criminal law), and Charles Alan Wright (federal procedure). Although Blackstone and Wright are well known to American lawyers, Williams and Perkins are not: their work deserves more widespread attention. In the List of Works Cited (Appendix H) appear the 400-plus lawbooks cited in these pages. We have tried to locate the best scholarly discussions oflegal terminology and to give snippets of them. In future editions, we intend to continue this practice, and we encourage readers to submit published quotations for this purpose.

The Challenge of Legal Lexicography Law dictionaries have a centuries-old tradition of apologizing in advance for errors and omissions. Some of the apologies are moving - especially to one who understands the arduousness oflexicography and a few border on the humorous: 1607: "[IJfI have either omitted any hard word within my circuit, or set it downe not expounded, I give you good leave to impute the one to my negligence, the other to mine ignorance: and so commend these my paines to your best profit, and ,,2 you unto Go. d 2. John Cowell, Vie Interpreter 5 (1607).

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1670: "If I have sometimes committed a Jeofaile, or hunted Counter in any explica­ tion or Etymology, in so large a field of words, and stor'd with such variety of Game, it will be no wonder, and, I hope, will draw no censure upon me from the Ingenuous .... [Ilf I leave some words with a Quaere . .. to be resolved or corrected by the more learned; it is but what Cowell frequently, and Spelman has sometimes done.,,3 1732: "[Wlhere there is such great Variety of Learning and abundant Quantity of Nice Matter, with the utmost Care, there must be some Faults and Failings to be Pardon'd by the Reader.,,4 1839: "To those who are aware of the difficulties of the task, the author deems it unnecessary to make any apology for the imperfections which may be found in the work. His object has been to be useful; if that has been accomplished in any degree, he will be amply rewarded for his labour; and he relies upon the generous liberality ofthe members of the profession to overlook the errors which may have been committed in his endeavours to serve them."s 1848: "It is not without very considerable diffidence, that this Lexicon is submitted to the indulgence of the Profession and the Public, for no man can be more conscious of the difficulties besetting such a subject of the many requi­ sites of the task and above all, of the great discrepancy usually exhibited between what a book ought to be, and what it is than the Author ofthe present ,,6 underta k ing. 1859: "[Tlhe work is now submitted to the examination of the profession. That its execution has fallen far short of its deSign, is already but too apparent to the author's own observation. Of the defects that may be discovered in its pages, some seem to be inseparable from the task of first compiling any matter of the kind from sources so numerous, and scattered over so wide a field.''? 1874: "[W]ithout craving the indulgence of the public, whose servant he is, and to whom, therefore, ifhe serve up anything he should in all conscience serve up a proper dish, [the Author] is reluctant to acknowledge that an unaccustomed feeling of diffidence has once or twice assailed him, lest his work should not prove so absolutely faultless or so generally useful as it has been his wish to make it.',8 In the first edition ofthis book (1891), Henry Campbell Black broke the tradition, boldly asserting the exhaustiveness of his work: "The dictionary now offered to the profession is the result ofthe author's endeavor to prepare a concise and yet comprehensive book of definitions of the terms, phrases, and maxims used in American and English law and necessary to be understood by the working lawyer and judge, as well as those important to the student oflegal history or comparative jurisprudence.... Ofthe most esteemed law dictionaries now in use, each will be found to contain a very considerable number ofwords not defined in any other. None is quite comprehensive in itself. The author 3. Thomas Blount, Nomo-Lexicon: A LaW-Dictionary [n.p.] (1670). 4. Giles Jacob, A New Law-Dictionary 4 (2d ed. 1732). 5. John Bouvier, A Law Dictionary viii (1839). 6. J,J.S. Wharton, The Legal Lexicon, or Dictionary ofJurisprudence iii (1st Am. ed. 1848). 7. Alexander M. Burrill, A Law Dictionary and Glossary xv (1859). 8. Archibald Brown, A New Law Dictionary vi (1874).

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PREFACE TO THE SEVENTH EDITION

has made it his aim to include all these terms and phrases here, together with some not elsewhere defined." Henry Campbell Black, A Dictionary ofLaw iii (1891). There is no lack of confidence expressed anywhere in his preface. Yet in putting forth this seventh edition, my feelings incline more to those of Black's predecessors than to those of Black himself.

A Lot of Help from Our Friends Diffidence, though, can lead to safeguards. And so it has in this work. I engaged several distinguished scholars who thoroughly vetted the entire manuscript: • Tony Honore, former holder ofthe Regius Chair in Civil Law at Oxford Univer­ sity, and author of many important books, including Causation in the Law (with H.L.A. Hart). • Joseph F. Spaniol Jr., former Clerk of the Supreme Court of the United States, whose wide-ranging experience includes decades ofservice in federal rulemak­ ing as a consultant to the Standing Committee on Rules of Practice and Proce­ dure. • David M. Walker, former holder of the Regius Chair in Civil Law at Glasgow University, perhaps the most prolific legal writer in the British Isles, and author of the renowned Oxford Companion to Law (1980). Additionally, in about a third of the manuscript, we had the help of Hans W. Baade, holder of the Hugh Lamar Stone Chair in Civil Law at the University of Texas. He is a comparativist of the first rank whose expertise ranges from domestic relations to inter­ national transactions to conflict oflaws. On the editorial side, several of my colleagues at LawProse, Inc. played crucial roles. David W. Schultz, a seasoned editor who joined the Black's team in 1995, was invaluable in producing both the pocket edition (which appeared in 1996) and this unabridged edition. His editorial judgments have improved every page. Lance A. Cooper, an aspiring legal historian, joined the team in 1997, working skillfully on thousands of entries for more than 18 months. Elizabeth C. Powell arrived in 1998, bringing with her a keen intellect, ten years of lawyerly experience, and an amazing capacity for hard work. All three - Schultz, Cooper, and Powell - are splendid lawyers who, not so long ago, never imagined they would one day be legal lexicographers. Yet they learned dic­ tionary-making as the best lexicographers do: on the job. And they've become quite accomplished. When it came to pronunciations, though, I knew we needed someone already expert in the art. Ihis dictionary presents extraordinary challenges to a pronunciation editor, being full of Latin and French as well as Law Latin (the impure Latin of Renaissance lawyers) and Law French (the Norman French of medieval lawyers). Fortunately, Charles Harrington Elster of San Diego, an orthoepist with several excellent books to his credit, was willing to take on the task. He wisely guided us through the confusing mazes of Anglo-Latin, the only type of Latin with a continuous tradition in Anglo-American law. Even if some of the pronunciations strike you at first as odd, you can be sure that there is sound authority for them.

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PREFACE TO THE SEVENTH EDITION

On translating Greek, Latin, and French, we had the benefit of many scholars' expertise. Professors Honore and Walker supplied many of our etymologies. So did Edward Carawan and Alison Parker, both of whom hold Ph.D.s in Classics; they examined all the maxims listed in Appendix B and supplied new translations and annotations for them. As the manuscript deadline approached, I asked 30 judges, lawyers, and academ­ ics - mostly practicing lawyers to read and comment on a batch of 150 pages of manuscript each. All of them generously agreed. I am enormously grateful to each of these learned lawyers: Paul H. Anderson Beverly Ray Burlingame Jordan B. Cherrick Charles Dewey Cole Jr. Dana Fabe Stephen F. Fink Neal Goldfarb C. Kenneth Grosse Harris L. Hartz Molly H. Hatchell Lynn N. Hughes Susan L. Karamanian Joseph Kimble Edward J. Kionka Harriet Lansing Clyde D. Leland

James K. Logan Margaret L Lyle Lann G. McIntyre Paul G. McNamara John W. McReynolds Kent N. Mastores Wayne Moore James L. Nelson R. Eric Nielsen George C. Pratt Carol Marie Stapleton Scott Patrick Stolley Randall M. Tietjen Carla L. Wheeler Richard C. Wydick

What I hadn't fully reckoned, when sending out batches of manuscript, was how challenging it would be to integrate more than 4,500 pages oflightly to heavily edited text. Evaluating and entering the edits into our database took three full-time lawyers the better part of six weeks. Fortunately, Beverly Ray Burlingame of Dallas, an immensely talented editor and prodigiously hard worker, took time off from her busy law practice to help complete the project. She made huge contributions during the final stage. But hers was not the only extraordinary act of voluntarism. During the final months, Michael L. Atchley of Dallas, upon learning of our deadline, began sending us draft entries for several hundred terms that were missing from the sixth edition. His broad legal knowledge, as well as his natural aptitude for lexicography, showed in all his work. Then he generously read and commented on large stacks of manuscript. Several lawyers made important contributions beyond those I've already described. Ann Taylor Schwing of Sacramento painstakingly culled through the 90 volumes of Words and Phrases for possible inclusions, and she read large portions of the manu­ script. Elizabeth Sturdivant Kerr of Fort Worth contributed drafts of many entries for the letters E, H, and T, and she read much of the manuscript. Michelle D. Monse of Dallas contributed drafts of many L entries. Stephen W. Kotara of Dallas contributed

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to the letters F and G. Meanwhile, Terrence W. Kirk ofAustin submitted many helpful drafts of criminal-law definitions. As the work progressed, I occasionally ran queries by scholars in various legal spe­ cialties, and they all responded helpfully. Many thanks to J.H. Baker, Peter Butt, Robert W. Hamilton, Herbert J. Hammond, Geoffrey C. Hazard Jr., Gideon Kanner, Robert E. Keeton, John S. Lowe, Neil MacCormick, Joseph W. McKnight, Sir Robert Megarry, Richard A. Posner, William C. Powers Jr., Thomas M. Reavley, Christoph Schreuer, and Charles Alan Wright. In a specialized review, Marc 1. Steinberg commented on the business-law terms throughout the book. Several universities provided significant assistance. While working on the project, I was an adjunct professor at Southern Methodist University School of Law. Mean­ while, I had stints as a visiting scholar at the University of Glasgow (July 1996), under the sponsorship of Professor David M. Walker; at the University of Cambridge (July 1997), under the sponsorship of Vice-Chancellor Emeritus Sir David Williams; and at the University of Salzburg (July 1998), under the sponsorship of Professors Wolfram Karl and Christoph Schreuer. I used the libraries at each of those universities to good advantage. I also made good use of the renowned Tarlton Law Library at the University of Texas (thanks to Professor Roy M. Mersky and his colleagues). And the entire Black's team constantly used the Underwood Law Library at Southern Methodist University (thanks to Professor Gail Daly and her colleagues). Also, I was able to carry out some research at the Langdell Law Library at Harvard University. To all ofthese libraries and their staffs, I am grateful for the cordial help they unfailingly gave. Professor Mersky helped in another notable way: he and several of his colleagues ­ Beth Youngdale, Marlyn Robinson, and Monika Szakasits - generously verified the accuracy of our List of Works Cited (Appendix H). Five research assistants - extraordinarily talented law students at Southern Meth­ odist University School ofLaw - verified citations throughout the book. The editors are much indebted to Daniel Alexander, Julie Buffington, Nicole Schauf Gambrell, Peggy Glenn-Summitt, and Kenneth E. Shore. I especially thank Julie Buffington for organiz­ ing this team and ensuring the timely completion of a complex task. Karen Magnuson of Portland, who has worked on several ofmy other books, coura­ geously proofread the entire 3,500-page Single-spaced manuscript as we worked through the final draft. Her talents as a proofreader are, in my experience, unmatched. Many others contributed to the book in various ways: the late Alexander Black of Rochester began a reading program to gather illustrative quotations for our files; Thomas G. Fleming of Rochester continued that program for most of its duration; Caroline B. Garner of Dallas located historical legal terms in early dictionaries; E.N. Genovese of San Diego helped supply some foreign pronunciations; Tanya Glenn of Dallas typed the initial list of maxims; Michael Greenwald of Philadelphia helped on terms relating to the American Law Institute; and Tinh T. Ngyuen of Dallas, with unusual enthusiasm, carried out the tedious but necessary task of checking cross-references and alphabeti­ zation. At the West Group, David J. Oliveiri, Doug Powell, John Perovich, and Brendan Bauer had the imagination and the forcefulness to make the book a reality. Their

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logistical support, not to mention their moral support, helped everyone involved in the project. In the production department, Kathy Walters worked wonders to produce the book within a tight deadline. Tremendous amounts of talent and toil have gone into the making of this book. Yet the worries ofearly lexicographers have a haunting ring: this work might not prove as absolutely faultless as it has been my wish to make it. If that turns out to be so, as it inevitably will, I can only hope that readers will recognize the genuine merits residing in these pages. Bryan A. Garner Dallas, Texas June 1999

xxiii

Guide to the Dictionary 1. Alphabetization All headwords, including abbreviations, are alphabetized letter by letter, not word by word, Spaces, apostrophes, hyphens, virgules, and the like are ignored, An ampersand (&) is treated as if it were the word and, For example: Pan-American Convention

P&L

Panduit test

per annum

PIE ratio

per capita

percentage lease

per diem

peremptory

Numerals included in a headword precede the letter "a" and are arranged in ascending numerical order: Rule IOb-5

Rule 11

rule absolute

rulemaking

rule ofn

ruleof78

A numeral at the beginning of a headword is alphabetized as if the numeral were spelled out: Eighth Amendment

eight-hour law

8-K

ejection Commas break the letter-by-letter alphabetization if they are backward-looking (e,g" attorney, power oj), but not if they are forward-looking (e,g" right, title, and interest),

2. Pronunciations Boldface syllables receive primary stress: oligopoly (ol-. abdicate (ab-di-kayt), vb. cable (ab-di-ka-bal), adj. - abdicator (ab-di-kay-tar),

n. abditory (ab-di-tor-ee), n. [Law Latin abditorium "box, receptacle"] A repository used to hide and preserve goods or money. - Also termed abditorium (ab-di­ tor-ee-am). abduction (ab-d3k-shan), n. (17c) Criminal law. l. The act ofleading someone away by force or fraudulent persua­ sion. - Some jurisdictions have added various elements to this basic definition, such as that the abductor must have the intent to marry or defile the person, that the abductee must be a child, or that the abductor must intend to subject the abductee to concubinage or pros­ titution. 2. Archaic. The crime of taking away a female person, esp. one who is below a certain age (such as 16 or 18), without her effective consent by use of persua­ sion, fraud, or violence, for the purpose prostitution, or illicit sex. [Cases: Criminal Law 45.10.] 3. Loosely, KIDNAPPING. See ENTICEMENT OF A CHILD. abduct, vb. - abductor, n. - abductee, n. "Abduction seems not to have been a crime at early common law. but found its way thereinto through an old English statute which defined the crime substantially as the taking of a woman against her will for lucre. and afterwards marrying her. or causing her to be married to another, or defiling her, or causing her to be defiled." Justin Miller, Handbook of Criminal Law § 104. at 319 (1934).

abearance (a-bair-ants), n. Archaic. Behavior; conduct. "The other species of recognizance. with sureties, is for the good abearance, or good behaviour. This includes security for the peace ... ," 4 William Blackstone. Commentaries on the Laws of England 253 (1769).

ab epistolis (ab ee-pis-ta-lis), n. [Latin] Hist. An officer who maintained the correspondence (epistolae) for a superior; a secretary. Abercrombie classification. Trademarks. A characteriza­ tion of a trade designation - whether by mark, name, or dress as generic, descriptive, suggestive, and arbi­ trary or fanciful, in increasing order of distinctiveness. Abercrombie & Fitch Co. v. Hunting World, Inc., 537 F.2d 4, 9 (2d Cir. 1976). [Cases: Trademarks (;:::> 1033.]

4

aberrant behavior (a-ber-ant). (1924) A Single act of unplanned or thoughtless criminal behavior.• Many courts have held that aberrant behavior justi­ fies a downward departure that is, a more lenient sentence - under the federal sentencing guidelines, based on a comment in the introduction to the Guide­ lines Manual to the effect that the guidelines do not deal with Single acts of aberrant behavior. U.S. Sen­ tencing Guidelines Manual, ch. 1, pt. A, ! 4. [Cases: Sentencing and Punishment C;:::>868.] abesse (ab-es-ee), vb. [Law LatinJ Roman & civi/law. To be absent; to be away from a place where one is supposed to be (as before a court). Cf. ADESSE. abet (a-bet), vb. (14c) 1. To aid, encourage, or assist (someone), esp. in the commission of a crime . 2. To support (a crime) by active assis­ tance . [Cases: Criminal Law 59(5).J See AID AND ABET. Cf. INCITE. abetment,

n. abettor. A person who instigates the commission of a crime or advises and encourages others to commit it. ­ Also spelled abetter. See principal in the second degree under PRINCIPAL. [Cases: Criminal LawC;:::>59.J ab extra (ab ek-stra), adv. [Latin] From outside; extra; beyond. abeyance (a-bay-ants), n. (17c) 1. Temporary inactivity; suspension. 2. Property. A lapse in succession during which no person is vested with title. abeyant, adj. "Abeyance. from the French bayer, to expect. is that which is in expectation. remembrance. and intendment of law. Bya prinCiple of law, in every land there is a fee simple in somebody. or else it is in abeyance; that is, though for the present it be in no man. yet it is in expectancy belonging to him that is next to enjoy the land." 1 Richard Burn. A New Law Dictionary 4 (1792).

abiaticus (ab-ee-ay-td-kas), n. [Law Latin "descended from a grandfather"] Hist. A grandson in the male line; a son's son. - Also spelled aviaticus. abide, vb. (bef. 12c) 1. To tolerate or withstand . 2. To obey; (with by) to act in accordance with or in conformity to . 5. To stay or dwell . ab identitate ration is (ab I-den-ti-tay-tee ray-shee-oh­ nis or rash-ee-oh-nis). [Law Latin] Hist. By identity of reason; for the same reason. abiding conviction. See CONVICTION. abigeatus (a-bij-ee-ay-tas), n. [Latin] Roman & civil law. The act ofstealing cattle by driving them away (abigere); cattle rustling. - In the later civil law, the usual term for this was abaction. - Also termed abigeat. abigeus (a-bij-ee-as), n. [Latin] Roman & civil law. One who steals cattle, esp. in large numbers; a cattle rustler.

abnormally dangerous activity

5

• This was known in the later civil law as an abactor.

PI. abigei. 'The stealing of a single horse or ox might make a man an abigeus, but it seems that the crime could not be com· mitted on less than four pigs or ten sheep. They need not however be taken all together. In such a state of the law one would expect thefts of three pigs or eight sheep to become abnormally common." 1 James Fitzjames Stephen, A History of the Criminal Law of England 27 (1883).

ability. (l4c) The capacity to perform an act or service; esp., the power to carry out a legal act . present ability. The actual, immediate power to do something (esp. to commit a crime). ab inconvenienti (ab in-k;:m-vee-nee-en-tI), adv. [Law Latin] From hardship or inconvenience. See argumen­ tum ab inconvenienti under ARGUMENTUM. ab initio (ab i-nish-ee-oh), adv. [Latin) (16c) From the beginning . Cf. IN INITIO. ab intestato (ab in-tes-tay-toh), adv. [Latin] By intes­ tacy <succession ab intestato is often treated as being necessary because of the neglect or misfortune of the deceased proprietor>. Cf. EX TESTAMENTO. ab invito (ab in-vI-toh), adv. [Latin) By or from an unwill­ ing party; against one's will . Cf. IN INVITUM. ab irato (ab I-ray-toh), adv. [Latin) By one who is angry.• This phrase usu. refers to a gift or devise made adversely to an heir's interests, out of anger. An action to set aside this type ofconveyance was known at common law as an action ab irato. abishering. See MISKERING. abjudge (ab-j~j), vb. Archaic. To take away or remove (something) by judicial decision. Cf. ADJUDGE. "As a result of the trial a very solemn judgment is pro· nounced. The land is adjudged to the one party and his heirs, and abjudged (abiudicata) from the other party and his heirs for ever." 2 Frederick Pollock & FrederiC W. Maitland, The History of English Law Before the Time of Edward 163 (2d ed. 1899).

abjudicatio (ab-joo-di-kay-shee-oh), n. [Law Latin) The act of depriving a person of a thing by judicial decision. abjuration (ab-juu-ray-sh;m), n. A renouncing by oath. abjuration of the realm. An oath taken to leave the realm forever. "If a malefactor took refuge [in sanctuary] ... the coroner came and parleyed with the refugee, who had his choice between submitting to trial and abjuring the realm. If he chose the latter course, he hurried dressed in pilgrim'S guise to the port that was assigned to him, and left England, being bound by his oath never to return. His lands escheated; his chattels were forfeited, and if he came back his fate was that of an outlaw." 2 Frederick Pollock & Frederic William Maitland, History of English Law Before the Time of Edward I 590 (2d ed. 1899).

abjure (ab-joor), vb. 1. To renounce formally or on oath . abjuratory (ab-joor-207.] ablocation (ab-Ioh-kay-shan). Archaic. The leasing of property for money. Cf. LOCATIO. abmatertera (ab-ma-t~r-t;)r- 100.] aborticide. See ABORTIFACIENT. abortifacient (375,559(3); Secured Transactions C= 230,240.] absolute contraband. See CONTRABAND. absolute conveyance. See CONVEYANCE. absolute covenant. See COVENANT (1). absolute deed. See DEED. absolute defense. See real defense under DEFENSE (4). absolute delivery. See DELIVERY. absolute disparity. (1976) Constitutionallaw.lhe differ­ ence between the percentage of a group in the general population and the percentage of that group in the pool of prospective jurors on a venire. - For example, ifAfrican-Americans make up 12% of a county's popu­ lation and 8% of the potential jurors on a venire, the absolute disparity of African-American veniremem­ bers is 4%. The reason for calculating the disparity is to analyze a claim that the jury was not impartial because the venire from which it was chosen did not represent a fair cross-section of the jurisdiction's population. Some courts criticize the absolute-disparity analysis, favoring instead the comparative-disparity analysis, in the belief that the absolute-disparity analysis under­ states the deviation. See FAIR-CROSS-SECTION REQUIRE­ MENT; DUREN TEST; STATISTICAL-DECISION THEORY. Cf. COMPARATIVE DISPARITY. [Cases: JuryC=·33(1.1).] absolute divorce. See divorce a vinculo matrimonii under DIVORCE.

absolute duty. See DUTY (1). absolute estate. See ESTATE (1). absolute gift. See inter vivos gift under GIFT. absolute guaranty. See GUARANTY. absolute immunity. See IMMUNITY (1). absolute interest. See INTEREST (2). absolute law. (16c) A supposed law of nature thought to be unchanging in principle, although circumstances may vary the way in which it is applied. See NATURAL LAW.

absolute legacy. See LEGACY. absolute liability. See strict liability under LIABILITY. absolute majority. See MAJORITY. absolute martial law. See MARTIAL LAW. absolute novelty. See NOVELTY. absolute nuisance. See NUISANCE. absolute nullity. See NULLITY. absolute obligation. See OBLIGATION. absolute pardon. See PARDON. absolute pollution exclusion. See pollution exclusion under EXCLUSION (3).

8

absolute presumption. See conclusive presumption under PRESUMPTION.

absolute-priority rule. Bankruptcy. The rule that a confirmable reorganization plan must provide for full payment to a class of dissenting unsecured credi­ tors before a junior class of claimants will be allowed to receive or retain anything under the plan. - Some jurisdictions recognize an exception to this rule when a junior class member, usu. a partner or shareholder of the debtor, contributes new capital in exchange for an interest in the debtor. 11 USCA § 1129(b)(2)(B)(ii). [Cases: Bankruptcy C=3561.] absolute privilege. See PRIVILEGE (1). absolute property. See PROPERTY. absolute right. See RIGHT. absolute sale. See SALE. absolute simulated contract. See CONTRACT. absolute title. See TITLE (2). absolute veto. See VETO. absolutio (ab-s;}-loo-shee-oh). See ABSOLUTION (2). absolution (ab-sd-Ioo-sh;m). 1. Release from a penalty; the act of absolving. 2. Civil law. An acquittal of a criminal charge. - Also termed absolutio. 3. Eccles. law. Official forgiveness of a sin or sins. absolutism (ab-s;}-]oo-tiz-;}m), n. In politics, the rule of a dictator whose power has no restrictions, checks, or balances; the belief in such a dictatorship. absolutist (ab-sa-Ioo-tist), adj. & n. absolve (ab- or ;}b-zolv), vb. (15c) 1. To release from an obligation, debt, or responsibility. 2. To free from the penalties for misconduct. - absolver, n. absolvitor (ab-sol-vi-tar), n. Scots law. A decision in a civil action in favor of the defender; an acquittal. ­ absolvitory, adj. absorbable risk. See RISK. absorption, n. (18c) 1. The act or process of including or incorporating a thing into something else; esp., the application of rights guaranteed by the U.S. Constitu­ tion to actions by the states. 2. Int'llaw. The merger of one nation into another, whether voluntarily or by subjugation. 3. Labor law. In a postmerger collective­ bargaining agreement, a provision allowing senior­ ity for union members in the resulting entity. 4. Real estate. The rate at which property will be leased or sold on the market at a given time. 5. Commercial law. A sales method by which a manufacturer pays the reseH­ er's freight costs, which the manufacturer accounts for before quoting the reseUer a price. - Also termed (in sense 5) freight absorption. - absorb, vb. absque (abs-kwee), adv. [Latin] Without. absque aliquo inde reddendo (abs-kwee al-a-kwoh in-dee ri-den-doh), adv. [Law Latin] Rist. Without ren­ dering anything therefrom. - This phrase appeared in royal grants in which no tenure was reserved.

9

absque consideratione curiae (abs-kwee kan-sid-a-ray­ shee-oh-nee kyoor-ee-ee), adv. [Law Latin] Without the consideration of the court; without judgment. absque dubio (abs-kwee d[yJoo-bee-oh), adv. [Latin] Without doubt. absque hoc (abs-kwee hok), adv. [Latin] Archaic. Without this. - The phrase was formerly used in common-law pleading to introduce the denial of allegations. - Also termed sans ce que. See TRAVERSE. absque impetitione vasti (abs-kwee im-pa-tish-ee­ oh-nee vas-tIl, adv. [Law Latin] Hist. See WITHOUT IMPEACHMENT OF WASTE. absque injuria damnum (ab-skwee in-joor-ee-a dam­ nam). [Civil law] See DAMNUM SINE INJURIA. Often shortened to absque injuria. absque ipsius regis speciali licentia (abs-kwee ip-see-as ree-jis spesh-ee-ay-h li-sen-shee-a). [Law Latin] Hist. Without the special authority ofthe king himself. - The phrase was part ofa law forbidding Crown vassals from transferring land without a special warrant. absque tali causa (abs-kwee tay-II kaw-za), adv. [Law Latin] Without such cause. _ In common-law pleading, this was part ofthe larger phrase de injuria sua propria, absque tali causa ("of his own wrong, without such cause") appearing in a reply that a trespass plaintiff made to counter a defendant's claim of excuse. In an assault case, for example, if a defendant pleaded that he had struck the plaintiff in self-defense, the plaintiff could reply that the defendant was gUilty of his own wrong committed without such cause as alleged. See DE INJURIA. ABS Rules. Maritime law. Industry standards for the construction, maintenance, and operation ofseagoing vessels and stationary offshore facilities, as set and enforced by the American Bureau of Shipping. See AMERICAN BUREAU OF SHIPPING. [Cases: Shipping C:;:> 14.] abstain, vb. 1. To voluntarily refrain from doing some­ thing, such as voting in a deliberative assembly. 2. (Of a federal court) to refrain from exercising jurisdiction over a matter. [Cases: Federal Courts C:::>41-65.] abstention. (16c) 1. The act of Withholding or keeping back (something or oneself); esp., the act of abstain­ ing from voting. 2. A federal court's relinquishment of jurisdiction when necessary to avoid needless contlict with a state's administration of its own affairs. 3. The legal principle underlying such a relinquishment of jurisdiction. Cf. COMITY; OUR FEDERALISM. [Cases: Federal Courts C:::>41-65.] Burford abstention. (1967) A federal court's refusal to review a state court's decision in cases involVing a complex regulatory scheme and sensitive areas of state concern. Burford v. Sun Oil Co., 319 U.S. 315,63 S.Ct. 1098 (1943). [Cases: Federal Courts C:::>43.] Colorado River abstention. (1976) A federal court's decision to abstain while relevant and parallel state­ court proceedings are under way. Colorado River

abstract

Water Conservation Dist. v. United States, 424 U.S. 800,96 S.Ct. 1236 (1976). [Cases: Federal Courts C:::> 43.] equitable abstention. A federal court's refraining from interfering with a state administrative agency's decision on a local matter when the aggrieved party has adequate relief in the state courts. permissive abstention. Bankruptcy. Abstention that a bankruptcy court can, but need not, exercise in a dispute that relates to the bankruptcy estate but that can be litigated, or is being litigated, in another forum. - In deciding whether to abstain, the bank­ ruptcy court must consider (1) the degree to which state law governs the case, (2) the appropriateness of the procedure to be followed in the other forum, (3) the remoteness of the dispute to the issues in the bankruptcy case, and (4) the presence of nondebtor parties in the dispute. 28 USCA § 1334(c)(I). [Cases: Federal Courts ~-::>47.5.] Pullman abstention. (1963) A federal court's decision to abstain so that state courts will have an opportu­ nity to settle an underlying state-law question whose resolution may avert the need to decide a federal con­ stitutional question. Railroad Comm'n v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643 (1941). [Cases: Federal Courts C:::>43, 46.] Thibodaux abstention (tib-a-doh). (1974) A federal court's decision to abstain so that state courts can decide difficult issues of public importance that, if decided by the federal court, could result in unnec­ essary friction between state and federal authorities. Louisiana Power & Light Co. v. City afThibodaux, 360 U.S. 25, 79 S.Ct. 1070 (1959). [Cases: Federal Courts 43.] Younger abstention. (1972) 1. A federal court's decision not to interfere with an ongoing state criminal pro­ ceeding by issuing an injunction or granting declara­ tory relief, unless the prosecution has been brought in bad faith or merely as harassment. Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746 (1971). Also termed equi­ table-restraint doctrine. [Cases: Federal Courts C:::>49, 51,54.] 2. By extension, a federal court's decision not to interfere with a state-court civil proceeding used to enforce the criminal law, as to abate an obscene nuisance. See OUR FEDERALISM. abstinence (ab-sta-n.Jnts). 1be practice of refraining completely from indulgence in some act; esp., the practice of not having sex or of not consuming alco­ holic beverages. abstract, n. (15c) 1. A concise statement of a text, esp. of a legal document; a summary. See ABSTRACT OF JUDGMENT; ABSTRACT OF TITLE. 2. Patents. A one-para­ graph summary ofan invention's design and function, including its nature, structure, purpose, and novelty. - The abstract is a required part of a patent applica­ tion, and also appears on the front page of the patent itself. It may not exceed 150 words. For the purpose of determining adequacy of disclosure, the abstract is

abstract compromis

considered to be part of the specification. See 35 USCA § 112. Also termed abstract ofthe disclosure; abstract ofthe specification. [Cases: Patents ~99.] abstract compromis. See general compromis under COM­ PROMIS.

abstracter. See ABSTRACTOR. abstract idea. Intellectual Property. A concept or thought, removed from any tangible embodiment. ­ An abstract idea is one of the categories of unpatent­ able subject matter, along with natural phenomena and laws of nature. But a process that uses abstract ideas to produce a useful result can be patented. Copyright law likewise will not protect an abstract idea, but only its expression. The law of unfair competition, on the other hand, does protect abstract ideas that meet the other criteria of a trade secret. See business-method patent under PATENT. [Cases: Patents ~6.] abstraction (ab- or . 2. A theoretical idea not applied to any particular instance . 3. The summarizing and recording of a legal instrument in public records . 4. The act of taking with the intent to injure or defraud . abstract (ab-strakt), vb. abstraction-filtration-comparison test. Copyright. A judicially created test for determining whether sub­ stantial similarity exists between two works in an action for infringement. _ First, the court dissects the copyrighted work's structure and isolates each level of abstraction or generality (abstraction test). Second, the court examines each level ofabstraction and separates out the unprotectable elements such as ideas, processes, facts, public-domain information, and merger material (filtration test). Finally, the court compares the result­ ing core of protectable expression with the accused work to determine whether substantial elements of the copyrighted work have been misappropriated (com­ parison test). This test was first applied by the Second Circuit in Computer Associates Int'l, Inc. v. Altai, Inc., 982 F.2d 693 (2d Cir. 1992). Although that case involved computer software and the test is usu. applied in software-infringement cases, the test has also been applied to nonsoftware works. - Also termed abstrac­ tion-filtration test. See SIMILARITY. Cf. ABSTRACTIONS TEST. [Cases: Copyrights and Intellectual PropertyG= 53(1).] abstractions test. Copyright. A means of comparing copyrighted material with material that allegedly infringes the copyright by examining whether the actual substance has been copied or whether the two works merely share the same abstract ideas. - The primary authority for the abstractions test is Judge Learned Hand's opinion in Nichols v. Universal Pictures Corp., 45 F.2d 119 (2d Cir. 1930). Although referred to as a "test," it is not a bright-line test, but an approach

10

to discerning the boundaries of protectable expression by isolating and comparing each level of abstraction in the two works, from the lowest (most detailed) to the highest (most conceptual). Cf. ABSTRACTION-FILTRA­ TION-COMPARISON TEST; LOOK-AND-FEEL TEST. [Cases: Copyrights and Intellectual Property (;::>53(1).] abstract juridical act. See ACT. abstract of a fine. See NOTE OF A FINE. abstract ofconviction. A summary ofthe court's finding on an offense, esp. a traffic violation. [Cases: Automo­ biles ~ 144.2(5.1).] abstract of judgment. (1812) A copy or summary of a judgment that, when filed with the appropriate public office, creates a lien on the judgment debtor's nonex­ empt property. See judgment lien under LIEN. [Cases: Judgment ~768(1).] abstract of record. An abbreviated case history that is complete enough to show an appellate court that the questions presented for review have been preserved. Criminal Law [Cases: Appeal and Error 1103.] abstract of the disclosure. See ABSTRACT (2). abstract of the specification. See ABSTRACT (2). abstract of title. (1858) A concise statement, usu. prepared for a mortgagee or purchaser ofreal property, summarizing the history of a piece of land, including all conveyances, interests, liens, and encumbrances that affect title to the property. Also termed brief; briefof title. [Cases: Abstracts ofTitle good and merchantable abstract oftitle. An abstract of title shOWing clear, good, and marketable title, rather than showing only the history of the property. See clear title, good title, and marketable title under TITLE

(2).

abstractor (ab- or 26.]2. An appellate court's standard for reviewing a decision that is asserted to be grossly unsound, unreasonable, illegal, or unsupported by the evidence. See DISCRETION (4). [Cases: Appeal and Error C=>946; Federal Courts C=>812.] abuse of distress. Hist. The wrongful seizure and use of another's property as a means of collecting damages or coercing the property's owner to perform a duty. abuse of process. (1809) The improper and tortious use of a legitimately issued court process to obtain a result that is either unlawful or beyond the process's scope. Also termed abuse of legal process; malicious abuse ofprocess; malicious abuse o/legal process; wrongful process; wrongful process of law. Cf. MALICIOUS PROS­ ECUTION. [Cases: Process C=> l72-213.] "One who uses a legal process, whether criminal or civil, against another primarily to accomplish a purpose for which it is not designed is subject to liability to the other for harm caused by the abuse of process." Restatement (Second) of Torts § 682 (1977).

abuse of rights. 1. Int'llaw. A country's exercise of a right either in a way that impedes the enjoyment by other countries of their own rights or for a purpose different from that for which the right was created (e.g., to harm another country). 2. Louisiana law. A person's exercise of a right in an unneighborly spirit that provides no benefit to the person but causes damage to the neighbor. abuse-of-rights doctrine. Civil law. The principle that a person may be liable for harm caused by doing some­ thing the person has a right to do, if the right is exer­ cised (1) for the purpose or primary motive of causing harm, (2) without a serious and legitimate interest that is deserving of judicial protection, (3) against moral rules, good faith, or elementary fairness, or (4) for a purpose other than its intended legal purpose. [Cases: Torts C=>435.]

abuse of the elderly

abuse of the elderly. See ABUSE. abuse-of-the-writ doctrine. (I973) Criminal procedure. The principle that a petition for a writ ofhabeas corpus may not raise claims that should have been, but were not, asserted in a previous petition. Cf. SUCCESSIVE­ WRIT DOCTRINE. [Cases: Habeas Corpus e:.~896.] abuser (a-byoo-zar), n. 1. One who abuses someone or something. 2. ABUSE (1). abusive (.3-byoo-siv), adj. 1. Characterized by wrongful or improper use . 2. (Of a person) habitually cruel, malicious, or violent . - abusively, adv. abusus (.3-byoo-s.3s), n. Civil law. The right to dispose of one's property. abut (a-b;)t), vb. (15c) To join at a border or boundary; to share a common boundary with 66-84.] 4. A negotiable instrument, esp. a bill of exchange, that has been accepted for payment. acceptance au besoin (oh b;l-zwan). [French "in case of need"] An acceptance by one who has agreed to pay the draft in case the drawee fails to do so. acceptance for honor. An acceptance or undertaking not by a party to the instrument, but by a third party, for the purpose of protecting the honor or credit of one of the parties, by which the third party agrees to pay the debt when it becomes due if the original drawee does not. • This type of acceptance inures to the benefit of all successors to the party for whose benefit it is made. - Also termed acceptance supra protest; acceptance for honor supra protest. [Cases: Bills and Notes (::=>7l.] '''Acceptance for honour supra protest' is an exception to the rule that only the drawee can accept a bill. A bill which has been dishonoured by non-acceptance and is not overdue may, with the consent of the holder, be accepted in this way for the honour of either the drawer or an indorser (i.e., to prevent the bill being sent back upon the drawer or indorser as unpaid) by a friend placing his own name upon it as acceptor for the whole, or part only, of the amount of the bill; after a protest has been drawn up declaratory of its dishonour by the drawee. Similarly, where a bill has been dishonoured by non-payment and protested any person may intervene and pay it supra protest for the honour of any person liable thereon; the effect being to discharge all parties subsequent to the party for whose honour it is paid." 2 Stephen's Commentaries on the Laws of England 202-03 (L. Crispin Warmington ed., 21 st ed. 1950).

accommodation acceptance. (1807) The acceptance of an offer to buy goods for current or prompt shipment by shipping nonconforming goods after notifying the buyer that the shipment is intended as an accommo­ dation.• This type of "acceptance" is not truly an acceptance under contract law, but operates instead as a counteroffer if the buyer is duly notified. [Cases: Sales (::=>23(4).] banker'S acceptance. A bill of exchange drawn on and accepted by a commercial bank. • Banker'S accep­ tances are often issued to finance the sale of goods in international trade. - Abbr. BA. - Also termed bank acceptance. [Cases: Banks and Banking (::=> 189; Bills and Notes (::=> 15l.] blank acceptance. Acceptance by a bill-of-exchange drawee before the bill is made, as indicated by the drawee's signature on the instrument. conditional acceptance. An agreement to pay a draft on the occurrence or nonoccurrence of a particular event. [Cases: Bills and Notes (::=>83.]

acceptance au besoin

14

"And in some instances, insurance companies have even specified in the application forms that acceptance of an applicant'S offer will not occur until the insurance policy is literally delivered to the applicant that is, the insurer chooses to structure the arrangement so that acceptance is to be manifested by the physical delivery of the insur­ ance policy to the applicant." Robert E. Keeton & Alan I. Wid iss, Insurance Law: A Guide to Fundamental Principles, Legal Doctrines, and Commercial Practices § 2.1, at 39-40 (1988).

acceptance for honor. See ACCEPTANCE (4). acceptance-of-the-benefits rule. (1972) The doctrine that a party may not appeal a judgment after having voluntarily and intentionally received all or some part of the relief provided by it. [Cases: Appeal and Error C::c 160; Federal Courts (;::::>543.] acceptance sampling. The practice of examining only a few items from a shipment to determine the accept­ ability of the whole shipment. acceptance supra protest. See acceptance for honor under ACCEPTANCE (4). acceptance testing. Intellectual Property. Formal experi­ ments conducted by or on behalf of the customer to determine whether computer software or hardware or a commercial website satisfies the customer's accep­ tance criteria .• Usu., an acceptance-testing provision in a sales contract or license agreement is accompanied by a termination provision allowing the customer to back out of the contract if the product is not accept­ able. Also termed requirements testing. See ACCEP­ TANCE CRITERIA. [Cases: Copyrights and Intellectual Property (;::::> lO7.] acceptare (ak-sep4air-ee), vb. [Latin] Civil law. To accept or assent to, as a promise made by another. accepted-work doctrine. See ACCEPTANCE DOCTRINE. acceptilation (ak-sep-td-lay-sh;m), n. [fro Latin accepti­ latio "release"] Roman & civil law. An oral release from an obligation even though payment has not been made in full; a complete discharge, esp. through a fictitious payment. Also termed (in Roman law) acceptilatio. Cf.APOCHA. acceptor. A person or entity that accepts a negotiable instrument and agrees to be primarily responsible for its or performance. [Cases: Bills and Notes

6. An heir's agreement to take an inheritance. See TACIT ACCEPTANCE. 7. See ADOPTION (5). accept, vb. acceptance au besoin. See ACCEPTANCE (4). acceptance by silence. See ACCEPTANCE (1). acceptance company. See sales finance company under FI:-lANCE COMPANY. acceptance credit. See time letter ofcredit under LETTER OF CREDIT. acceptance criteria. Intellectual Property. Agreed-on performance standards that custom-made products such as computer software or hardware or a commer­ cial website must meet before the customer is legally obligated to accept the product and pay for it. acceptance doctrine. Construction law. The principle that, once a property owner accepts the work of a con­ tractor, the contractor is not liable to third parties for an injury arising from the contractor's negligence in performing under the contract, unless the injury results from a hidden, imminently dangerous defect that the contractor knows about and the owner does not know about. Also termed accepted-work doctrine. [Cases: Negligence 1205(8).J

acceptor supra protest. One who accepts a bill that has been protested, for the honor of the drawer or an indorser. See acceptance for honor under ACCEPTANCE (4). [Cases: Bills and Notes C=> 71,80.] accept service. To agree that process has been properly served even when it has not been. Also termed accept service ofprocess. [Cases: Process 166.] access, n. 1. An opportunity or ability to enter, approach, pass to and from, or communicate with . 2. Family law. VISITATION (2). 3. Family law. The opportunity to have sexual intercourse. Cf. NON­ ACCESS. multiple access. Hist. In a paternity suit, the defense that the mother had one or more sexual partners other than the defendant around the time of concep­ tion.• The basis for the defense is that because the mother bears the burden of proof, she must be able to prove that only the defendant could be the child's father. In some jurisdictions, this is still known by its common-law name, the exceptio plurium concuben­ tium defense, or simply the plurium defense. Juries or judges who wished to dismiss the case because

express acceptance. A written or oral expression indi­ cating that the drawee has seen the instrument and does not dispute its sufficiency.• While a written acceptance is typically signified by the stamped or written word "accepted" or "presented," usu. on the instrument itself, an oral acceptance must be made directly to a drawer or holder who has waived the right to a written acceptance. implied acceptance. An acceptance implied by a drawee whose actions indicate an intention to comply with the request of the drawer; conduct by the drawee from which the holder is justified in concluding that the drawee intends to accept the instrument. [Cases: Bills and Notes =-70.] special acceptance. An acceptance that departs from either the terms of a bill or the terms added to but not otherwise expressed in a bilL. An example is an acceptance of a draft as payable in a particular place even though the draft contains no such limitation. Bills and Notes (;::::>83.] trade acceptance. A bill of exchange for the amount of a specific purchase, drawn on and accepted by the buyer for payment at a speCified time. [Cases: Bills and Notes (;=) 1.] 5. An insurer's agreement to issue a policy of insurance. [Cases: Insurance (;::::> 1731.]

accessory

15

of the mother's promiscuity, rather than because of the improbability of the defendant's paternity, often accepted this defense. Most states have now abro­ gated the defense. In recent years the issue of multiple access has declined in importance with the rise of highly accurate paternity testing. [Cases: Children Out-of-Wedlock C=;>50.] 4. Patents & Trademarks. The right to obtain infor­ mation about and to inspect and copy U.S. Patent and Trademark Office files of patents, patent applications, trademark applications, and inter partes proceedings pertaining to them. 5. Copyright. An opportunity by one accused of infringement to see, hear, or copy a copyrighted work before the alleged infringement took place .• Proof of access is required to prove copyright infringement unless the two works are strikingly similar. [Cases: Copyrights and Intellectual Property C=;>83(3.1).] "Since direct evidence of copying is rarely available, a plaintiff can rely upon circumstantial evidence to prove this essential element; the most important component of such circumstantial evidence to support a copyright infringement claim is proof of access. Evidence of access and substantial similarity create an inference of copying and establish a prima facie case of copying." 18 Am. Jur. 2d Copyright and Literary Property § 206 (1985).

6. Copyright. The right to obtain information about

and to inspect and copy U.S. Copyright Office files and deposited materials. See (for senses 3 & 4) POWER TO INSPECT. - access, vb. access easement. See EASEMENT. accessio (ak-s;}sh-ee-oh) n. [Latin] Roman law. 1. The doctrine by wp.ich something of lesser size, value, or importance is integrated into something of greater size, value, or importance. "If the identity of one thing (the accessory) is merged and lost in the identity of the other (the principal), the owner of the principal is the owner of the thing .... There is said to be accessio . ... The term is used by some com­ mentators (and, following them, by the French Civil Code) in a much wider sense to include all cases in which there has been an addition to my right, i.e. in which the object of my ownership has increased. The owner of an animal therefore acquires ownership of the young of the animal at birth by accessio, though in physical terms there has been not an accession but a separation. In this sense accessio includes all the original natural modes except occupatio and thesauri inventio. And there are other, intermediate, meanings. Since accessio as an abstract word is not Roman and no clear classification emerges from the texts, no one meaning or classification can be said to be 'right,' but those adopted by the French Civil Code are so wide as to be almost meaningless." Barry Nicholas, An Introduction to Roman Law 133 & n.1 (1962).

2. ACCESSION (4).

accession (ak-sesh-.m). (16c) 1. The act of acceding or agreeing . 2. A coming into possession of a right or office . 3. Int'l law. A method by which a nation that is not among a treaty's original signatories becomes a party to it. . See Vienna Convention on the Law of Treaties, art. 15 (1155 U.N.T.S. 331, 8 LL.M. 679 (1969)). - Also termed adherence; adhesion. See INSTRUMENT OF ACCESSION. 4. The acquisition of title to personal property by bestow­ ing labor on a raw material to convert it to another thing 68,8l.] "An accessory before the fact is a person who procures or advises one or more of the principals to commit the felony. This definition requires from him an instigation so active that a person who is merely shown to have acted as the stake-holder for a prize-fight, which ended fatally, would not be punishable as an accessory. The fact that a crime has been committed in a manner different from the mode which the accessory had advised will not excuse him from liability for it. Accordingly if A hires B to poison C, but B instead kills C by shooting him, A is none the less liable as accessory before the fact to COs murder. But a man who has counselled a crime does not become liable as accessory if, instead of any form of the crime suggested, an entirely

16 different offence is committed." J.W. Cecil Turner, Kenny's Outlines of Criminal Law 88 (16th ed. 1952).

accessory building. See BUILDING. accessory contract. See CONTRACT. accessory obligation. See OBLlGATION. accessory right. See RIGHT. accessoryship. The status or fact ofbeing an accessory. ­ Also termed (loosely) accession. accessory thing. See THING. accessory use. See USE (1). access to counsel. See RIGHT TO COUNSEL. access to justice. The ability within a society to use courts and other legal institutions effectively to protect one's rights and pursue claims. access-to-justice commissiou. An agency of a state's judicial system designed to encourage the judicial, executive, and legislative branches of government, the bar, law schools, legal-aid providers, and others to work together to proVide civil legal services to low-income citizens. accident, n. (14,) 1. An unintended and unforeseen inju­ rious occurrence; something that does not occur in the usual course of events or that could not be reasonably anticipated. 2. Equity practice. An unforeseen and injurious occurrence not attributable to the victim's mistake, negligence, neglect, or misconduct; an unan­ ticipated and untoward event that causes harm. "The word 'accident,' in accident poliCies, means an event which takes place without one's foresight or expecta­ tion. A result, though unexpected, is not an accident; the means or cause must be aCCidental. Death resulting from voluntary physical exertions or from intentional acts of the insured is not aCCidental, nor is disease or death caused by the viciSSitudes of climate or atmosphere the result of an accident; but where, in the act which precedes an injury, something unforeseen or unusual occurs which produces the injury, the injury results through accident." lAjohn Alan Appleman &jean Appleman, Insurance Law and Practice § 360, at 455 (rev. vol. 1981). "Policies of liability insurance as well as property and personal injury insurance frequently limit coverage to losses that are caused by 'accident.' In attempting to accommodate the layman's understanding of the term, courts have broadly defined the word to mean an occur­ rence which is unforeseen, unexpected, extraordinary, either by virtue of the fact that it occurred at all, or because of the extent of the damage. An aCCident can be either a sudden happening or a slowly evolving process like the percolation of harmful substances through the ground. Qualification of a particular incident as an accident seems to depend on two criteria; 1. the degree of foreseeability, and 2. the state of mind of the actor in intending or not intending the result." John F. Dobbyn, Insurance Law in a Nutshell 128 (3d ed. 1996).

culpable accident. An accident due to negligence. _ A culpable accident, unlike an unavoidable accident, is no defense except in those few cases in which wrongful intent is the exclusive and necessary basis for liability. unavoidable accident. An accident that cannot be avoided because it is produced by an irresistible

accommodation

17

physical cause that cannot be prevented by human skill or reasonable foresight. • Examples include acci­ dents resulting from lightning or storms, perils of the sea, inundations or earthquakes, or sudden illness or death. Unavoidable accident has been considered a means of avoiding both civil and criminalliabil­ ity. Also termed inevitable accident; pure accident; unavoidable casualty. Cf. ACT OF GOD. lCases: Auto­ mobiles (::::::.201(10); Negligence (::::::-440.] "Inevitable accident ... does not mean a catastrophe which could not have been avoided by any precaution whatever, but such as could not have been avoided by a reasonable man at the moment at which it occurred, and it is common knowledge that a reasonable man is not credited with per· fection of judgment." P.H. Winfield, A Textbook of the Law of Tort § 15, at 43 (5th ed. 1950). "An unavoidable accident is an occurrence which was not intended and which, under all the circumstances, could not have been foreseen or prevented by the exercise of reasonable precautions. That is, an accident is considered unavoidable or inevitable at law if it was not proximately caused by the negligence of any party to the action, or to the accident:' W. Page Keeton et al.. The Law of Torts § 29, at 162 (5th ed. 1984).

accidental, adj. 1. Not having occurred as a result of anyone's purposeful act; esp., resulting from an event that could not have been prevented by human skill or reasonable foresight. 2. Not having been caused by a tortious act. accidental death. See DEATH. accidental-death benefit. An insurance-policy provi­ sion that allows for an additional payment (often double the face amount of the policy) if the insured dies as a result of an accident, as defined in the policy, and not from natural causes. Abbr. ADB. [Cases: Insurance (,'='2599.]

accidental harm. See HARM. accidentalia (ak-si-den-tay-lee-;J). [Law Latin "accidental things"] Hist. Incidents ofa contract; nonessential con­ tractual terms to which the parties expressly stipulate. Cf. ESSENTALIA. "Accidentalia have their existence entirely by express stipu· lation, and are never presumed without it." William Bell,

Bel/'S Dictionary and Digest of the Law of Scotland 406 (George Watson ed., 7th ed. 1890).

accidentalia feudi (ak-si-den-tay-lee-a fyoo-dl). [Law Latin] Hist. All nonessential terms in a feudal contract; esp., those that are not essential to the fee (such as building restrictions). Cf. ESSENTIALIA FEUD!.

accidental injury. See INJURY. accidental killing. (17c) Homicide resulting from a lawful act performed in a lawful manner under a reasonable belief that no harm could occur. - Also termed death by misadventure; homicide by misadventure; killing by misadventure; homicide per infortunium. See justifiable homicide under HOMICIDE; involuntary manslaughter under MANSLAUGHTER. Cf. MALICIOUS KILLING. [Cases: Homicide accidental stranding. See STRANDING.

accident and health insurance. See health insurance under INSURANCE. accident-based insurance. See occurrence-based liability insurance under INSURANCE. accident insurance. See INSURANCE. accident policy. See INSURANCE POLICY. accidere (ak-sid-;Jr-ee), vb. [Latin] Civil law. 1. To fall down. 2. By extension, to befall or happen to. accipe ecclesiam (ak-si-pee e-klee-z[h]ee-;Jm). [Law Latin]lIist. Eccles. law. Receive this church or living. • The phrase was used by Patrons in presenting an incumbent to a vacant parish. Trado tibi ecclesiam ("I deliver this church [or living] to you") was also used. Cf. TRADO TIBI ECCLESIAM. accipere (ak-sip-;Jr-ee), vb. [Latin] Civil law. To receive; esp., to take under a wilL accipitare (ak-sip-;>-tair-ee), vb. [Law Latin] Hist. To pay (a lord) in order to become a vassal; esp., to pay relief upon succeeding to an estate. acclamation. Parliamentary law. 1. Approval or election by general consent, usu. demonstrated by applause or cheering.• Election by acclamation is common in large conventions where only one candidate has been nomi­ nated. 2. Voting by applause or shouting. accola (ak-;>-[;», n. [Latin "person living nearby"] 1. Roman law. A person who inhabits or occupies land near a certain place, such as one who dwells near a river. 2. Hist. An agricultural tenant; a tenant of a manor. accomenda (ak-;>-men-d;». Hist. Maritime law. A contract between a cargo owner and a shipmas­ ter whereby the parties agree to sell the cargo and divide the profits (after dedUCting the owner's costs). • This contract actually consists of two agreements: a mandatum, by which the owner gives the shipmaster the power to dispose of the cargo, and a partnership contract, by which the parties divide any profits arising from the sale. See MANDATE (5). accommodated party. A party for whose benefit an accommodation party signs and incurs liability. Cf. ACCOMMODATION PARTY. [Cases: Bills and Notes (:::::: 48,122.]

accommodation, n. (17c) 1. A loan or other financial favor. 2. The act of signing an accommodation paper as surety for another. See ACCOMMODATION PAPER. 3. The act or an instance of making a change or provision for someone or something; an adaptation or adjustment. 4. A convenience supplied by someone; esp., lodging and food. public accommodation. (1859) A business that provides lodging, food, entertainment, or other services to the public; esp. (as defined by the Civil Rights Act of 1964), one that affects interstate commerce or is supported by state action. [Cases: Civil Rights 1043.] reasonable accommodation. An adaptation, adjust­ ment, or allowance made for a disabled person's needs

accommodation acceptance

or an employee's religious beliefs or practices without imposing an undue hardship on the party taking the action. - Under the Americans with Disabilities Act, an employer must make reasonable accommodations for an employee'S disability. Examples of reasonable accommodations that have been approved by the courts include providing additional unpaid leave, modifying the employee's work schedule, and reas­ signing the employee to a more appropriate, vacant position. See undue hardship under HARDSHIP. [Cases: Civil Rights (;::::; 1020, 1162, 1225.] accommodation acceptance. See ACCEPTANCE (4). accommodation bill. See ACCOMMODATION PAPER. accommodation director. See dummy director under DIRECTOR.

accommodation indorsement. See INDORSEMENT. accommodation indorser. See INDORSER. accommodation land. See LAND. accommodation line. Insurance. One or more policies that an insurer issues to retain the business ofa valued agent, broker, or customer, even though the risk would not be accepted under the insurer's usual standards. accommodation loan. See LOAK. accommodation maker. See MAKER. accommodation note. See NOTE (1). accommodation paper. (18c) A negotiable instrument that one party cosigns, without receiving any consid­ eration, as surety for another party who remains pri­ marily liable. - An accommodation paper is typically used when the cosigner is more creditworthy than the principal debtor. - Also termed accommodation bill; accommodation note. [Cases: Bills and Notes 96.] accommodation party. (1812) A person who, without recompense or other benefit, signs a negotiable instru­ ment for the purpose ofbeing a surety for another party (called the accommodated party) to the instrument. ­ The accommodation party can sign in any capacity (Le., as maker, drawer, acceptor, or indorser). An accommo­ dation party is liable to all parties except the accom­ modated party, who impliedly agrees to pay the note or draft and to indemnify the accommodation party for all losses incurred in having to pay it. See SURETY. Cf. ACCOMMODATED PARTY. [Cases: Bills and Notes 49,96, 122.] accommodation subpoena. See friendly subpoena under SUBPOENA.

accommodation surety. See voluntary surety under SURETY.

accommodatum (d-kom-d-day-tdm), n. See COMMODA­ TUM.

accompany, vb. To go along with (another); to attend. _ In automobile-accident cases, an unlicensed driver is not considered accompanied by a licensed driver unless the latter is close enough to supervise and help the former.

18

accomplice (;l-kom-plis). (1854) 1. A person who is in any way involved with another in the commission of a crime, whether as a principal in the first or second degree or as an accessory. - Although the definition includes an accessory before the fact, not all authorities treat this term as including an accessory after the fact. [Cases: Criminal Law (;::::;59.] "There is some authority for using the word 'accomplice' to include all principals and all accessories, but the preferred usage is to include all principals and accessories before the fact, but to exclude accessories after the fact. If this limitation is adopted, the word 'accomplice' will embrace all perpetrators, abettors and inciters." Rollin M. Perkins & Ronald N. Boyce, Criminal Law 727 (3d ed. 1982). "A person is an 'accomplice' of another in committing a crime if, with the intent to promote or facilitate the com· mission of the crime. he solicits, requests, or commands the other person to commit it, or aids the other person in planning or committing it." 1 Charles E. Torcia, Wharton'S Criminal Law § 38, at 220 (15th ed. 1993).

2. A person who knowingly, voluntarily, and intention­ ally unites with the principal offender in committing a crime and thereby becomes punishable for it. See ACCESSORY. Cf. PRINCIPAL (2). "By definition an accomplice must be a person who acts

with the purpose of promoting or facilitating the commis· sion of the substantive offense for which he is charged as an accomplice. State v. White, N.J. 1984,484 A.2d 691,98 N.J. 122." Model Penal Code § 2.06 annot. (1997).

accomplice liability. See LIABILITY. accomplice witness. See WITNESS. accompt. See ACCOUNT (1). accord, n. (14c) 1. An amicable arrangement between parties, esp. between peoples or nations; COMPACT; TREATY. 2. An offer to give or to accept a stipulated per­ formance in the future to satisfy an obligor's existing duty, together with an acceptance of that offer. - The performance becomes what is known as a satisfac­ tion. - Also termed executory accord; accord execu­ tory. See ACCORD AND SATISFACTION; SATISFACTION. Cf. COMPROMISE; NOVATION. [Cases: Accord and Sat­ isfaction (;::::; 1.1 "An accord is a contract under which an obligee promises to accept a stated performance in satisfaction of the obligor's existing duty. Performance of the accord discharges the original duty," Restatement (Second) of Contracts § 281(1) (1979). "The term executory accord is sometimes used to under· score the point that the accord itself does not discharge the duty. It also reflects an historical anachronism, now generally rejected, under which an unperformed accord was not a defense to an action on the underlying duty." E. Allan Farnsworth, Contracts § 4.24, at 289 n.10 (3d ed. 1999).

3. A signal used in a legal citation to introduce a case dearly supporting a proposition for which another case is being quoted directly. accord, vb.!. To furnish or grant, esp. what is suitable or proper . 2. To agree . accord and satisfaction. (18c) An agreement to sub­ stitute for an existing debt some alternative form of

19

account

discharging that debt, coupled with the actual dis­ charge of the debt by the substituted performance. • The new agreement is called the accord, and the discharge is called the satisfaction. Cf. COMPROMISE; NOVATION; SETTLEMENT (2), (3). [Cases: Accord and Satisfaction ~ 1.] "'Accord and satisfaction' means an agreement between the parties that something shall be given to, or done for, the person who has the right of action, in satisfaction of the cause of action. There must be not only agreement ('accord') but also consideration ('satisfaction'). Such an arrangement is really one of substituted performance." 1 EW. Chance, Principles of Mercantile Law 101 (PW. French ed., 13th ed. 1950).

accordant (;}-kor-d;mt), adj. In agreement . accord executory. See ACCORD (2). accouchement (;}-koosh-m;}nt or ak-oosh-mawn). [French] Childbirth. account, n. (14c) 1. ACCOUNTING (3) . - Also spelled (archaically) accompt. [Cases: Account ~ 1-7] "The action of account lies where one has received goods or money for another in a fiduciary capacity, to ascertain and recover the balance due. It can only be maintained where there is such a relationship between the parties, as to raise an obligation to account, and where the amount due is uncertain and unliquidated." Benjamin J. Shipman, Handbook of Common-Law Pleading § 56, at 144 (Henry Winthrop Ballantine ed., 3d ed. 1923).

2. ACCOUNTING (4) . 3. A state­ ment by which someone seeks to describe or explain an event . 4. A detailed statement of the debits and credits between parties to a contract or to a fidUciary relationship; a reckoning of monetary dealings .• In wills and estates, an account is a brief financial statement of the manner in which an executor or administrator has performed the official duties of collecting the estate's assets and paying those who are entitled. An account charges the executor or administrator with the value of the estate as shown by the inventory, plus any increase, and credits the executor with expenses and costs, duly authorized dis­ bursements, and the executor's commission. - Abbr. acct.; ale. - Also termed accounting. See STATEMENT OF ACCOUNT. 5. A course of business dealings or other relations for which records must be kept . account in trust. An account established by an individ­ ual to hold the account's assets in trust for someone else. [Cases: Trusts ~34.] account payable. (usu. pl.) (1936) An account reflecting a balance owed to a creditor; a debt owed by an enter­ prise in the normal course of business dealing. ­ Often shortened to payable; payables. - Also termed note payable. PI. accounts payable.

account receivable. (usu. pl.) (1936) An account reflect­ ing a balance owed by a debtor; a debt owed by a customer to an enterprise for goods or services. ­ Often shortened to receivable; receivables. - Also termed note receivable. PI. accounts receivable. account rendered. An account produced by the creditor and presented for the debtor's examination and accep­ tance. account settled. An account with a paid balance. account stated. (17c) 1. A balance that parties to a transaction or settlement agree on, either expressly or by implication .• The phrase also refers to the agree­ ment itself or to the assent giving rise to the agree­ ment. [Cases: Account Stated ~ 1.] "An account stated is a manifestation of assent by debtor and creditor to a stated sum as an accurate computation of an amount due the creditor." Restatement (Second) of Contracts § 282(1) (1979). "If a creditor and a debtor wish to compromise or liqui· date a disputed or unliquidated debt, they may do so by either a substituted contract or an accord. If, however, their agreement is in the nature of a computation, it is called an account stated. An account stated, then, is a manifestation of assent by both parties to the stated sum as an accurate computation of the debt." E. Allan Farnsworth, Contracts § 4.24, at 286 (1982).

2. A plaintiff's claim in a suit for such a balance. 3. Equity practice. A defendant's plea in response to an action for an accounting .• The defendant states that the balance due on the statement of the account has been discharged and that the defendant holds the plaintiff's release. - Also termed stated account. accumulated-adjustments account. Tax. An item on the books of an S corporation (usu. an equity item on the corporation's balance sheet) to account for taxable-income items passed through to sharehold­ ers, such as accumulated earnings - earned before the corporation converted from a C corporation to an S corporation - that would have been distributed as a dividend to the shareholders if the corporation had remained a C corporation .• One of the theories underlying the accumulated-adjustments account is that the shareholders should not be permitted to avoid dividend-tax treatment on a corporation's accumu­ lated earnings just because the corporation converts from C status to S status. IRC (26 USCA) § 1368(e) (1). - Abbr. AAA. [Cases: Internal Revenue 3896.] adjunct account. An account that accumulates addi­ tions to another account. annual account. See intermediate account. assigned account. An account receivable that is pledged to a bank or factor as security for a loan. [Cases: Factors ~5; Pledges ~5; Secured Transactions ~181.]

bank account. A deposit or credit account with a bank, such as a demand, time, savings, or passbook account. UCC § 4-104(a). [Cases: Banks and Banking ~151.]

blocked account. An account at a bank or other finan­ cial institution, access to which has been restricted either by the government or by an authorized person. • An account may be blocked for a variety of reasons, as when hostilities erupt between two countries and each blocks access to the other's accounts. - Also termed frozen account. [Cases: Banks and Banking (;= 128, 133, 151; War and National Emergency (;= 12.] book account. A detailed statement of debits and credits giving a history of an enterprise's business transac­ tions. [Cases: Account, Action On capital account. An account on a partnership's balance sheet representing a partner's share of the partnership capital. [Cases: Partnership (;=72,305.] charge account. See CHARGE ACCOUNT. client trust account. See CLIENT TRUST ACCOUNT. closed account. An account that no further credits or debits may be added to but that remains open for adjustment or setoff. community account. An account consisting of com­ munity funds or commingled funds. See COMMUNITY PROPERTY.

contra account (kon-tr;t). An account that serves to reduce the gross valuation of an asset. convenience account. An apparent joint account, but without right of survivorship, established by a creator to enable another person to withdraw funds at the cre­ ator's direction or for the creator's benefit. • Unlike a true joint account, only one person, the creator, has an ownership interest in the depOSited funds. Con­ venience accounts are often established by those who need a financial manager's help and want to make it easy for the manager to pay bills. Although the man­ ager's name is on the account, he or she does not con­ tribute any personal funds to the account and can write checks or make withdrawals only at the direc­ tion of or on behalf of the creator. [Cases: Banks and Banking Joint Tenancy (;=6.] current account. 1. A running or open account that is settled periodically, usu. monthly. [Cases: Account, 2. A partner's account that reflects Action On salary, withdrawals, contributions, and other trans­ actions in a given period. 3. Banking. A depositor's checking account. 4. The portion ofa nation's balance of payments that represents its exports, imports, and transfer payments. custodial account. An account opened on behalf of someone else, such as one opened by a parent for a minor child, and usu. administered by a responsible third party. _ Custodial accounts most often arise under the Uniform Transfers to Minors Act (1983). All states have enacted either that act or its earlier version, the Uniform Gifts to Minors Act. Property can be set aside by a donor or transferred to a third party as custodian for the benefit of a minor, usu. as an irrevocable gift. This is a much simpler mechanism

than a trust. The custodian has powers and fiduciary duties similar to those of a trustee, except that the custodian is not under a court's supervision. The cus­ todian must account for the property and turn it over to the beneficiary when he or she reaches majority. See UNIFORM TRANSFERS TO MINORS ACT. [Cases: Infants

deposit account. A demand, time, savings, passbook, or similar account maintained with a bank, savings­ and-loan association, credit union, or like organiza­ tion, other than investment property or an account evidenced by an instrument. UCC § 9-102(a)(20). Abbr. D.A. [Cases: Banks and Banking (;= 151; Building and Loan Associations (;=40.] drawing account. A temporary owner's equity account used by a sole proprietorship or a partnership to record an owner's or partner's withdrawals of cash or other assets from the business for personal use. escrow account. 1. A bank account, generally held in the name ofthe depositor and an escrow agent, that is returnable to the depositor or paid to a third person on the fulfillment ofspecified conditions. Also termed escrow deposit. See ESCROW (2). [Cases: Deposits and Escrows (;= 11-26.] 2. See impound account. frozen account. See blocked account. impound account. An account of accumulated funds held by a lender for payment of taxes, insurance, or other periodic debts against real property. - Also termed escrow; escrow account; reserve account. See ESCROW (2).

intermediate account. An account filed by an executor, administrator, or guardian after the initial account and before the final account. • This account is usu. filed annually. - Also termed annual account. joint account. (l7c) A bank or brokerage account opened by two or more people, by which each party has a present right to withdraw all funds in the account and, upon the death of one party, the survi­ vors become the owners of the account, with no right of the deceased party's heirs or devisees to share in it. • Typically, the account-holders are deSignated as "joint tenants with right of survivorship" or "joint­ and-survivor account-holders." In some jurisdictions, they must be so deSignated to establish a right ofsur­ vivorship. Abbr. JA. - Also termed joint-and-sur­ 1,6.J vivorship account. [Cases: Joint Tenancy lien account. A statement ofclaims that fairly informs the owner and public of the amount and nature of a lien. [Cases: Liens (;=9; Mechanics' Liens (;= 116.] liquidated account. An account whose assets are clearly ascertained, either by agreement of the parties or by law. long account. An account involving numerous items or complex transactions in an equitable action, usu. referred to a master or commissioner. margin account. A brokerage account that allows an investor to buy or sell securities on credit, with the

accountable

21

securities usu. serving as collateral for the broker's loan. multiple-party account. An account that has more than one owner with a current or future interest in the account. _ Multiple-party accounts include joint accounts, payable-on-death (P.O.D.) accounts, and trust accounts. Unif. Probate Code § 6-201(5). mutual account. An account showing mutual trans­ actions between parties, as by showing debits and credits on both sides of the account. "[Elach party to a mutual account occupies both a debtor and creditor relation with regard to the other party. A mutual account arises where there are mutual dealings, and the account is allowed to run with a view to an ultimate adjustment of the balance. In order to establish a mutual account, it is not enough that the parties to the account have cross demands or cross open accounts: there must be an actual mutual agreement, express or implied, that the claims are to be set off against each other." 1 Am. Jur. 2d Accounts and Accounting § 6, at 564 (1994).

mutual-fund wrap account. An investment account that allocates an investor's assets only among mutual funds rather than stocks or other investments. See wrap account. negotiable-order-of-withdrawal account. See NOW account. nominal account (nahm-~-n~l). An income-statement accoun t that is closed into surplus at the end of the year when the books are balanced. nominee account. Securities. A brokerage account in which the securities are owned by an investor but registered in the name of the brokerage firm. - The certificate and the records of the issuing company show the brokerage as the holder of record. But the brokerage records show the investor as the beneficial owner of the securities in the nominee account. Also termed street-name security. NOW account (now). An interest-bearing savings account on which the holder may write checks. Also termed negotiable-order-of-withdrawal account. [Cases: Banks and Banking G'=>305; Building and Loan Associations 0=>40.J offset account. One of two accounts that balance against each other and cancel each other out when the books are closed. open account. (ISc) 1. An unpaid or unsettled account. 2. An account that is left open for ongoing debit and credit entries by two parties and that has a fluctuat­ ing balance until either party finds it convenient to settle and close, at which time there is a Single liabil­ ity. [Cases: Account, Action On (,-, 1.1,3.] partial account. (I8c) A preliminary accounting of an executor's or administrator's dealings with an estate. [Cases: Executors and Administrators 0=>509(11).] pay-on-death account. A bank account whose owner instructs the bank to distribute the account's balance to a beneficiary upon the owner's death. ­ Unlike a jOint-and-survivorship account, a pay-on­ death account does not give the beneficiary access

to the funds while the owner is alive. Abbr. POD account. - Also termed pay-on-death bank account. [Cases: Banks and Banking 0=> 128, 151.] pledged account. A mortgagor's account pledged to a lender in return for a loan bearing interest at a below­ market rate. profit-and-loss account. A transfer account of all income and expense accounts, closed into the retained earnings of a corporation or the account of a partnership. [Cases: Corporations Partner­ ship 0=>305, 376.] real account. An account that records assets and liabili­ ties rather than receipts and payments. reserve account. See impound account. revolving charge account. See revolving credit under CREDIT

(4).

running account. (I8c) An open, unsettled account that exhibits the reciprocal demands between the parties. sequestered account. An account (such as a joint bank account) that a court has ordered to be separated, frozen, and impounded. share-draft account. An account that a member maintains at a credit union and that can be drawn on through the use of share drafts payable to third parties.• A share-draft account operates much like a checking account operates at a bank. Also termed share account. [Cases: Building and Loan Associa­ tions C:-'40.] suspense account. A temporary record used in book­ keeping to track receipts and disbursements of an uncertain nature until they are identified and posted in the appropriate ledgers and journals.• A suspense account does not appear in a final financial statement. It is a useful tool when, for example, a lump-sum receipt or expenditure must be broken down to match several transactions before posting. tax-deferred account. An interest-bearing account whose earnings are not taxable as income to the account holder before the earnings are withdrawn. - Tax-deferred accounts include most types ofIRAs, variable annuities, 401(k) plans, cash-value life insur­ ance, and most other types of tax-deferred savings instruments. trust account. See CLIENT TRUST ACCOUNT. wrap account. An investment account for which the investor, helped by a stockbroker, selects an account manager and pays a fee based on a percentage of the total assets to be managed. - Most wrap accounts contain a portfolio ofinvestments, including stocks, bonds, and cash. Investors generally proVide a risk profile but do not select the investments or give instructions to buy or selL - Also termed wrapJee account. See mutualJund wrap account. accountable, adj. (14c) Responsible; answerable . 4. To confirm as genuine before an authorized officer . [Cases: Acknowledgment p 1.]5. (Of a notary public or other officer) to certify as genuine . acknowledged father. See FATHER. acknowledgment. (16c) 1. A recognition of something as being factual. 2. An acceptance of responsibility. 3. The act of making it known that one has received some­ thing. 4. A formal declaration made in the presence of an authorized officer, such as a notary public, by someone who signs a document and confirms that the signature is authentic. - In most states, the officer certi­ fies that (1) he or she personally knows the document signer or has established the signer'S identity through appeared before the satisfactory evidence, (2) the officer on the date and in the place (usu. the county) indicated, and (3) the signer acknowledged signing the document freely. Cf. VERIFICATION (1). [Cases: Acknowledgment pl.] "An acknowledgment is a verification of the fact of execu­ tion, but is not a verification of the contents of the instru­ ment executed; in other words, an acknowledgment is the method of authenticating an instrument by showing it was the act of the person executing it, while a verification is a sworn statement as to the truth of the facts stated within an instrument." 1A c.J,S. Acknowledgments § 2 (1985).

5. The officer's certificate that is affixed to the document. Also termed (in sense 5) certificate of acknowledgment; (loosely) verification. See PROOF OF ACKNOWLEDGMENT. 6. A father's public recognition of a child as his own. Also termed acknowledgment ofpaternity. formal acknowledgment. 1. A father's recognition of a child as his own by a formal, written declaration that meets a state's requirements for execution, typi­ cally by signing in the presence of two witnesses .• In Louisiana law, this recognition may also be made by a mother. La. Civ. Code art. 203. [Cases: Children 2. A father's recognition of Out-of-Wedlock a child as his own in the child's registry of birth or at the child's baptism. - In this sense, a formal acknowl­ edgment typically occurs when a man signs the birth certificate or baptismal certificate as the father or announces at the baptismal service that he is the father. The fact that a man is named as the father on a certificate ofbirth or baptism is not a formal acknowl­ edgment unless the father signs the document. informal acknowledgment. A father's recognition ofa child as his own not by a written declaration but by receiving the child into his family or supporting the child and otherwise treating the child as his own off­ spring. [Cases: Children Out-of-Wedlock acknowledgment money. See LAUDEMIUM. acknowledgment ofdebt. Louisiana law. Recognition by a debtor of the existence of a debt.• An acknowledg­

acknowledgment of paternity

ment of debt interrupts the running of prescription. [Cases: Limitation of Actions C~ 140.] acknowledgment of paternity. See ACKNOWLEDGMENT (6). ACLU. abbr. (1936) AMERICAN CIVIL LIBERTIES UNION. a confectione (ay k;:m-fek-shee-oh-nee). [Law Latin] From the making. a corifectione praesentium (ay kan-fek-shee-oh-nee pri­ zen-shee-am). [Law Latin] From the making of the indentures. a consiliis (ay kan-sil-ee-is), n. [Law Latin "of counsel"] See APOCRISARIUS. a contrario sensu (ay k,m-trair-ee-oh sen-s[y]oo), adv. [Law Latin] On the other hand; in the opposite sense. ACP. abbr. ADMINISTRATIVE DOMAIN-NAME CHALLENGE PANEL. ACPA. abbr. 1. ANTICYBERSQUATTING CONSUMER PRO­ TECTION ACT. 2. ANTICOUNTERFEITING CONSUMER PROTECTION ACT. ACP challenge. Trademarks. An administrative proce­ dure to settle disputes over Internet domain names, conducted by an Administrative Domain-Name Chal­ lenge Panel (ACP) under the auspices of the World Intellectual Property Organization and in accordance with the WIPO (Revised) Substantive Guidelines .• The guidelines are viewable at http://www.gtld-mou. org/docs/racps.htm. [Cases: Telecommunications 1333.] acquaintance rape. See RAPE. acquest (904.J "The active supervision requirement stems from the rec­ ognition that where a private party is engaging in the anticompetitive activity, there is a real danger that he is acting to further his own interests, rather than the govern­ mental interests of the State. The requirement is designed to ensure that the state·action doctrine will shelter only the particular anticompetitive acts that, in the judgment of the State, actually further state regulatory policies. To accomplish this purpose, the active supervision require­ ment mandates that the State exercise ultimate control over the challenged anti competitive conduct." Patrick v. Burget, 486 U.S. 94, 100-OJ, 108 s.Ct. 1658, 1663 (1988).

active trust. See TRUST. active waste. See commissive waste under WASTE (1). activistlawyering. See CAUSE LAWYERI:>!G. activity.!. The collective acts of one person or of two or more people engaged in a common enterprise. commercial activity. An activity, such as operating a business, conducted to make a profit. 2. See MARKET VOLUME. activity incident to service. An act undertaken by a member ofthe armed forces as a part ofa military oper­ alion or as a result of the actor's status as a member of the military.• For example, if a member of the military takes advantage of that status by flying home on a military aircraft, the flight is activity incident to service, and a claim against the government for any injuries received may be barred under the Feres doctrine. See FERES DOCTRINE.

acto (ahk-toh), n. Spanish law. 1. ACT (1). 2. ACT (2). 3. An action or lawsuit. Act of AdjournaL Scots law. A regulation issued by the High Court ofJusticiary to regulate procedure both in that court and in the lower criminal courts. Act of Assembly. Scots law. A piece oflegislation passed by the General Assembly ofthe Church ofScotland for governing the affairs of that church and its members. act of attainder. See BILL OF ATTAINDER. act of bankruptcy. An event, such as a debtor's fraudu­ an involun­ lent conveyance of property, that tary bankruptcy proceeding against a debtor.• The 1978 Bankruptcy Reform Act abolished this require­ ment as a condition to an involuntary bankruptcy pro­ ceeding. [Cases: BankruptcyC=>22SL] act of commission. See ACT (2). act of Congress. (lSc) A law that is formally enacted in accordance with the legislative power granted to Congress by the U.S. Constitution.• To become a law, or an act of Congress, a bill or resolution must be passed by a majority ofthe members ofboth the House of Representatives and the Senate. Bills or resolutions

act of possession

39

may generally be introduced in either chamber, except that bills for generating revenue must be introduced in the House of Representatives. When a bill or reso­ lution is introduced in a chamber, it is usu. assigned to a committee. If it is passed by the committee, it is reported to the full chamber. If it passes in the full chamber, it is reported to the other chamber, which then usu. assigns it to a committee in that chamber. If it passes by majority votes of the committee and full body in that chamber, it is reported back to the originating chamber. If its terms have changed in the second chamber, it is submitted to a conference com­ mittee, consisting of members from both chambers, to work out a compromise. When the bill or resolution is passed, with the same terms, by both chambers, it is signed by the Speaker of the House and the Presi­ dent of the Senate (usu. the President Pro Tempore), and is presented to the President of the United States for signature. If the President signs it or fails to return it to Congress within ten days, the bill or resolution becomes law. But if the President vetoes the bill or reso­ lution, it must be passed by a two-thirds majority of the House ofRepresentatives and the Senate to become law. U.S. Con st. art. I, § 7; 3 The Guide to American Law 165-66 (West 1983). act of court. 1. See judicial act under ACT. 2. Scots law. A memorandum setting forth the proceedings in a lawsuit. 3. Scots law. A rule made by a sheriff regulat­ ing proceedings within the sheriffalty. act of God. (18c) An overwhelming, unpreventable event caused exclUSively by forces of nature, such as an earthquake, flood, or tornado. - The definition has been statutorily broadened to include all natural phenomena that are exceptional, inevitable. and irre­ sistible, the effects of which could not be prevented or avoided by the exercise of due care or foresight. 42 USCA § 9601(1). - Also termed act of nature; act of prOVidence; superiorforce; vis major; irresistible super­ human force; vis divina. Cf. FORCE MAJEURE; unavoid­ able accident under ACCIDENT. [Cases: Contracts C=> 303(3), 309(1).] "Act of God may be defined as an operation of natural

forces so unexpected that no human foresight or skill could reasonably be expected to anticipate it. It has been sug­ gested that it also has the wider meaning of 'any event which could not have been prevented by reasonable care on the part of anyone.' This nearly identifies it with inevitable accident, but. however desirable this may be for SCientific arrangement of the law, there is no sufficient authority to back this View." P.H. Winfield, A Textbook of the Law of Tort § 16, at 45-46 (5th ed. 1950).

"As a technical term, 'act of God' is untheological and infe­ licitous. It is an operation of 'natural forces' and this is apt to be confusing in that it might imply positive intervention of the deity. This (at any rate in common understanding) is apparent in exceptionally severe snowfalls, thunderstorms and gales. But a layman would hardly describe the gnawing of a rat as an act of God, and yet the lawyer may, in some circumstances, style it such. The fact is that in law the essence of an act of God is not so much a positive interven­ tion of the deity as a process of nature not due to the act of man, and it is this negative side which needs emphasis." P.H. Winfield, A Textbook of the Law of Tort § 16, at 47 (5th ed. 1950).

"[AlII natural agencies, as opposed to human activities, constitute acts of God, and not merely those which attain an extraordinary degree of violence or are of very unusual occurrence. The distinction is one of kind and not one of degree. The violence or rarity of the event is relevant only in considering whether it could or could not have been prevented by reasonable care; if it could not, then it is an act of God which will relieve from liability, howsoever trivial or common its cause may have been. If this be correct, then the unpredictable nature of the occurrence will go only to show that the act of God in question was one which the defendant was under no duty to foresee or provide against. It is only in such a case that the act of God will provide a defence." R.F.V. Heuston, Salmond on the Law of Torts 330 (17th ed. 1977).

act of grace. An act of clemency; esp., such an act per­ formed at the beginning of a monarch's reign or at some other Significant occasion. act of honor. Commercial law. A transaction, memori­ alized in an instrument prepared by a notary public, evidencing a third person's agreement to accept, for the credit of one or more of the parties, a bill that has been protested.• Ibe UCC eliminated this type of transac­ tion. act of hostility. An event that may be considered an adequate cause for war; CASUS BELLI. - Also termed hostile act. [Cases: War and National Emergency 2.] act of indemnity. 1. A statute that relieves specified persons, esp. government officials, from some penalty to which they might be subject as a result of haVing exceeded their powers or having otherwise acted ille­ gally. 2. A statute that compensates persons for damage incurred as a result of either some public measure or government service. [Cases: Officers and Public Employees act oflaw. 1. See act ofthe law under ACT. 2. See LEGAL ACT.

act oflegislation. 1. A formal change in the law that existed previously. 2. A statute. [Cases: Statutes 2.] act of nature. 1. See ACT OF GOD. 2. See VIS MAJOR. act of omission. See negative act under ACT. act of Parliament. A law made bv the British sover­ eign, with the advice and consent of the Lords and the Commons; a British statute. act of Parliament of Scotland. 1. A statute passed by the Parliament of Scotland between its creation in the 14th century and 1707. 2. ACT OF THE SCOTTISH PAR­ LIAMENT.

act of petition. Hist. A summary proceeding in which litigants provide brief statements supported by affi­ davit. _ This procedure was used in the English High Court of Admiralty. act ofpossession. (16c) 1. The exercise ofphysical control over a corporeal thing, movable or immovable, with the intent to own it. 2. Conduct indicating an intent to claim property as one's own; esp., conduct that supports a claim of adverse possession. [Cases: Adverse Posses­ sion

40

act of providence. 1. See ACT OF GOD. 2. See VIS MAJOR. act of sale. An official record of a sale of property; esp., a document drawn up by a notary, signed by the parties, and attested by witnesses. [Cases: Sales C=> 28.] act of sederunt (s;J-deer-;mt). Scots law. A regulation issued by the Court of Session to regulate procedure in that court or in the lower civil courts. Act of Settlement. Hist. An act of Parliament (12 & 13 Will. 3, ch. 2, 1701) that resolved the question of royal succession unsettled after the Glorious Revolution of 1688.• The question was resolved by limiting the Crown to Protestant members of the House of Hanover. The Act also provided that the sovereign must be a member of the Church of England, and it established that judges would hold office during good behavior rather than at the will of the sovereign. act-of-state doctrine. Int'llaw. The principle that no nation can judge the legality of a foreign country's sovereign acts within its own territory.• As origi­ nally formulated by the U.S. Supreme Court in 1897, the doctrine provides that "the courts of one country will not sit in judgment on the acts of the government of another done within its own territory." Underhill v. Hernandez, 168 U.S. 250, 252, 18 S.Ct. 83, 84 (1897). The Supreme Court later declared that though the act-of­ state doctrine is compelled by neither international law nor the Constitution, it has "institutional underpin­ nings." Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398,423,84 S.Ct. 923, 937 (1964). [Cases: International Law C=> 10.9.] Act of Supremacy. Hist. A statute that named the English sovereign as supreme head of the Church of England (26 Hen. 8, ch. 1).• The Act was passed in 1534 during Henry VIII's reign and confirmed in 1559 (1 Eliz., ch. 1) to counteract pro-Catholic legislation enacted during the reign of Mary Tudor. In addition to making the monarch both head of state and head of the church, the Act defined some of the monarch's powers as head of the church, such as the power to issue injunctions relating to ecclesiastical affairs. act of the law. See ACT. act ofthe party. See act in the law under ACT. act of the Scottish Parliament. A statute passed by the Parliament of Scotland created by the Scotland Act of 1998.• It is typically cited by year, the letters ASP, and a serial number. - Also termed act of Parliament of Scotland. Act of Uniformity. Hist. Any of several 16th- and 17th­ century acts mandating uniform religious practices in England and Ireland; specif., an act requiring the use of the Book of Common Prayer. Act of Union. Any of several acts of Parliament uniting various parts of Great Britain .• The term applies to (1) the Laws in Wales Act (1535), which united Wales with England and made that principality subject to English law, and (2) the Union with Ireland Act (1800), which abolished the Irish Parliament and incorporated

Ireland into the United Kingdom of Great Britain and Ireland. It is used loosely in reference to the Union with Scotland in 1707, which was made not by statute but by treaty, approved by separate acts of the parliaments of Scotland and England. The treaty dissolved each par­ liament and created the new state of Great Britain with one parliament, the Parliament of Great Britain. actor. 1. One who acts; a person whose conduct is in question. bad actor. An actor who is shown or perceived to have engaged in illegal, impermissible, or unconscionable conduct. • A presumption that a person is a bad actor may be created by an adverse-inference instruction. 2. Archaic. A male plaintiff. 3. Hist. An advocate or pleader; one who acted for another in legal matters. Cf. REUS (1). 4. Roman law. (ital.) A person who sues; a claimant. - Also termed (in sense 4) petitor. PI. (in sense 4) actores. actrix (ak-triks). Archaic. A female plaintiff. acts of assembly. See SESSION LAWS. actual, adj. (14c) Existing in fact; real . Cf. CONSTRUCTIVE. actual abandonment. See ABANDONMENT (10). actual agency. See AGENCY (1). actual allegiance. See ALLEGIANCE. actual assent. See ASSENT. actual authority. See AUTHORITY (1). actual bailment. See BAILMENT. actual bias. See BIAS. actual capital. See CAPITAL. actual cash value. See VALUE (2). actual cause. See but-for cause under CAUSE (1). actual change of possession. A real, rather than con­ structive, transfer of ownership.• A creditor of the transferor cannot reach property that has actually changed possession. actual consumer confusion. See CONSUMER CONFU­ SION.

actual controversy. 1. See CONTROVERSY (2). 2. See CON­ TROVERSY

(3).

actual damages. See DAMAGES. actual delivery. See DELIVERY. actual escape. See ESCAPE (2). actual eviction. See EVICTION. actual force. See FORCE. actual fraud. See FRAUD. actual-injury trigger. Insurance. The point at which an insured suffers damage or injury (such as the time of an automobile accident), so that there is an occurrence invoking coverage under an insurance policy. - Also termed injury-in-fact trigger. Cf. EXPOSURE THEORY; MANIFESTATION THEORY; TRIPLE TRIGGER. [Cases: Insurance C=2265.]

41

actual innocence. See INNOCENCE. actual knowledge. See KNOWLEDGE. actual loss. See LOSS. actually litigated. (1969) (Of a claim that might be barred by collateral estoppel) properly raised in an earlier lawsuit, submitted to the court for a determination, and determined. - A party is barred by the doctrine of collateral estoppel from relitigating an issue that was actually litigated - usu. including by summary judgment but not necessarily by default judgment - in an earlier suit involving the same parties, even if that suit involved different claims. Restatement (Second) ofJudgments § 27 cmt. d (1980). [Cases: Judgment 652, 653, 720.] actual malice. See MALICE. actual market value. See fair market value under VALUE (2).

actual notice. See NOTICE. actual physical control. (1880) Direct bodily power over something, esp. a vehicle. - Many jurisdictions require a showing of "actual physical control" of a vehicle by a person charged with driving while intoxicated. [Cases; Automobiles actual possession. See POSSESSION. actual reduction to practice. See REDUCTION TO PRACTICE.

actual-risk test. The doctrine that, for an injured employee to be entitled to workers'-compensation benefits, the employee must prove that the injury arose from, and occurred in the course and scope of, employ­ ment. [Cases: Workers' Compensation 608.] actual seisin. See seisin in deed under SEISIN. actual service. See personal service (1) under SERVICE (2).

actual taking. See physical taking under TAKING (2). actual total loss. See LOSS. actual user confusion. See CONSUMER CONFUSION. actual value. See fair market value under VALUE (2). actuarial equivalent. The amount of accrued pension benefits to be paid monthly or at some other interval so that the total amount of benefits will be paid over the expected remaining lifetime of the recipient. [Cases: Labor and Employment C~563.] actuarially sound retirement system. A retirement plan that contains sufficient funds to pay future obligations, as by receiving contributions from employees and the employer to be invested in accounts to pay future benefits. Cf. NONACTUARIALLY SOUND RETIREMENT SYSTEM. [Cases: Pensions 48.) actuarial method. A means of determining the amount of interest on a loan by using the loan's annual per­ centage rate to separately calculate the finance charge for each payment period, after crediting each payment, which is credited first to interest and then to principal. [Cases: Labor and Employment 500.]

actus reus actuarial present value. The amount of money necessary to purchase an annuity that would generate a particular monthly payment, or whatever periodic payment the plan provides, for the expected remaining life span of the recipient. actuarial surplus. An estimate of the amount by which a pension plan's assets exceed its expected current and future liabilities, including the amount expected to be needed to fund future benefit payments. [Cases: Labor and Employment C~513.1 actuarial table. An organized chart of statistical data indicating life expectancies for people in various cat­ egories (such as age, family history, and chemical exposure). - Actuarial tables are usu. admissible in evidence. - Also termed expectancy table; mortality table; mortuary table. Cf. LIfE TABLE. actuarius (ak-choo-air-ee-~s or ak-tyoo-), n. [Latin] Roman law. 1. A notary or clerk; a shorthand writer. 2. A keeper of public records. actuary (ak-choo-air-ee), n. A statistician who deter­ mines the present effects of future contingent events; esp., one who calculates insurance and pension rates actuarial on the basis of empirically based tables. (ak-choo-air-ee-ill), adj. actum (ak-tilm), n. [Latin] A done; an act or deed. actum et tractatum (ak-tilm et trak-tay-tilm). [Law Latin] Hist. (Of an instrument) done and transacted. actus (ak-t~s), n. [Latin] L An act or action; a thing done. 2. Hist. An act of Parliament; esp., one passed by both houses but not yet approved by the monarch. Cf. STATUTUM (1). 3. Roman law. A servitude for driving cattle or a carriage across another's land. - Also termed (in sense 3) jus actus. Cf. ITER (1). actus animi (ak-t~s an-~-mI). [Law Latin] Hist. An act of the mind; an intention. See ANIMUS. "Again, consent, which is essential to all contracts, is an actus animi, and is presumed in all cases where the contract is ex facie regular," John Trayner, Trayner's Latin Maxims 21-22 (4th ed. 1894).

actus legitim us (ak-t~s lil-jit-il-mds). [Law Latin] Hist. An act in the law; a juristic act; spedf., an act the perfor­ mance of which was accompanied by solemn rituals. actus proximus (ak-t~s prok-si-m~s). [Law Latin] Hist. An immediate act, as distingUished from a preparatory act, esp. in the commission of a crime. actus reus (ak-tds ree-dB also raY-ds). [Law Latin "guilty act"] (1902) The wrongful deed that comprises the phYSical components of a crime and that generally must be coupled with mens rea to establish criminal liability; a forbidden act 200-205.] admission against interest. (1828) A person's statement acknowledging a fact that is harmful to the person's position, esp. as a litigant. - An admission against interest must be made either by a litigant or by one in privity with or occupying the same legal position as the litigant; as an exception to the hearsay rule, it is admissible whether or not the person is available as a witness. Fed. R. Evid. 801(d)(2). A declaration

admission tax

against interest, by contrast, is made by a nonlitigant who is not in privity with a litigant; a declaration against interest is also admissible as an exception to the hearsay rule, but only when the declarant is unavailable as a witness. Fed. R. Evid. 804(b)(3). See declaration against interest under DECLARATION (6). [Cases: Evidence admission by employee or agent. An admission made by a party-opponent's agent during employment and concerning a matter either within the scope of the agency or authorized by the party-opponent. [Cases: Evidence .237-245.] Criminal Law admission by party-opponent. (1959) An opposing party's admission, which is not considered hearsay if it is offered against that party and is (I) the party's own statement, in either an individual or a represen­ tative capacity; (2) a statement of which the party has manifested an adoption or belief in its truth; (3) a statement by one authorized by the party to make such a statement; (4) a statement by the party's agent concerning a matter within the scope of the agency or employment and made during the existence of the relationship; or (5) a statement by a coconspira­ tor of the party during the course of and in further­ ance ofthe conspiracy. Fed. R. Evid. 80l(d)(2). [Cases: Criminal Law 220.] [Cases: Criminal Law extrajudicial admission. (1824) An admission made outside court proceedings. implied admission. (18c) An admission reasonably inferable from a party's action or statement, or a Also termed tacit party's failure to act or speak. admission. [Cases: Evidence ~265(12).] incidental admission. An admission made in some other connection or involved in the admission of some other fact. incriminating admission. An admission of facts tending to establish guilt. [Cases: Criminal Law (;=­ 405.] judicial admission. (18c) A formal waiver of proof that relieves an opposing party from having to prove the admitted fact and bars the party who made the admission from disputing it. Also termed solemn admission; admission in judicio; true admission. [Cases: Criminal Law (;::::>406(4); Evidence (;::::> 206, 265(7).] quasi-admission. (1813) An act or utterance, usu. extrajudicial, that creates an inconsistency with and

54

discredits, to a greater or lesser degree, a present claim or other evidence of the person creating the inconsis­ tency. [Cases: Evidence ~200.] solemn admission. See judicial admission.

tacit admission. See implied admission.

true admission. See judicial admission.

2. Acceptance of a lawyer by the established licensing authority, such as a state bar association, as a member of the practicing bar, usu. after the lawyer passes a bar examination and supplies adequate character refer­ ences .• The entry of a lawyer on the rolls of an integrated bar, usu. after the fulfill­ ment of two prerequisites: graduating from law school and passing a state bar examination. - Also termed admission to practice law. [Cases: Attorney and Client (;=-4-7.] admission on motion. Permanent admission of a lawyer who is in good standing in the bar of a different state without the need for a full bar examination. [Cases: Attorney and Client admission pro hac vice (proh hak VI-see or proh hak vee-chay). Temporary admission of an out-of-juris­ diction lawyer to practice betore a court in a speci­ fied case or set of cases. See PRO HAC VICE. [Cases: Attorney and Client (;=-10.] 3. Patents. A concession or representation by a patent applicant that an activity, knowledge, or a publication is prior art. • An admission requires the U.S. Patent and Trademark Office examiner to consider the relevant item as prior art, even if it does not technically qualify Also termed admission ofprior art. as prior art. [Cases: Patents admission tax. See TAX. admission to bail. An order to release an accused person from custody after payment of bail or receipt of an adequate surety for the person's appearance for trial. See BAIL (1). [Cases: Bail (;=- 39.] admission to practice law. See ADMISSION (2). admission to sufficient facts. See SUBMISSION TO A FINDING.

admittance. 1. The act of entering a building, locality, or the like. 2. Permission to enter. 3. Hist. The act of giving seisin of a copyhold estate.• Admittance cor­ responded with livery of seisin ofa freehold. Copyhold estates were abolished by the Law of Property Act of 1922. See COPYHOLD. admitted asset. See ASSET. admitted corporation. See CORPORATION. admittendo clerico (ad-mi-ten-doh kler-d-koh). See DE CLERICO ADMITTENDO.

admittendo in socium (ad-mi-ten-doh in soh-shee-dm). [Latin] Hist. A writ for associating certain persons, such as knights, to justices of assize on the circuit. admixture (ad-miks-chdr). l. The mixing of things. 2. A substance formed by mixing.

55

admonition (ad-ma-nish-;m), n. (14c) 1. Anv authori­ tative advice or caution from the court t~ the jury regarding their duty as jurors or the admissibility of evidence for consideration . [Cases: Criminal Law C::::> 730; Trial C::::> 133.4.]3. Eccles. law. An authoritatively issued warning or censure. - admonish (ad-mon-ish), vb. admoni­ tory (ad-mon-a-tor-ee), adj. admonitio trina (ad-ma-nish-ee-oh trI-na), n. [Law Latin "triple warning"] Rist. A threefold warning advising a defendant charged with a capital crime that refusal to answer questions about the offense would in itself be considered a capital crime punishable by death. See PEINE FORTE ET DURE. ad mordendum assuetus (ad mor-den-dam a-swee-tas), adj. [Law Latin] Hist. Accustomed to bite. - This phrase was a common charge in a declaration of damage done by a dog to a person or to another animal. admortization (ad-mor-ta-zay-shan). Hist. The reduc­ tion of property oflands or tenements to mortmain. adnepos (ad-nep-ohs), n. [Latin] Hist. A great-great grandson. adneptis (ad-nep-tis), n. [Latin] Hist. A great-great granddaughter. adnihilare (ad-nr-ha-Iair-ee), vb. [Law Latin] Hist. To annul; to make void. ad nocumentum (ad nok-yoo-men-tam), adv. [Law Latin] Hist. To the nuisance; to the hurt or injury. ad non executa (ad non ek-sa-kyoo-t 108.] affidavitfor the record. An affidavit made by a surveyor or engineer to supplement, correct, update, or other­ wise alter existing information in official real-estate records. affidavit of claim. An affidavit in which a plaintiff asserts that he or she has a meritorious cause of action. [Cases: Pleading affidavit ofcontinued use. See DECLARATION OF USE. affidavit ofdefense. See affidaVit ofmerits. affidavit of incontestability. See DECLARATION OF INCONTESTABILITY.

affidavit ofincrease. Hist. An affidavit that lists and seeks reimbursement from the opposing party for ­ the additional costs (above the filing fee and other basic fees charged by the court clerk) incurred by a party in taking a matter through trial. • Attorney fees, witness payments, and the like were included in this affidavit. See COSTS OF INCREASE. affidavit ofinquiry. (1925) An affidavit, required in certain states before substituted service ofprocess on an absent defendant, in which the plaintiff's attorney or a person with knowledge of the facts indicates that the defendant cannot be served within the state. [Cases: Process (;:::>74, 96(4).] affidavit ofmerit. See certificate ofmerit. affidavit ofmerits. An affidavit in which a defendant asserts that he or she has a meritorious defense. Also termed affidaVit of defense. [Cases: Judgment 160,391.] affidavit ofnonprosecution. An affidavit in which a crime victim requests that the perpetrator not be prosecuted.• In many cases, ifthe victim files an affi­ davit ofnonprosecution, the prosecutor will withdraw or not file criminal charges against the perpetrator on grounds that there is no victim. Sometimes, though, the prosecutor will go forward with the prosecution even if the victim files an affidavit ofnonprosecution. [Cases: Criminal Law (;:::>40.] affidaVit of notice. An affidavit stating that the declarant has given proper notice ofhearing to other parties to the action. affidavit ofservice. (ISc) An affidavit certifying the service ofa notice, summons, writ, or process. [Cases: Process (;:::> 137.] affidavit ofuse. See DECLARATION OF USE. affidavit ofverification. See VERIFICATION (1). affidavit under § 8. See DECLARATION OF USE. affidavit under § 15. See DECLARAnON OF INCONTEST­ ABILITY.

affirmance

67

counteraffidavit. An affidavit made to contradict and oppose another affidavit. [Cases: Affidavits IFP affidavit. See poverty affidavit. in forma pauperis affidavit. See poverty affidavit. pauper's affidavit. See poverty affidavit. poverty affidavit. (1887) An affidavit made by an indigent person seeking public assistance, appoint­ ment of counsel, waiver of court fees, or other free public services. 28 USCA § 1915. - Also termed pauper's affidavit; in forma pauperis affidavit; IFP affidavit. [Cases: Federal Civil Procedure ~2734.1 search-warrant affidavit. An affidavit, usu. by a police officer or other law-enforcement agent, that sets forth facts and circumstances supporting the existence of probable cause and asks the judge to issue a search warrant. [Cases: Searches and Seizures ~105.] self-proving affidavit. (1964) An affidavit attached to a will and Signed by the testator and witnesses certify­ ing that the statutory requirements of due execution of the will have been complied with. - lhe affidavit, which recites the facts of the will's proper execution, permits the will to be probated without the necessity ofhaving the witnesses appear and prove due execu­ tion by their testimony. [Cases: Wills sham affidavit. An affidavit that contradicts clear testimony given by the same witness, usu. used in an attempt to create an issue of fact in response to a motion for summary judgment. [Cases: Federal Civil Procedure ~2539; Judgment ~ 185.2(8).] supplemental affidavit. An affidavit made in addition to a previous one, usu. to supply additional facts. [Cases: Affidavits ~ 16.] affidavit for the record. See AFFIDAVIT. affilare (af-d-Iair-ee), vb. [Law Latin] To put on record; to file. affile (d-fIl), vb. Archaic. To file. affiliate (d-fiI-ee-it), n. (I930) 1. A corporation that is related to another corporation by shareholdings or other means of control; a subsidiary, parent, or sibling corporation. [Cases: Corporations ~ 1.5.] 2. Securi­ ties. One who controls, is controlled by, or is under common control with an issuer of a security. SEC Rule Wb-18(a)(1) (17 CFR § 240.Wb-18(a)(1». See CONTROL PERSON. Cf. ASSOCIATED PERSON. - affiliate (a-fil-ee­ ayt), vb. - affiliation (d-fil-ee-ay-sh;m), n. affiliate click frand. See FRAUD. affiliated director. See outside director under DIRECTOR.

affiliated group. A chain of corporations that can elect to file a consolidated tax return because at least 80% of each corporation is owned by others in the group. [Cases: Criminal Law ~40.1 affiliated purchaser. See PURCHASER (1). affiliation order. See filiation order under ORDER (2). affine (d-fIn). A relative by marriage.

affinitas (d-fin-a-tas). [Latin] Roman law. Relationship by marriage. affinitas affinitatis (a-fin-i-tas d-fin-i-tay-tis), n. [Law Latin "affinity of affinity"] Hist. Relationship by two marriages, e.g., with one's stepmother's stepchild; a con­ nection that arises from marriage but is neither consan­ guinity nor affinity. Cf. CONSANGUINITY; AFFINITY. affinity (d-fin-a-tee). (14c) 1. A close agreement. 2. The relation that one spouse has to the blood relatives of the other spouse; relationship by marriage. 3. Any familial relation resulting from a marriage. Cf. CONSANGUINITY. See relative by affinity under RELATIVE. Cf. AFFINITAS AFFINITATIS; CONSANGUINITY. [Cases: Marriage 10.] 'There is no affinity between the blood relatives of one spouse and the blood relatives of the other. A husband is related by affinity to his wife'S brother, but not to the wife of his wife'S brother. There is no affinity between the hus· band's brother and the wife's sister; this is called affinitas affinitatis." 2 Charles E. Torcia, Wharton's Criminal Law § 242, at 573 (l5th ed. 1994).

collateral affinity. The relationship of a spouse's rela­ tives to the other spouse's relatives. - An example is a wife's brother and her husband's sister. direct affinity.lhe relationship of a spouse to the other spouse's blood relatives .• An example is a wife and her husband's brother. quaSi-affinity. Civil law. The affinity existing between two persons, one of whom has been engaged to a relative of the other. secondary affinity. The relationship of a spouse to the other spouse's marital relatives. _ An example is a wife and her husband's sister-in-law. affinity fraud. See FRAUD. affirm, vb. (14c) 1. To confirm (a judgment) on appeal. • Sometimes, the verb is used without a direct object <We affirm>. The equivalent expression in British English is to deny the appeal. [Cases: Appeal and Error ~ 1124-1145; Criminal Law ~ ll82; Federal Courts 926.] 2. To solemnly declare rather than swear under oath. 3. To testify or declare by affirmation. affirmance, n. (16c) l. A ratification, reacceptance, or confirmation. [Cases: Contracts ~97, 134.] "A party who has the power of avoidance may lose it by action that manifests a willingness to go on with the contract. Such action is known as 'affirmance' and has the effect of ratifying the contract. See Restatement of Restitution § 68. The rule stated in this Section is a special application of that stated in § 85, under which a promise to perform a voidable duty is binding. On ratification, the affirming party is bound as from the outset and the other party continues to be bound." Restatement (Second) of Contracts § 380 emt. a (1979).

2. The formal confirmation by an appellate court of a lower court's judgment, order, or decree. [Cases: Appeal and Error ~ 1124-1145; Criminal Law 1182; Federal Courts ~926.] 3. The manifestation of a choice by someone with the power of avoidance to treat a voidable or unauthorized transaction as valid or authorized. 4. The manifestation of a choice, by one on

68

affirmance day general

whose behalf an unauthorized act has been performed. to treat the act as authorized. Restatement (Second) of Agency § 83 (1958). affirm, vb. affirmance day general. See DAY. affirmant. A person who testifies under affirmation and not under oath. [Cases: Witnesses C=-227.J affirmation, n. (lSc) A solemn pledge equivalent to an oath but without reference to a supreme being or to swearing; a solemn declaration made under penalty of perjury, but without an oath. Fed. R. Evid. 603; Fed. R. Civ. P. 43(b).• While an oath is "sworn to," an affir­ mation is merely "affirmed," but either type of pledge may subject the person making it to the penalties for perjury. Cf. OATH. [Cases: Oath C=-4; Witnesses 227.] affirm, vb. affirmatory, adj. affirmative, adj. (15c) 1. Supporting the existence of certain facts . 2. Involving or requiring effort . affirmative action. (1961) A set of actions designed to eliminate existing and continuing discrimination, to remedy lingering effects of past discrimination, and to create systems and procedures to prevent future dis­ crimination. See reverse discrimination under DISCRIM­ 1NATION. [Cases: Civil Rights C=-1033(3), 1236.] affirmative charge. See affirmative instruction under JURY INSTRUCTION. affirmative condition. See positive condition under CON­ DITION (2). affirmative converse instruction. See JURY INSTRUC­ TION. affirmative covenant. 1. See COVENANT (1). 2. See COVENANT (4). affirmative defense. See DEFENSE (1). affirmative duty. See DUTY (1). affirmative easement. See EASEMENT. affirmative injunction. See mandatory injunction under INJUNCTION. affirmative instruction. See JURY INSTRUCTION. affirmative misconduct. See MISCONDUCT. affirmative plea. See pure plea under PLEA (3). affirmative pregnant. (1807) A positive statement that ambiguously implies a negative; a statement that does not explicitly deny a charge, but instead answers an unasked question and thereby implies culpability, as when a person says "I returned your car yester­ day" to the charge "You stole my car!" Cf. NEGATIVE PREGNANT. affirmative proof. See PROOF. affirmative relief. See RELIEF. affirmative representation. See REPRESENTATION (1). affirmative servitude. See positive servitude under SER­ VITUDE (2). affirmative statute. See STATUTE. affirmative testimony. See TESTIMONY.

affirmative warranty. See WARRANTY (3). affirmative waste. See commissive waste under WASTE (1).

affix (;}-fiks), vb. (16c) 1. To attach, add to, or fasten on permanently. See FIXTURE. 2. Trademarks. To attach, physically or functionally, a trademark or service­ mark to the goods or services it represents .• A mark must be affixed to show that it is used in trade. Where phYSical attachment is impossible or impracticable, the mark may be used on a container or tag, or (esp. with service marks) displayed prominently in advertising. [Cases: Trademarks C=-1l42.] - affixation, n. (af-ik­ say-shan). affixus (;}-fik-s;}s). [Latin] Roman law. Affixed or fastened to. afforare (af-;}-rair-ee), vb. [Law Latin] To set a price or value on a thing. afforce (;}-fors), vb. To strengthen (a jury) by adding new members. afforcement (;}-fors-m;mt), n. [Law Latin] Hist. 1. A reinforcement or fortification; esp., the reinforcing of a court on a solemn or extraordinary occasion. 2. A fortress. - Also termed afforciament (a-for-sh;}-mant); afforciamentum (a-for-shee-;)-men-t;)m). afforcing the assize. Hist. A method of securing a jury verdict from a hung jury either by denying food and drink to the members until they reached a verdict or by bringing in new jurors until 12 would agree. afforest, vb. To convert (land) into a forest, esp. by sub­ jecting it to forest law. - afforestation, n. affranchir (a-frahn-sheer). See AFFRANCHISE. affranchise (;)-fran-chIz), vb. Archaic. To set free; to liberate from servitude or an obligation.• The equiv­ alent verb in Law French was affranchir. affray (a-fray). (14c) The fighting, by mutual consent, of two or more persons in some public place, to the terror of onlookers.• The fighting must be mutual. If one person unlawfully attacks another who resorts to self-defense, the first is guilty of assault and battery, but there is no affray. - Also termed fray. Cf. RIOT; unlawful assembly under ASSEMBLY; ROUT. [Cases: Criminal Law C=-45.15.] "An affray differs from a riot, a rout, or an unlawful assembly in that an affray is not premeditated and in order to constitute a riot, a rout, or an unlawful assembly at least three participants are essential, while ... an affray may be committed by only two. Moreover, an affray is more of a private nature than a riot." 2A c.j.S. Affrav § 3, at 519 (1972).

"The word 'affray' comes from the same source as the word 'afraid,' and the tendency to alarm the community is the very essence of this offense." Rollin M. Perkins & Ronald N. Boyce, Criminal Law 479 (3d ed. 1982).

casual affray. See CHANCE-MEDLEY. mutual affray. See MUTUAL COMBAT. affrectamentum (a-frek-ta-men-tam). See AFFREIGHT­ MENT.

69

affreightment (d-frayt-m;mt). The contracting of a ship to carry cargo. Also termed charter ofaffreightment; (in French law) affretement; (in Law Latin) affrecta­ mentum. See CONTRACT OF AFFREIGHTMENT. [Cases: Shipping (;:::>104.] affretement. See AFFREIGHTMENT. a fine force (ay fIn fors). [Law French] Of pure neces­ sity. AFIS. abbr. AMERICAN FORCES INFORMATION SERVICE. AFL-CIO. abbr. AMERICAN FEDERATION OF LABOR AND CONGRESS OF INDUSTRIAL ORGANIZATIONS.

AF ofM. abbr. AMERICAN FEDERATION OF MUSICIANS. a force (ay fors). [Law French] Of necessity. a force et armes (ay fors et ahr-mis). (Law French] With force and arms. Also spelled a force et armis. See VI ET ARMIS.

aforesaid (a-for-sed), adj. (l4c) Mentioned above; referred to previously. - Also termed aforementioned; above-mentioned; above-stated; said. aforethought (d-for-thawt), adj. (I6c) Thought of in advance; deliberate; premeditated <malice afore­ thought>. See MALICE AFORETHOUGHT. a fortiori (ay for-shee-or- I or ah for-shee-or-ee), adv. [Latin] (16c) By even greater force oflogic; even more so . Cf. A MULTO FORTIORI.

African Development Foundation. A nonprofit federal foundation that supports the self-help efforts of poor people in African countries by making grants and by making and guaranteeing loans to any African entity engaged in peaceful activities that enable African people to develop more fully. - ADF was created by the African Development Foundation Act and began operating in 1984. 22 USCA § 290h. - Abbr. ADF. after-acquired domicile. See DOMICILE. after-acquired-evidence doctrine. Employment law. The rule that, if an employer discharges an employee for an unlawful reason and later discovers misconduct sufficient to justify a lawful discharge, the employee cannot win reinstatement. _ The doctrine either shields the employer from liability or limits the available relief when, after an employee has been terminated, the employer learns for the first time that the employee engaged in wrongdOing that would have resulted in a discharge anyway. McKennon v. Nashville Banner Publ'g Co., 513 U.S. 352, US S.Ct. 879 (1995). [Cases: Labor and Employment (;:::>855.] after-acquired property. 1. Secured transactions. A debtor's property that is acquired after a security trans­ action and becomes additional security for payment of the debt. UCC § 9-204. - Also termed future­ acquired property. [Cases: Secured Transactions 13,116.] 2. Bankruptcy. Property that the bankruptcy estate acquires after commencement ofthe bankruptcy proceeding. 11 USCA § 541(a)(7). [Cases: Bankruptcy

against the weight of the evidence

(;:::>2558.] 3. Wills & estates. Property acqUired by a person after making a will. - The old rule was that a testamentary gift ofpersonal property spoke at the time of the testator's death, whereas a gift of lands spoke from the date of the will's execution (so that after­ acquired property was not disposed of), but this has been changed by legislation in most states. (Cases: Wills (;:::>8, 578.] after-acquired-property clause. A mortgage provision that makes any later-acquired real estate subject to the mortgage. [Cases: Mortgages (;:::> 131.] after-acquired title. See TITLE (2). after-acquired-title clause. Oil & gas. A provision in an oil-and-gas lease extending the lease's coverage to include any interest in the property that the lessor may obtain after the lease is signed. - A common formula­ tion is "This lease covers all the interest now owned by or hereafter vested in the lessor ...." [Cases: Mines and Minerals (;:::>73.1.] after-acquired-title doctrine. (1940) The principle that title to property automatically vests in a person who bought the property from a seller who acquired title only after purporting to sell the property to the buyer. [Cases: Vendor and Purchaser (;:::>8,66.] afterborn child. See CHILD. afterborn heir. See HEIR. aftercare. See juvenile parole under PAROLE. after cost. See COST (1). aftermarket. See secondary market under MARKET. after the fact. (16c) Subsequent to an event oflegal sig­ nificance . AFTRA. abbr. AMERICAN FEDERATION OF TELEVISION AND RADIO ARTISTS.

AG. abbr. (1889) ATTORNEY GENERAL. against the form of the statnte. (16c) Contrary to the statutory requirements. - This formal phrase, which traditionally concludes an indictment, indicates that the conduct alleged contravenes the cited statute and therefore constitutes a criminal offense. In modern contexts, the full conclusion often reads: "against the form of the statute in such case made and provided." The phrase is a translation of the Law Latin contra formam statuti. [Cases: Indictment and Information (;:::>32(4).] againstthe peace and dignity ofthe state. (18c) A con­ cluding phrase in an indictment, used to condemn the offending conduct generally (as opposed to the specific charge of wrongdoing contained in the body of the instrument). - This phrase derives from the Law Latin contra pacem domini regis Cagainst the peace of the lord the king"), a charging phrase formerly used in indict­ ments and in civil actions oftrespass. Cf. KING'S PEACE. [Cases: Indictment and Information (;:::>32(3).] against the weight ofthe evidence. (I8c) (Of a verdict or judgment) contrary to the credible evidence; not suf­

against the will

ficiently supported by the evidence in the record. See WEIGHT OF THE EVIDENCE.

against the will. (1Sc) Contrary to a person's wishes.• Indictments use this phrase to indicate that the defen­ dant's conduct was without the victim's consent agalma (~-gal-m~). [Greek] A figure or design on a seaL agard (~-gahrd). [Law French] An award. See NUL FAIT AGARD.

agarder (ah-gahr-day), vb. [Law French] To award, adjudge, or determine; to sentence or condemn. age, n. (Be) A period of time; esp., a period of individ­ ual existence or the duration of a person's life .• In American usage, age is stated in full years completed (so that someone 15 years ofage might actually be 15 years and several months old). State statutes define various types of ages, as shown in the subentries. age ofcapacity. (1847) The age, usu. defined by statute as 18 years, at which a person is legally capable of agreeing to a contract, maintaining a lawsuit, or the like.• A person may be authorized to make certain critical personal decisions at an earlier age than the general age of capacity, such as the decision whether to bear a child, to donate blood, to obtain treatment for sexually transmitted diseases, to marry, or to write a will. The age of capacity to write a will is typically not 18, but 14. Also termed age of majority; legal age; lawful age. See CAPACITY (2). [Cases: Infants C=> 1,2.] age ofconsent. (16c) The age, usu. defined by statute as 16 years, at which a person is legally capable of agreeing to marriage (without parental consent) or to sexual intercourse.• If a person over the age of consent has sexual intercourse with a person under the age ofconsent, the older person may be prosecuted for statutory rape regardless of whether the younger person consented to the act. See statutory rape under RAPE. [Cases: Infants Marriage C=> 19.] age of criminal responsibility. The age at which a child may be held responsible for a criminal act. • In American criminal law, some state statutes allow a child as young as 7 to be held responsible (as a juvenile) for some acts. See, e.g., N.D. Cent. Code § 12.1-04-01. The minimum age for imposing adult liability is as low as 10. See, e.g., Ind. Code Ann. § 31-30-3-4(3). But in some circumstances, at least one state allows an offender to be tried as an adult at any age. See, e.g., Mich. Compo Laws Ann. § 712A.2d. [Cases: Marriage 19; Rape age ojdiscretion. 1. The age at which a person is con­ sidered responsible for certain acts and competent to exercise certain powers. - For example, a person must be a legal adult to be eligible to serve a summons. 2. PUBERTY.

age ofmajority. (16c) 1. The age, usu. defined by statute as 18 years, at which a person attains full legal rights, esp. civil and political rights such as the right to vote. • The age of majority must be the same for men and

70

women. In almost all states today, the age ofmajority is 18, but the age at which a person may legally purchase and consume alcohol is 21. - Also termed lawful age; legal age. 2. See age ofcapacity. - Also termed (in both senses) full age. [Cases: Child Support Infants Parent and Child C=> 16.] age ofreason. (1884) The age at which a person becomes able to distinguish right from wrong and is thus legally capable of committing a crime or tort. _ The age of reason varies from jurisdiction to jurisdiction, but 7 years is traditionally the age below which a child is conclUSively presumed not to have committed a crime or tort, while 14 years is uSU. the age below which a rebuttable presumption applies. A child of 14 or older has traditionally been considered legally competent to commit a crime and therefore held accountable. With the creation of juvenile courts and their inves­ titure of delinquency jurisdiction over children from birth to age 18, these traditional distinctions have nearly vanished. They surface from time to time in murder cases when a juvenile court considers whether to certify or transfer a very young child for trial in criminal court or when a prosecutor seeks to bypass the juvenile court by filing criminal charges against a young child. [Cases: Infants C=>S9, 66.J drinking age. The age at which it is legal to purchase and consume alcoholic beverages in a given jurisdic­ tion. [Cases: Intoxicating Liquors C=> 159.] fighting age. The age at which a person becomes eligible to serve in (or liable to conscription into) a military unit. [Cases: Armed Services C=> 17,20.4(1).] full age. See age ofmajority. lawful age. 1. See age ofcapacity. 2. See age ofmajority (1). legal age. 1. See age ofcapacity. 2. See age of majority (1). age discrimination. See DISCRIMINATION. Age Discrimination in Employment Act. A federal law prohibiting job discrimination based on a person's age, esp. unfair and discriminatory employment decisions that negatively affect someone who is 40 years old or older. 29 USCA §§ 621-634.• Passed in 1967, the Act applies to businesses with more than 20 employees and to all governmental entities. - Abbr. ADEA. [Cases: Civil Rights C=> 1199.] agency. (17c) 1. A fiduciary relationship created by express or implied contract or by law, in which one party (the agent) may act on behalf of another party (the principal) and bind that other party by words or actions. See AUTHORITY (1). [Cases: Principal and Agent "The basic theory of the agency device is to enable a person, through the services of another, to broaden the scope of his activities and receive the product of another's efforts, paying such other for what he does but retaining for himself any net benefit resulting from the work per· formed." Harold Gill Reuschlein & William A. Gregory, The Law of Agency and Partnership § 1, at 3 (2d ed. 1990).

agency

71

actual agency. (1835) An agency in which the agent is

financing agency. A bank, finance company, or other

in fact employed by a principaL [Cases: Principal and Agent (;::>96, 99.] agency by estoppel. (1882) An agency created by opera­ tion oflaw and established by a principal's actions that would reasonably lead a third person to conclude that an agency exists. Also termed apparent agency; ostensible agency; agency by operation oflaw. [Cases: Principal and Agent (;::>25(3), 137.] agency by necessity. See agency ofnecessity.

agency by operation oflaw. See agency by estoppel.

agency coupled with an interest. (1844) An agency in

which the agent is granted not only the power to act on behalf of a principal but also a legal interest in the estate or property involved .• This type ofagency is irrevocable before the interest expires, unless the parties agree otherwise when creating the interest. The agency survives even if the principal becomes insane or dies. See power coupled with an interest under POWER (3). [Cases: Principal and Agent (;::> 34,43(2).] agency from necessity. See agency ofnecessity. agency in fact. An agency created voluntarily, as by a contract. • Agency in fact is distinguishable from an agency relationship created by law, such as agency by estoppel. [Cases: Principal and Agent (;::>8.] agency ofnecessity. An agency arising during an emer­ gency that necessitates the agent's acting without authorization from the principal; the relation between a person who in exigent circumstances acts in the interest of another without being authorized to do so.• It is a quasi-contractual relation formed by the operation oflegal rules and not by the agreement of the parties. Also termed agency from necessity; agency by necessity. See NEGOTIORUM GESTIO. [Cases: 99.] Principal and Agent . apparent agency. See agency by estoppel. exclusive agency. (1805) The right to represent a prin­ cipal - esp. either to sell the principal's products or to act as the seller's real-estate agent - within a particular market free from competition.• Strictly speaking, an exclusive agency merely excludes all other brokers, but not the owner, from selling the products or property. Also termed exclusive

entity that in the ordinary course of business (1) makes advances against goods or documents oftitle, or (2) by arrangement with either the seller or the buyer intervenes to make or collect payment due or claimed under a contract for sale, as by purchasing or paying the seller's draft, making advances against it, or taking it for collection, regardless of whether docu­ ments of title accompany the draft. VCC § 2-102(a) (20). general agency. (18c) A principal's delegation to an agent, without restriction, to take any action con­ nected with a particular trade, business, or employ­ ment. - Also termed universal agency. [Cases: Principal and Agent (;::>93.] implied agency. (18c) An actual agency arising from the conduct by the principal that implies an intention to create an agency relationship. Cf. express agency. [Cases: Principal and Agent C::::'J 14(1),99.] ostensible agency. See agency by estoppel. special agency. (1808) An agency in which the agent is authorized only to conduct a single transaction or a series of transactions not involving continuous service. [Cases: Principal and Agent (;::>94.] undisclosed agency. (1871) An agency relationship in which an agent deals with a third party who has no knowledge that the agent is acting on a principal's behalf.• The fact that the agency is undisclosed does not prohibit the third party from seeking redress from the principal or the agent. [Cases: Principal and Agent (;::>138-146.] universal agency. See general agency. 2. An agent's place of business. 3. A governmental body with the authority to implement and administer particular legislation. - Also termed (in sense 3) gov­

agency to sell; exclusive franchise; sole selling agency. Cf. EXCLUSIVE RIGHT OF SALE. "Contracts involving the element of exclusive agency gen· erally fall into three classes: (1) where the contract does not prevent the principal from making direct sales but deprives him of the right to appoint other agents; (2) where the agent is the only one with any right to sell; and (3) where the exclusive agency is accompanied with a stipulated right to commissions on all sales whether made through the agent or not." 3 Am.Jur. 2d Agency§ 268, at 768 (1986).

express agency. (18c) An actual agency arising from the principal's written or oral authorization ofa person to act as the principal's agent. Cf. implied agency. [Cases: Principal and Agent (;::> 14(1), 99.]

ernment agency; administrative agency; public agency; regulatory agency. [Cases: Administrative Law and Pro­ cedure (;::> 1Ol.]

federal agency. (1859) A department or other instru­ mentality of the executive branch of the federal gov­ ernment, including a government corporation and the Government Printing Office.• The Administra­ tive Procedure Act defines the term agency negatively as being any U.S. governmental authority that does not include Congress, the courts, the government of the District of Columbia, the government of any territory or possession, courts-martial, or military authority. 5 VSCA § 551. 1he caselaw on this defini­ tion focuses on authority: generally, an entity is an agency ifit has authority to take binding action. Other federal statutes define agency to include any executive department, government corporation, government­ controlled corporation, or other establishment in the executive branch, or federal regulatory board. [Cases: Administrative Law and Procedure (;::> 101; United States (;::>30.] independent agency. (1902) A federal agency, commis­ sion, or board that is not under the direction of the

agency adjudication

executive, such as the Federal Trade Commission or the National Labor Relations Board. - Also termed independent regulatory agency; independent regula­ tory commission. [Cases: United States C=>29.] local agency. A political subdivision of a state .• Local agencies include counties, cities, school districts, etc. quasi-governmental agency. (1904) A government­ sponsored enterprise or corporation (sometimes called a government-controlled corporation), such as the Federal National Mortgage Corporation. [Cases: United States C=>53.] state agency. An executive or regulatory body of a state. • State agencies include state offices, departments, divisions, bureaus, boards, and commissions. - Also termed state body. [Cases: States C=>45.] agency adjudication. See ADMINISTRATIVE PROCEED­ ING.

agency adoption. See ADOPTION. Agency for Healthcare Research and Quality. An agency in the U.S. Department of Health and Human Services responsible for conducting research into improving the quality of health care, reducing its cost, and broadening access to essential healthcare services. Agency for International Development. See UNITED STATES AGENCY FOR INTERNATIONAL DEVELOPMENT.

Agency for Toxic Substances and Disease Registry. An agency in the U.S. Department of Health and Human Services responsible for evaluating the impact on public health of the release of hazardous substances into the environment, for maintaining a registry of contami­ nated waste sites, and for conducting research on the effects of hazardous substances on human health. Abbr. ATSDR. [Cases: Environmental Law C=>436.] agency jurisdiction. See JURISDICTION. agency records. Under the Freedom ofInformation Act, documents that are created or obtained by a govern­ ment agency, and that are in the agency's control at the time the information request is made. 5 USCA § 552; United States Dep't ofJustice v. Tax Analysts, 492 U.S. 136, 109 S.Ct. 2841 (1989). [Cases: Records C=>54.] agency regulation. See REGULATION (3). agency security. See government security under SECURITY.

agency shop. See SHOP. agency-shop membership. See FINANCIAL-CORE MEM­ BERSHIP.

agenda. A list of things to be done, as items to be con­ sidered at a meeting, usu. arranged in order of consid­ eration. - Also termed calendar; calendar ofbusiness; order of business. Cf. PROGRAM (1). action agenda. See action calendar under CALENDAR (4).

consent agenda. See consent calendar under CALENDAR (4).

72

debate agenda. See debate calendar under CALENDAR (4).

final agenda. An agenda that a deliberative assembly has adopted, or that has been adopted for a delib­ erative assembly by an officer or board charged with setting such an agenda. proposed agenda. An agenda offered, usu. with the notice calling the meeting that the agenda covers, for a deliberative assembly's consideration. - Also termed tentative agenda. report agenda. See report calendar under CALENDAR (4).

special-order agenda. See special-order calendar under CALENDAR

(4).

tentative agenda. See proposed agenda. unanimous-consent agenda. See consent calendar under CALENDAR (4). agens (ay-jenz). [Latin] 1. One who acts or does an act; an agent. Cf. PATIENS. 2. A plaintiff. agent. (15c) 1. Something that produces an effect . See CAUSE (1); ELECTRONIC AGENT. 2. One who is authorized to act for or in place of another; a representative 59(4).] insurance agent. See INSURANCE AGENT. jural agent. See rURAL AGENT. land agent. See LAND MANAGER. listing agent. (1927) The real-estate broker'S representa­ tive who obtains a listing agreement with the owner. Cf. selling agent. [Cases: Brokers local agent. An agent appointed to act as another's (esp. a company's) representative and to transact business within a specified district. [Cases: Principal and Agent (::::>1, 50.] managing agent. (1812) A person with general power involVing the exercise of judgment and discretion, as opposed to an ordinary agent who acts under the

agent

direction and control of the principal. - Also termed business agent. [Cases: Principal and Agent C=>50.] mercantile agent. An agent employed to sell goods or merchandise on behalf of the principal. - Also termed commercial agent. nonservant agent. An agent who agrees to act on the principal's behalf but is not subject to the principal's control over how the task is performed.• A princi­ pal is not liable for the physical torts of a non servant agent. See INDEPENDENT CONTRACTOR. Cf. indepen­ dent agent; SERVANT. [Cases: Principal and Agent C=> 1.] ostensible agent. See apparent agent. patent agent. A specialized legal professional - not necessarily a licensed lawyer - who prepares and prosecutes patent applications before the Patent and Trademark Office. Patent agents must be licensed by the Patent and Trademark Office. - Also termed patent solicitor; registered patent agent. [Cases: Patents C=>97.] primary agent. An agent who is directly authorized by a principal. • A primary agent generally may hire a subagent to perform all or part of the agency. Cf. subagent. [Cases: Principal and Agent C=> 1.] private agent. An agent acting for an individual in that person's private affairs. [Cases: Principal and Agent C=>92(3).] process agent. (1886) A person authorized to accept service of process on behalf of another. [Cases: Cor­ porations C=>668(4); Federal Civil Procedure C=>500, 503; Process C=>58.] procuring agent. A person who obtains drugs on behalf of another person and delivers the drugs to that person.• In criminal-defense theory, the procuring agent does not sell, barter, exchange, or make a gift of the drugs to the other person because the drugs already belong to that person, who merely employs the agent to pick up and deliver them. [Cases: Con­ trolled Substances C=>47.] public agent. A person appointed to act for the public in matters pertaining to governmental administra­ tion or public business. [Cases: Officers and Public Employees C=> 1.] real-estate agent. An agent who represents a buyer or seller (or both, with proper disclosures) in the sale or lease of real property.• A real-estate agent can be either a broker (whose principal is a buyer or seller) or a salesperson (whose principal is a broker). Cf. REALTOR. [Cases: Brokers C=>6.] record agent. See INSURANCE AGENT. registered agent. (1809) A person authorized to accept service of process for another person, esp. a corpo­ ration, in a particular jurisdiction. - Also termed resident agent. [Cases: Corporations C=>507(5), 668(4); Federal Civil Procedure C=>444, 498, 499; Process C=>58.]

74

selling agent. (1839) The real-estate broker'S represen­ tative who sells the property, as opposed to the agent who lists the property for sale. Cf. LISTING AGENT. [Cases: Brokers C=> 18.] settlement agent. An agent who represents the pur­ chaser or buyer in the negotiation and closing of a real-property transaction by handling financial cal­ culations and transfers of documents. - Also termed closing agent. See also settlement attorney under ATTORNEY. [Deposits and Escrows C=> 13.] soliciting agent. 1. Insurance. An agent with limited authority relating to the solicitation or submission of applications to an insurance company but usu. without authority to bind the insurer, as by accept­ ing the applications on behalf of the company. [Cases: Insurance C=>1634(3).] 2. An agent who solicits orders for goods or services for a principal. 3. A managing agent of a corporation for purposes of service of process. [Cases: Corporations C=>668(5).] special agent. 1. An agent employed to conduct a par­ ticular transaction or to perform a specified act. [Cases: Principal and Agent C=>94.] 2. See INSUR­ ANCEAGENT.

specially accredited agent. An agent with whom a third person has been specially invited to deal by the prin­ cipal under circumstances leading the third person to believe that he or she will be notified if the authority is altered or revoked. statutory agent. (1844) An agent deSignated by law to receive litigation documents and other legal notices for a nonresident corporation .• In most states, the secretary of state is the statutory agent for such cor­ porations. [Cases: Corporations C=>507(5, 12),646, 668(14).] stock-transfer agent. An organization that oversees and maintains records of transfers of shares for a cor­ poration. [Cases: Corporations C=> 128.1.] subagent. A person to whom an agent has delegated the performance of an act for the principal; a person designated by an agent to perform some duty relating to the agency.• If the principal consents to a primary agent's employment of a subagent, the subagent owes fiduciary duties to the principal, and the principal is liable for the subagent's acts. Cf. primary agent. ­ Also termed subservant. [Cases: Principal and Agent C=>73.] "By delegation ... the agent is permitted to use agents of his own in performing the function he is employed to perform for his principal, delegating to them the discretion which normally he would be expected to exercise person­ ally. These agents are known as subagents to indicate that they are the agent's agents and not the agents of the prin­ cipal. Normally (though of course not necessarily) they are paid by the agent. The agent is liable to the principal for any injury done him by the misbehavior of the agent's sub­ agents." Floyd R. Mechem, Outlines of the Law of Agency § 79, at 51 (Philip Mechem ed., 4th ed. 1952).

successor agent. An agent who is appointed by a prin­ cipal to act in a primary agent's stead if the primary agent is unable or unwilling to perform.

75

superior agent. See high-managerial agent. transfer agent. An organization (such as a bank or trust company) that handles transfers of shares for a publicly held corporation by issuing new certificates and overseeing the cancellation of old ones and that usu. also maintains the record ofshareholders for the corporation and mails dividend checks .• Generally, a transfer agent ensures that certificates submitted for transfer are properly indorsed and that the right to transfer is appropriately documented. [Cases: Cor­ porations ~ 128.1.] undercover agent. (1930) 1. An agent who does not disclose his or her role as an agent. 2. A police officer who gathers evidence ofcriminal activity without dis­ closing his or her identity to the suspect. universal agent. (l8c) An agent authorized to perform all acts that the principal could personally perform. [Cases: Principal and Agent ~50.] vice-commercial agent. Hist. In the consular service of the United States, a consular officer who was sub­ stituted temporarily to fill the place of a commer­ cial agent who was absent or had been relieved from duty. 3. Patents. A person who is not an attorney but who has fulfilled the U.S. Patent and Trademark Office require­ ments as a lay representative and is registered to prepare and prosecute patent applications before the PTO .• To be registered to practice before the PTO, a candi­ date must establish mastery of the relevant technology (by holding a specified technical degree or equivalent training) in order to advise and assist patent applicants. The candidate must also pass a written examination (the "Patent Bar") that tests knowledge of patent law and PTO procedure. - Also termed patent agent. Cf. PATENT ATTORNEY. [Cases: Patents ~97.] agent not recognized. Patents. A patent applicant's appointed agent who is not registered to practice before the U.S. Patent and Trademark Office.• A power of attorney appointing an unregistered agent is void. associate agent. An agent who is registered to practice before the U.S. Patent and Trademark Office, has been appointed by a principal agent, and is authorized to prosecute a patent application through the filing of a power of attorney.• An associate agent is often used by outside counsel to assist in-house counsel. agent provocateur (ay-jant pra-vok-a-t,}r or a-zhawn praw-vaw-ka-tuur), n. (1877) 1. An undercover agent who instigates or participates in a crime, often by infil­ trating a group suspected of illegal conduct, to expose and punish criminal activity. 2. A person who entraps another, or entices another to break the law, and then informs against the other as a lawbreaker. agent's lien. See LIEN. agent's power. See POWER (3). age of capacity. See AGE. age of consent. See AGE.

aggravating factor

age of criminal responsibility. See AGE.

age of discretion. See AGE.

age of majority. See AGE.

age of reason. See AGE.

ager (ay-jar), n. [Latin] Roman law. Land or territory;

esp., a portion of land enclosed by definite boundar­ ies. ager arcifinius (ay-jar ahr-si-fin-ee-as). [Latin "land having irregular boundaries; unsurveyed land"] Roman law. Land enclosed only as a means of iden­ tification, not as a limit. PI. agri arcifinii. Cf. ager limitatus. ager limitatus (ay-jar lim-i-tay-tas). [Latin "field limited" or "land enclosed by boundaries"] Roman & civil law. Land with settled boundaries; esp., land whose boundaries have been fixed by a surveyor.• The term applied to land belonging to the state by right of conquest, then granted and sold in individual plots. Cf. ager arcifinius. Pl. agri limitaU (ag-n lim­ i-tay-tI). "The agri limitati of the Roman law were lands detached from the public domain, and converted into private property, by sale or grant, beyond the limits of which the owners could claim nothing." John Trayner, Trayner's Latin Maxims 36 (4th ed. 1894).

ager publicus (ay-jar pab-li-kas). Land of the people; public land. aggravated, adj. (17c) 1. (Of a crime) made worse or more serious by circumstances such as violence, the presence of a deadly weapon, or the intent to commit another crime . Cf. SIMPLE (1). 2. (Of a tort) made worse or more serious by circumstances such as intention to cause harm or reckless disregard for another's safety 7(2).] aggregation of claims. Patents. In a patent application, an excessive number of claims that do not differ sig­ nificantly in scope and are essentially duplicative .• Although a patent applicant may claim an invention and its various features in a reasonable number ofways, each claim must differ materially from the others. Also termed multiplicity ofclaims; undue multiplicity ofclaims. [Cases: Patents (;::;> 124.] aggregation rejection. See REJECTION. aggression. Int'llaw. A grave breach of international law by a nation.• The prohibition of aggression is a peremptory rule (jus cogens). Aggressors are guilty ofan international crime. But there is no generally accepted definition ofwhat constitutes aggression despite many attempts over the years to devise one. In 1974, the United Nations General Assembly adopted a Resolu­ tion on the Definition of Aggression (Resolution 3314 (XXIX) of December 14, 1974). It defines aggression, in part, as "the use of armed force by a State against the sovereignty, territorial integrity, or political inde­ pendence of another country, or in a manner inconsis­ tent with the Charter of the United Nations ...." The definition does not extend to measures that, in certain circumstances, might constitute aggression, nor does it recognize exceptional circumstances that would make the enumerated acts defensive rather than offen­ sive. The U.N. Security Council has never expressly relied on the resolution when determining whether a nation's acts constitute a "threat to the peace, breach of the peace, or act of aggression." See U.N. Charter art.

agnatus

77

39, 59 Stat. 1031. The difficulty of finding a generally accepted definition of aggression is reflected in Article 5 ofthe Statute ofthe International Criminal Court (37 LL.M. 999). It confers jurisdiction on the Court over "the crime of aggression" but also requires the parties to the Statute to define the crime before the Court can exercise jurisdiction. [Cases: War and National Emer­ gency (> 1, 19.] "Although classical aggression has generally been thought to involve direct military operations by regular national forces under government control, today subjugation and control of peoples may well result from resort to nonmili­ tary methods. Economic pressures on the other states; demands couched in traditional diplomatic terms but laden with implied threats to compel action or inaction; fifth column activities; the endless propaganda harangue urging another state's peoples to rise against their government; the aiding and abetting of rebel bands intent on overthrow­ ing another government; and a wide range of other modern techniques must be included in the concept of aggression in so far as they are delicts at international law, for they are directed against the sovereign independence of a state." Ann Van Wynen Thomas & A.J. Thomas Jr., The Concept of Aggression in International Law69 (1972).

direct aggression. Aggression in which a state's regular armed forces participate. indirect aggression. Aggression carried out by some means other than through a state's regular armed forces. "[I]ndirect aggression would seem to have two prime meanings: (1) delictual acts armed or unarmed and con­ ducted vicariously by the aggressor state through third parties which endanger the essential rights of a state, rights upon which its security depends, and (2) delictual acts taken directly by the governing authorities of a state against another state or vicariously through third-party groups which do not involve the use of armed force, but which do endanger the essential rights of a state upon which its security depends. No directly military opera­ tions by the regular armed forces of a state are involved in either case; therefore the aggression can be regarded as an indirect method of constraint carried on by the aggres­ sor state." Ann Van Wynen Thomas & AJ. Thomas Jr., The Concept of Aggression in International Law 69 (1972).

aggressor corporation. See CORPORATION. aggressor doctrine. (1947) The principle precluding tort recovery for a plaintiff who acts in a way that would provoke a reasonable person to use physical force for protection, unless the defendant in turn uses excessive force to repel the plaintiff. [Cases: Assault and Battery (>13.] aggrieved, adj. (Of a person or entity) haVing legal rights that are adversely affected; having been harmed by an infringement oflegal rights. aggrieved party. See PARTY (2). AGI. abbr. See adjusted gross income under INCOME. agillarius (aj-30.]

integrated agreement. See INTEGRATED CONTRACT. invalid agreement. See invalid contract under CONTRACT.

living-together agreement. See COHABITATION AGREE­ MENT.

marital agreement. See MARITAL AGREEMENT. marital settlement agreement. See DIVORCE AGREE­ MENT.

negotiated agreement. See NEGOTIATED AGREEMENT. noncircumvention agreement. See NONCIRCUMVEN­ TION AGREEMENT.

outsourcing agreement. See OUTSOURCING AGREE­ MENT.

point-and-click agreement. See POINT-AND-CLICK AGREEMENT.

postnuptial agreement. See POSTNUPTIAL AGREE­ MENT.

prenuptial agreement. See PRENUPTIAL AGREEMENT. property settlement agreement. See PROPERTY SETTLE­ MENT (2).

reconciliation agreement. See RECONCILIATION AGREE­ MENT.

redemption agreement. See STOCK-REDEMPTION AGREEMENT.

separation agreement. See SEPARATION AGREEMENT. side agreement. 1. An agreement that is ancillary to another agreement. 2. Int'llaw. An international accord that is specifically negotiated to supplement a broader trade treaty.• For example, NAFTA contains no provisions about labor standards or environmental protection. But two side agreements about those areas were negotiated separately and deSigned to supple­ ment NAFTA, making the treaty more attractive to the ratifying bodies. - Also termed supplemental

agreement. simple agreement. (ISc) An agreement for which the law requires nothing for its effective operation beyond some manifestation that the parties have consented.

stock-retirement agreement. See STOCK-REDEMPTION AGREEMENT.

subordination agreement. An agreement by which one who holds an otherwise senior interest agrees to sub­ ordinate that interest to a normally lesser interest, usu. when a seller agrees to subordinate a purchase-money mortgage so that the buyer can obtain a first-mort­ gage loan to improve the property. [Cases: Secured Transactions C=:> 147.]

supplemental agreement. See side agreement. surrogate-parenting agreement. See SURROGATE-PAR­ ENTING AGREEMENT.

takeover agreement. An agreement under which a defaulting party's surety agrees to perform the original contract in the defaulting party's stead. [Cases: Principal and Surety C=:>SO.]

third-party business-buyout agreement. An agreement by a business's owners to sell all or part of the business to an outside person who will continue to operate it. Cf. business-continuation agreement; cross-purchase

agreement. trust agreement. See declaration oftrust (2) under DEC­ LARATION (1).

unconscionable agreement (.m-kon-sh::l-n::l-b::ll). (lS17) An agreement that no promisor with any sense, and not under a delusion, would make, and that no honest and fair promisee would accept.• For commercial contexts, see VCC § 2-302. - Also termed uncon­ scionable contract; unconscionable bargain. [Cases: Contracts C=:> 1.]

underwriting agreement. An agreement between a corporation and an underwriter covering the terms and conditions of a new securities issue. [Cases: Cor­ porations C=:>79.] valid agreement. See valid contract under CONTRACT.

agreement of imperfect obligation

voidable agreement. See voidable contract under CONTRACT. void agreement. See void contract under CONTRACT. agreement of imperfect obligation. See unenforceable contract under CONTRACT. agreement of rescission. See RESCISSION (2). agreement of sale. See AGREEMENT. Agreement on Trade-Related Aspects of Intellectual Property Rights. See TRIPS. Agreement Relating to Liability Limitation of the Warsaw Convention and The Hague Protocol. See MONTREAL AGREEMENT. agreement to agree. See AGREEMENT. agreement to marry. See marriage promise under PROMISE. agreement to sell. See AGREEMENT. agri (ag-n), n. pl. [Latin] Lands. agribusiness. The pursuit of agriculture as an occupation or profit-making enterprise, including labor, land-use planning, and financing the cost of land, equipment, and other necessary expenses .• This term generally excludes smaller family-owned and -operated farms. Agricultural Adjustment Act. A 1933 federal statute that paid farmers not to produce crops in an effort to raise crop prices .• The U.S. Supreme Court declared the Act unconstitutional in 1936 on grounds that Congress had overstepped its power to regulate commerce. A second, more limited Agricultural Adjustment Act was enacted in 1938. Abbr. AAA. [Cases: AgricultureC=3.1.] Agricultural Cooperative Service. The federal agency within the U.S. Department of Agriculture responsi­ ble for helping farmers to organize farm cooperatives. • The Service also collects statistical information on co-ops and publishes Farmer Cooperatives, a monthly magazine. agricultural-disparagement law. A statute deSigned to protect food producers from and provide remedies for pecuniary harm resulting from false and malicious reports of food contamination.• A typical statute applies to false and disparaging public statements implying or claiming that a perishable food product is unsafe for human consumption. It typically applies when the speaker or writer knows that the statements are false because the claim or implication has no basis in reliable scientific inquiry, facts, or data. - Also termed veggie-libellaw; perishable-food-disparagement act; agricultural-product-disparagement law;food-dis­ paragement law. agricultural fixture. See FIXTURE. agricultural labor. Work that is performed on a farm or ranch, or that pertains to the production of com­ modities, such as harvesting crops, raising livestock, or obtaining milk, honey, or other animal products .• Agricultural labor is often excluded from certain labor laws, such as unemployment insurance and workers' compensation.

80 agricultural lien. See LIEN. Agricultural Marketing Service. An agency in the U.S. Department of Agriculture responsible for compil­ ing and publishing marketing information, establish­ ing and enforcing quality standards for agricultural products, testing those products, and making grants to states and farmers.• It was established by the Secretary of Agriculture in 1972. Abbr. AMS. agricultural-product-disparagement law. See AGRICUL­ TURAL-DISPARAGEMENT LAW. Agricultural Research Service. An agency in the U.S. Department of Agriculture responsible for conducting agricultural research to ensure the production of high­ quality food and food products. Abbr. ARS. agriculture. The science or art of cultivating soil, har­ vesting crops, and raising livestock. [Cases: Agriculture C=3.1.] "'Agriculture' is broader in meaning than 'farming'; and while it includes the preparation of soil, the planting of seeds, the raising and harvesting of crops, and all their incidents, it also includes gardening, horticulture, viticul­ ture, dairying, poultry, bee raising, and ranching." 3 Am. Jur. 2d Agriculture § 1, at 934-35 (1986).

agri limitati (ag-rI lim-i-tay-tI). See ager limitatus under AGER. Aguilar-Spinelli test (ah-gee-Iahr spi-nel-ee or ag-wa­ lahr). Criminal procedure. A standard for determining whether hearsay (such as an informant's tip) is suffi­ ciently reliable to establish probable cause for an arrest or search warrant. • Under this two-pronged test ­ which has been replaced by a broader, totality-of-the­ circumstances approach the reliability of both the information and the informant must be assessed inde­ pendently. Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509 (1964); Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584 (1969). Cf. TOTALITY-OF-THE-CIRCUMSTANCES TEST. [Cases: Criminal Law C=211(3); Searches and Seizures C= 118.1 agunah (ah-goo-nah), n.lewish law. 1. A woman whose husband has deserted her or otherwise disappeared.• She may not remarry until either proving his death or obtaining a divorce. 2. A woman whose husband will not agree to a divorce. AGVA. abbr. AMERICAN GUILD OF VARIETY ARTISTS. ahupuaa (ah-hoo-poo-ah-ah). [Hawaiian] A variable measure of Hawaiian land, traditionally understood to stretch from the sea to the mountains, to allow the people to obtain the various materials needed for sub­ sistence offered at different elevations. - Also spelled ahupua>a. AICPA. abbr. American Institute of Certified Public Accountants. [Cases: Accountants AID. abbr. 1. See artificial insemination by donor under ARTIFICIAL INSEMINATION. 2. UNITED STATES AGENCY FOR INTERNATIONAL DEVELOPMENT. aid, n. 1. A contribution toward defense costs from a third party who has a joint interest in the defense but has not been sued. 2. Hist. A subSidy or tax granted

81

AIH

to the king for an extraordinary purpose. 3. Hist. A benevolence or tribute (Le., a sum of money) granted by the tenant to his lord in times of difficulty and distress. • Over time, these grants evolved from being discre­ tionary to mandatory. The three principal aids were: (1) to ransom the lord's person ifhe was taken prisoner; (2) to contribute toward the ceremony ofknighting the lord's eldest son; and (3) to provide a suitable dowry for the lord's eldest daughter. aid and abet, vb. (17c) To assist or facilitate the commis­ sion of a crime, or to promote its accomplishment. ­ Aiding and abetting is a crime in most jurisdictions. ­ Also termed aid or abet; counsel and procure. [Cases: aider and abettor, n. Criminal Law "The phrase 'aid and abet' and 'aider and abettor' seem unnecessarily verbose .... [AJny aid given with mens rea is abetment; hence to add the word 'aid' to the word 'abet' is not necessary and is sometimes misleading." Rollin M. Perkins & Ronald N. Boyce, Criminal Law 724-25 (3d ed. 1982). "In connection with the principal in the second degree or accessory before the fact, the terms 'aid' and 'abet' are frequently used interchangeably, although they are not synonymous. To 'aid' is to assist or help another. To 'abet' means, literally, to bait or excite, as in the case of an animal. In its legal sense, it means to encourage, advise, or instigate the commission of a crime." 1 Charles E. Torcia, Wharton'S Criminal Law § 29, at 181 (15th ed. 1993).

aid and comfort. (16c) Help given by someone to a national enemy in such a way that the help amounts to treason .• The phrase is a loan translation of the French aide et confort, which appears in the early 15th century in a French translation of the Bible. The first English-language use appears to have been in Grafton's Chronicles of 1568. [Cases: Treason C:=>6.] "Aid and comfort may be given in various ways, such as buying a vessel and fitting it for service in aid of the enemy, delivering prisoners and deserters to the enemy, or selling critical materials with knowledge of the fact that the pur· chaser buys them to use in the manufacture of gunpowder for the enemy, or otherwise to aid him in his prosecution of the war. And the courts have given short shrift to the claim that such a sale was not intended to aid the enemy but only to make a profit." Rollin M. Perkins & Ronald N. Boyce, Criminal Law 502 (3d ed. 1982).

aided-awareness survey. Trademarks. A trademark survey in which interviewees are asked to choose from a spectrum of choices that prominently feature the desired response. - Aided-awareness surveys are often discounted or entirely disregarded by courts in trademark-infringement actions. Also termed aided­ recall survey. (Cases: Trademarks C:=> 1619,1629(4).] aide-memoire (ayd-mem-wahr). [French] Int'llaw. A diplomatic document that a diplomatic agent leaves with the receiving state's department offoreign affairs on the occasion of a demarche . • The aide-memoire presents the receiving state with a precise record of the substance of the diplomatic agent's mission. It is typically written in an impersonal style, without men­ tioning either the addressee or the author. It appears on printed letterhead and is dated, but it is not Signed, initialed, or embossed with a seal. See DEMARCHE.

aider, n. 1. An act ofaiding; the curing of a defect. 2. One who aids another. aider by pleading over. (1860) The cure of a pleading defect by an adversary's answering the pleading without an objection, so that the objection is waived. [Cases: Pleading C:=>406(3).] aider by subsequent pleading. The cure of a pleading defect by an adversary's answer that refers to or admits a material fact or allegation that was not mentioned in the pleading, or an answer that shows the correct basis for the plaintiff's pleading. Also termed express aider. (Cases: Pleading C:=>403.] aider by verdict. (1824) The cure of a pleading defect by a trial verdict, based on the presumption that the record contains adequate proof of the necessary facts even if those facts were not specifically alleged. - Also termed cure by verdict. (Cases: Indictment and Information C:=>200-203; Pleading C:=>432-437.] Wherever a pleading states the essential requisites of a cause of action or ground of defense, it will be held sufficient after a general verdict in favor of the party pleading, though the statement be informal or inaccurate; but a verdict will never aid the statement of a title or cause of action inherently defective." Benjamin J. Shipman, Handbook ofCommon-Law Pleading § 332, at 531 (Henry Winthrop Ballantine ed., 3d ed. 1923). "AIDER BY VERDICT.

aiding an escape. The crime of helping a prisoner escape custody. [Cases: Escape C:=>5.] aid of the king. Rist. A request of the king made by a tenant for relief from another'S demand for rent. aid or abet. See AID AND ABET. aid or abet infringement. Patents. Through some affir­ mative act or conduct, to actively induce or assist with another person's infringement. - Aiding or abetting patent infringement is actionable under § 271(b) of the Patent Act. Cf. infringement in the inducement under INFRINGEMENT. [Cases: Patents C:=>259(1).J aid prayer. Hist. A plea by a life tenant or other holder of less than a fee simple to bring into the action another who holds an interest in the estate (such as a rever­ sioner or remainderman) to help defend the title. Also termed prayer in aid. aids. See AID (2). Aid to Families with Dependent Children. Obsolete. A federally funded, state-administered welfare program that provided financial assistance to needy families with dependent children. _ Aid to Families with Dependent Children has been replaced by Temporary Assistance to Needy Families. - Abbr. AFDC. See TEMPORARY ASSISTANCE TO NEEDY FAMILIES.

aiel (aY-84.] aldermannus (al-d;>r-man-;>s). [Law Latin] Hist. An alderman. aldermannus civitatis vel burgi (siv-i-tay-tis vel b. North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160 (1970). Cf. NO CONTEST. [Cases: Criminal Law C=>273(4.1), 273.1(2).] algOrithm. Patents. A mathematical or logical process consisting of a series of steps, designed to solve a specific type of problem.• Algorithms were long considered abstract ideas and therefore unpatentable subject matter. But in 1998, the U.S. Court of Appeals for the Federal Circuit found valid a patent on finan­ cial software as "a practical application ofa mathemati­ cal algorithm [that] produces a useful, concrete and tangible result." State St. Bank & Trust Co. v. Signa­ ture Fin. Group, 149 F.3d 1368 (Fed. Cir. 1998). That precedent makes it easier to patent computer software, which consists almost entirely of algorithms. [Cases: Patents C=>6.] algorithm exception. Patents. The general rule that an abstract mathematical function, such as an algo­ rithm, cannot be patented.• The exception was first articulated by the U.S. Supreme Court in Gottschalk v. Benson, 409 U.S. 63, 93 S.Ct. 253 (1972). The rule was undermined by State St. Bank & Trust Co. v. Signature Fin. Group, 149 F.3d 1368 (Fed. Cir. 1998). In that case, the court decided that a machine's transformation of numerical data into a calculated share price was a suf­ ficient and practical application ofa mathematical algo­ rithm, formula, or calculation, because the final share price was "a useful, concrete and tangible result." ­ Also termed mathematical-algorithm exception. [Cases: Patents C=>6.J ALI. abbr. AMERICAN LAW INSTITUTE. alia enormia (ay-lee-40(5).J aliamenta (al-ee-;;)-men-t;;)). [Latin] A liberty of passage or open way, such as a path through another's hedge or drainage for a waterway. alias (ay-Iee-;;)s), adj. Issued after the first instrument has not been effective or resulted in action. alias, adv. 1. Otherwise called or named; also known as <William Grimsby, alias the Grim Reaper>. 2. At another time. alias, n. (17c) 1. An assumed or additional name that a person has used or is known by. - Also termed assumed name;jictitious name. Cf. PSEUDONYM. [Cases:

alias dictus

Names C::=> 14.] 2. Hist. A second writ issued after the first has failed. See alias writ under WRIT. Pi. aliases. alias dictus (ay-lee-as dik-tas), adv. [Latin] Otherwise called; ALIAS (1). alias execution. See EXECUTION. alias process. See PROCESS. alias subpoena. See SUBPOENA. alias summons. See SUMMONS. alias writ. See WRIT. a libellis (ay Ii-bel-is). [Law Latin] Roman law. 1. An officer having charge of petitions (libelli) addressed to the emperor or sovereign. 2. CHANCELLOR OF THE EXCHEQUER. a libello ut libellatur (ay l;:~-bel-oh at lib-a-lay-tar). [Law Latin] Rist. From the libel as laid. _ The phrase appeared in a dismissal in favor of a defendant. alibi (al-a-bI), n. [Latin "elsewhere"] (l8c) 1. A defense based on the physical impossibility of a defendant's guilt by placing the defendant in a location other than the scene of the crime at the relevant time. Fed. R. Crim. P. 12.1. [Cases: Criminal Law C::=>31.5.] 2. The fact or state of having been elsewhere when an offense was committed. alibi, vb. To offer or provide an alibi for . alibi witness. See WITNESS. alien (ay-Iee-an or ayl-yan), n. (I4c) A person who resides within the borders of a country but is not a citizen or subject of that country; a person not owing allegiance to a particular nation. - In the United States, an alien is a person who was born outside the jurisdiction of the United States, who is subject to some foreign govern­ ment, and who has not been naturalized under U.S. law. [Cases: Aliens, Immigration, and Citizenship 104, 121,786, 116, 116.J alien ami. See alien friend.

alien amy. See alien friend.

alien enemy. A citizen or subject of a country at war

with the country in which the citizen or subject is living or traveling. Also termed enemy alien. [Cases: War and National Emergencyc::=> 11.] "In its natural meaning, the term 'alien enemy' indicates a subject of a State with which this country is at war; but in considering the enforcement of civil rights, the test is not nationality, but residence or place of business. Hence, if a person is voluntarily resident in or is carrying on business in an enemy country, then he is an alien enemy even though he be a British subject or the subject of a neutral State ...." 1 EW. Chance, Principles of Mercantile Law 52·53 (P.W. French ed., 13th ed. 1950).

alien friend. An alien who is a citizen or subject of a friendly power. - Also termed (in Law French) alien amy; alien ami. alien immigrant. See IMMIGRANT. deportable alien. A alien who has entered the United States but is subject to removal.

84

enemy alien. See alien enemy. excludable alien. A alien ineligible for admission or entry into the United States. illegal alien. (1901) An alien who enters a country at the wrong time or place, eludes an examination by officials, obtains entry by fraud, or enters into a sham marriage to evade immigration laws. Also termed undocumented alien. [Cases: Aliens, Immigration, and Citizenship C::=> 121, 786.J inadmissible alien. A deportable or excludable alien. See 8 USCA § 1182(a). nonresident alien. (1801) A person who is neither a resident nor a citizen of the United States. [Cases: Aliens, Immigration, and Citizenship C::=> 116.] resident alien. (18c) An alien who has a legally estab­ lished domicile in the United States. See NATURALIZA­ TION. [Cases: Aliens, Immigration, and Citizenship C::=> 116.] undocumented alien. See illegal alien. alien, vb. See ALIENATE. alienable (ay-Iee-a-na-bal or ayl-ya-), adj. Capable of being transferred to the ownership of another; trans­ ferable . - alienabil­ ity, n. alienage (ay-Iee-a-nij or ayl-ya-nij), n. The condition or status of being an alien. [Cases: Aliens, Immigration, and Citizenship C::> 104.] declaration ofalienage. See DECLARATION (1). alien ami. See alien friend under ALIEN. alien amy. See alien friend under ALIEN. Alien and Sedition Acts. Hist. Four statutes passed in 1798 deSigned to silence critics of the Federalist party by tightening reSidency requirements for citizenship, granting to the President the power to jail aliens consid­ ered dangerous to the country, and restricting freedoms ofthe press and speech by criminalizing speech hostile to the government. - All the acts had expired or been repealed by 1802. alienate (ay-Iee-a-nayt or ayl-ya-), vb. (16c) To transfer or convey (property or a property right) to another. ­ Also termed alien. alienator, n. alienatio feud; (ay-Iee-a-nay-shee-oh fyoo-dI). [Law Latin] Hist. DispOSition of a feudal right. alienatio feudifirmae feudifirmarum (ay-Iee-a-nay­ shee-oh fyoo-di-far-mee fyoo-di-far-mair-am). [Law Latin" disposition of a feuholding offeuholders"J Hist. A conveyance to avoid the prohibition on alienation of Crown lands. - It was nullified by statute in 1597. alienation (ay-Iee-a~nay-shan or ayl-ya-nay-shan), n. (14c) 1. Withdrawal from former attachment; estrange­ ment . 2. Conveyance or transfer of property to another . See extrin­ sic evidence under EVIDENCE. aliunde rule. (1943) Evidence. The doctrine that a verdict may not be impeached by a juror's testimony unless a foundation for the testimony is first made by competent evidence from another source. [Cases: Criminal Law C=>957; Federal Civil Procedure New Trial C=> 143; Trial C=>344.] ALJ. abbr. ADMINISTRATIVE-LAW JUDGE. all and singular. (16c) Collectively and individually. all-claims rule. Patents. 1he now-abandoned doctrine that a patent is invalid unless every inventor named in the patent made an inventive contribution to every claim in the patent.• Section 116 of the Patent Act now expressly provides that inventors may apply for a patent jointly even though each did not make a con­ tribution to the subject matter of every claim. [Cases: Patents allegata (al-;l-gay-t;l). [Latin] pl. ALLEGATUM. allegatio falsi (al-;l-gay-shee-oh fal-s! or fawl-sI). [Latin] Hist. An untrue allegation. Cf. EXPRESSIO FALSI. allegation, n. (15c) 1. The act of declaring something to be true. 2. Something declared or asserted as a matter of fact, esp. in a legal pleading; a party's formal statement of a factual matter as being true or provable, without its having yet been proved. - allege, vb. defensive allegation. Eccles. law. A defendant's response in an ecclesiastical action; speci£., a defen­ dant's pleading of the facts relied upon that require

alliance

87

the plaintiff's response under oath. Cf. primary alle­ gation (2). "The proceedings in the ecclesiastical courts are therefore regulated according to the practice ofthe civil and canon laws .... [Tlheir ordinary course of proceeding is; first, by citation, to call the party injuring before them. Then ... to set forth the complainant's ground of complaint. To this succeeds the defendant's answer upon oath; when, if he denies or extenuates the charge, they proceed to proofs by witnesses examined, and their depositions taken down in writing, by an officer of the court. if the defendant has any circumstances to offer in his defence, he must also propound them in what is called his defenSive allegation, to which he is entitled in his turn to the plaintiff's answer upon oath, and may from thence proceed to proofs as well as his antagonist." 3 William Blackstone, Commentaries on

the Laws of England 100 (1768).

disjunctive allegation. (1814) A statement in a pleading or indictment that expresses something in the alter­ native, usu. with the conjunction "or" . [Cases: Federal Civil Pro­ cedure (;:=:>675; Indictment and Information Pleading (;:=:>20, 53.] material allegation. (18c) In a pleading, an assertion that is essential to the claim, charge, or defense . primary allegation. (1847) 1. The principal charge made against an adversary in a legal proceeding. 2. Eccles. law. The opening pleading in an action in ecclesiastical court. - Also termed primary plea. Cf. defensive allegation. 3. Eccles. law. The entire state­ ment of facts to be used in a contested suit. allegation of faculties. Family law. Archaic. A state­ ment detailing a husband's or wife's property, made by a spouse who seeks alimony. See FACULTIES. allegation of use. See amendment to allege use under TRADEMARK APPLICATION AMENDMENT.

allegations-of-the-complaint rule. See EIGHT-CORNERS RULE.

allegatum (al-"-gay-t,,m), n. [Latin] A fact alleged in a pleading; ALLEGATION. PL allegata. Cf. PROBATUM. alleged (,,-lejd), adj. (15c) 1. Asserted to be true as described . 2. Accused but not yet tried . allegiance. 1. A citizen's or subject's obligation offidelity and obedience to the government or sovereign in return for the benefits of the protection of the state.• Alle­ giance may be either an absolute and permanent obli­ gation or a qualified and temporary one. acquired allegiance. The allegiance owed by a natural­ ized citizen or subject. actual allegiance. The obedience owed by one who resides temporarily in a foreign country to that country's government .• Foreign sovereigns, their representatives, and military personnel are typically excepted from this requirement. - Also termed local allegiance.

natural allegiance. The allegiance that native-born citizens or subjects owe to their nation. permanent allegiance. The lasting allegiance owed to a state by its citizens or subjects. temporary allegiance. The impermanent allegiance owed to a state by a resident alien during the period of residence. 2. Hist. A vassal's obligation to the liege lord. See LIEGE.

all-elements rule. Patents. The principle that under the doctrine ofequivalents, there can be no patent infringe­ ment if even one element of a claim or its eqUivalent is not present in the accused device .• This rule acts to limit the doctrine of eqUivalents and prevent the doc­ trine's application to an entire claim, rather than the claim's constituent elements. Also termed all-limi­ tations rule; rule against vitiation ofa claim element. Cf. ALL-STEPS RULE, INHERENCY DOCTRINE. [Cases: Patents (;:=:>226.6.] Allen charge. (1940) Criminal procedure. A supplemen­ tal jury instruction given by the court to encourage a deadlocked jury, after prolonged deliberations, to reach a verdict. Allen v. United States, 164 U.S. 492, 17 S.Ct. 154 (1896). - Also termed dynamite charge; dynamite instruction; nitroglycerine charge; shotgun instruction; third-degree instruction. [Cases: Criminal Law 865(1.5).] aller a Dieu (a-lay" dyuu or dyoo). [Law French] To go to God .• This phrase prays for the case to be dis­ missed from court. Sometimes spelled aler aDieu. Cf. ADIEU. aller sans jour (a-lay san zhoor). [Law French] To go without day.• This phrase prays for a final dismissal of a case. Also spelled aler sans jour. See GO HENCE WITHOUT DAY; ADEU.

all-estate clause. See ALL-THE-ESTATE CLAUSE. all-events test. (1954) Tax. A requirement that all events fixing an accrual-method taxpayer's right to receive income or incur expense must occur before the taxpayer can report an item of income or expense. [Cases: Internal Revenue (;:=:>3373.] alleviare (,,-lee-vee-air-ee), vb. [Law Latin] To levy or pay a fine or composition. all faults, with. See AS IS. all fours. See ON ALL FOURS. all-holders rule. Securities. 1. An SEC rule that prohibits a public offering by the issuer of shares to some, but not all, of the holders of a class of shares. 2. An SEC rule requiring a tender offeror to make its offer to all the target company's shareholders. [Cases: Securities Regulation (;:=:>52.30-52.50.] alliance. 1. A bond or union between persons, families, states, or other parties. Cf. STRATEGIC ALLIANCE. 2. Int'llaw. A union or association of two or more states or nations, usu. formed by league or treaty, esp. for jointly waging war or mutually protecting against and

allied offense

repelling hostile attacks .• An example is the North Atlantic Treaty Organization (NATO). Cf. DETENTE; ENTENTE.

allied offense. See OFFENSE (1). all-inclusive mortgage. See wraparound mortgage under MORTGAGE.

allision (;J-lizh-.;m), n. Maritime law. The contact of a vessel with a stationary object such as an anchored vessel or a pier.• In modern practice, "collision" is often used where "allision" was once the preferred term. Cf. COLLISION. [Cases: Shipping C:=>81.] allide (;J-hd), vb. all-limitations rule. See ALL-ELEMENTS RULE. allocable (al-;J-k;J-b;Jl), adj. Capable of being allocated. allocation, n. (16c) A designation or apportionment for a specific purpose; esp., the crediting ofa receipt or the charging of a disbursement to an account . allocate, vb. - allocable, adj. alloca­ tor, n. allocatione facienda (al-;J-kay-shee-oh-nee fay-shee­ en·d;J), n. See DE ALI.OCATIONE FACIENDA. allocatur (al-;J-kay-t;Jr). [Law Latin] It is allowed .• This word formerly indicated that a writ, bill, or other pleading was allowed. It is still used today in Pennsyl­ vania to denote permission to appeal. - Also termed

allogatur. special allocatur. An allowance ofa writ (such as a writ of error) that is legally required in certain cases. allocute (al-;J-kyoot), vb. To deliver an allocution in court. allocution (al-361.] allocutory (;)-lok-y;J-tor-ee), adj. Of or relating to an allocution . allocutus. See ARREST OF JUDGMENT. allod (al-;Jd), n. Hist. The domain of a household. allodial ( 1.] 2. An unau­ thorized change in an instrument or an addition to an incomplete instrument resulting in the modification of a party's obligations. UCC § 3-407. lCases: Altera­ tion ofInstruments C=> 1-30.] altercation. A vehement dispute; a noisy argument. "altercation. The traditional view is that this word refers to 'a noisy brawl or dispute,' not rising to the seriousness of physical violence .... But in AmE, the word now often denotes some type of scuffling or fighting, especially in police jargon." Bryan A. Garner, A Dictionary of Modern American Usage 34 (1998).

alter ego. (1879) A corporation used by an individual in conducting personal business, the result being that a court may impose liability on the individual by piercing the corporate veil when fraud has been perpe­ trated on someone dealing with the corporation. See PIERCING THE CORPORATE VEIL. [Cases: Corporations C=> 1.4(4).J alter-ego rule. (1939) 1. Corporations. The doctrine that shareholders will be treated as the owners of a cor­ poration's property, or as the real parties in interest, whenever it is necessary to do so to prevent fraud or to do justice. [Cases: Corporations C=>1.4(4).]2. Criminal law. The principle that one who defends another against attack stands in the position of that other person and can use only the amount of force that the other person could use under the circumstances. [Cases: Assault and Battery Homicide C=>757.] altering or amending a judgment. A trial court's act of correcting a substantive mistake in a judgment, as by correcting a manifest error of law or fact. Fed. R. Civ. P. 59(e). [Cases: Federal Civil ProcedureC=>2641-2662; . Judgment alternat (awl-tC)r-nit or al-ter-nah). [French] The rotation in precedence among states, diplomats, etc., esp. in the signing of treaties. - This practice gives each diplomat a copy ofthe treaty with the diplomat'S Signature appear­ ing first. alternate. Parliamentary law. A proxy for a delegate, usu. chosen in the same manner as the delegate rather than chosen by the delegate. See DELEGATE (2); PROXY (1). alternate legacy. See LEGACY. alternate valuation date. Tax. The date six months after a decedent's death. - Generally, the estate can elect to appraise the decedent's property either as of the date of the decedent's death or as of the alternate valuation date. See BASIS. [Cases; Internal Revenue C=>4184.20; Taxation alternatim (al-tC)r-nay-tim or awl-), adv. [Latin] Inter­ changeably; by turns. Alternative Agricultural Research and Commercializa­ tion Corporation. A federally chartered corporation

in the U.S. Department of Agriculture responsible for funding the development and marketing of new nonfood products made from farm and forestry mate­ rials. Abbr. AARCC. alternative constituency. See NONSHAREHOLDER CON­ STITUENCY.

alternative contract. See CONTRACT. alternative devise. See DEVISE. alternative dispute resolution. (1978) A procedure for settling a dispute by means other than litigation, such Also as arbitration or mediation. - Abbr. ADR. termed dispute resolution. See ARBITRATION; MEDIA­ TION. [Cases: Alternative Dispute Resolution 441,500.] "ADR can be defined as encompassing all legally permitted processes of dispute resolution other than litigation. While this definition (or something like it) is widely used, ADR proponents may object to it on the ground that it privi­ leges litigation by giving the impression that litigation is the normal or standard process of dispute resolution, while alternative processes are aberrant or deviant. That impres­ sion is false. litigation is a relatively rarely used process of dispute resolution. Alternative processes, especially negotiation, are used far more frequently. Even disputes involving lawyers are resolved by negotiation far more often than litigation. So ADR is not defined as everything­ but·litigation because litigation is the norm. Litigation is not the norm. ADR is defined as everything-but·litigation because litigation, as a matter of law, is the default process of dispute resolution." Stephen J. Ware, Alternative Dispute Resolution § 1.5, at 5-6 (2001).

alternative expression. Patents. In a patent claim, a recitation of two or more elements or limitations that perform the same function .• Although once contrary to U.S. Patent and Trademark Office policy, alternative expres­ sions are now permitted ifthey present no uncertainty or ambiguity about the scope or clarity of the claims. Also termed alternative language. [Cases: Patents 101(5).] alternative judgment. See JUDGMENT. alternative liability. See LIABILITY. alternative mandamns. See MANDAMUS. alternative-means doctrine. (1968) Criminal law. The principle that when a crime may be committed in more than one way, the jury must be unanimous on the defendant's guilt but need not be unanimous on the possible different methods of committing the crime, as long as each possible method is supported by substan­ tial evidence. [Cases: Criminal Law C=>872.5.] alternative-methods-of-performance contract. See alternative contract under CONTRACT. alternative minimum tax. See TAX. alternativeness rejection. See REJECTION. alternative obligation. See OBLIGATION. alternative order. 1. ORDER (2). 2. ORDER (8). alternative pleading. See PLEADING (2). alternative promise. See PROMISE.

alternative relief

alternative relief. See RELIEF. alternative remainder. See REMAINDER. alternative sentence. See SENTENCE. alternative writ. See WRIT. altern is vicibus (al-t3r-nis vis-i-b..s). [Law Latin] Hist. Eccles. law. By turn; alternately. _ The patrons of two united churches could exercise their right ofpresenta­ tion to a benefice alternis vicibus. alterum non laedere (al-t3r-3m [orawl-] non lee-d3-ree). [Latin "not to injure another"] Roman & civil law. To hurt no one by word or deed. _ This was one of the three ge~eral precepts in which Justinian expressed the requirements of the law (Digest 1.1.10.1; Institutes 1.1.3). Cf. HONESTE VIVERE; SUUM CUIQUE TRIBUERE. alteruter (al-t3r-yoo-t3r or awl-). [Law Latin] One of two; either. altius non tollendi (al-shee-3s non t3-1en-dr). [Latin "of not raising higher"] Roman & civil law. A servitude prohibiting a landowner from building a house above a certain height. altius tollendi (al-shee-3s t .. -Ien-dI). [Latin "of raising higher"] Roman & civil law. A servitude that allows a landowner to build a house as high as desired. alto et basso. See DE ALTO ET BASSO. altum mare (al-t3m mair-ee or mahr-ee), n. [Law Latin] Hist. The high seas; the deep seas. a lui et a ses heritiers pour toujours (a lwee ay a sayz e-ree-tyay poor too-zhoor). [Law French] To him and his heirs forever. See and his heirs under HEIR. alvei mutatio (al-vee-I myoo-tay-shee-oh). [Latin fro alveus "the bed or channel of a stream") Hist. A change in a stream's course. alveus (al-vee-3s), n. [Law Latin] Hist. The bed or channel through which a stream flows in its ordinary course. [Cases: Waters and Water Courses (;::>89.] always-speaking statute. See speaking statute under STATUTE.

ALWD (ahl-w3d or al-w..d). abbr. See ASSOCIATION OF LEGAL WRITING DIRECTORS.

ALWD Citation Manual. A gUide to American legal citation written and edited by legal-wri profes­ Writing sionals affiliated with the Association ofL Directors. - First published in 2000 as an alternative to the Bluebook, it contains one citation system for all legal documents and does not distinguish between citations in law-journal footnotes and those in other writings. The full name is the ALWD Citation Manual: Often shortened A Professional System of Citation. to ALWD Manual. Cf. BLUEBOOK. a.m. abbr. ANTE MERIDIEM. AMA. abbr. (1911) 1. American Medical Association. 2. Against medical advice. a ma intent (ah mah an-tawn). [Law French) On my action.

92

amalgamation (3-mal-g3-may-sh3n), n. (17c) The act of combining or uniting; consolidation . See MERGER (1). [Cases: Corporations (;::>581.] - amal­ gamate, vb. - amalgamator, n. Amalphitan Code (3-mal-f..-t3n). Hist. A compilation of maritime law made late in the 11th century at the port of Amalfi near Naples. _ The Code was regarded as a primary source of maritime law throughout the Mediterranean to the end of the 16th century. - Also termed Amalphitan Table; Laws ofAmalfi; Tablets of Amalfi· a manibus (ay man-3-b3s), n. [Law Latin] Hist. A royal scribe. amanuensis ( 1-8.] 2. A representative appointed by another. 3. An unofficial or nonappointed representative. Also spelled (archaically) embassa­ dor. - ambassadorial, adj. ambassadorship, n. ambassador extraordinary. An ambassador who is employed for a particular purpose or occasion and has limited discretionary powers. Cf. ambassador plenipotentiary. ambassador leger. See resident ambassador. ambassador ordinary. See resident ambassador. ambassador plenipotentiary. An ambassador who has unlimited discretionary powers to act as a sovereign's or government's deputy, esp. to carry out a particu­ lar task, such as treaty negotiations. - Also termed minister plenipotentiary; envoy plenipotentiary. Cf. ambassador extraordinary. ordinary ambassador. See resident ambassador. resident ambassador. An ambassador who resides in a foreign country as the permanent representative of a sovereign or nation. _ A resident ambassador has

ambiguity

93

the right to request a personal interview with the host Also termed ambassador nation's head of state. leger; ordinary ambassador; ambassador ordinary. [Cases: Ambassadors and Consuls C=>3.] AMBER. abbr. See AMBER ALERT. Amber Alert. A system by which the police can rapidly broadcast to the general public a report of a missing or endangered child by means of radio and televi­ sion announcements. _ The alert is named for Amber Hagerman ofTexas, a nine-year-old who was abducted and murdered in 1996 by an unknown person. The system has been adopted by many communities in the U.S. and Canada. Local variations exist. In Arkansas, for example, the system is called the Morgan Nick Alert after a child who was abducted by a stranger in 1995. When the first word is in all capital letters, AMBER is an acronym meaning America's Missing: Broadcast Emergency Response. Also termed Amber Plan. See AMBER'S LAW. Cf. CODE ADAM. Amber Hagerman Act. See AMBER'S LAW. Amber's law. A federal law that requires, among other things, life in prison without parole for two-time sex offenders whose victims are children, and reports to Congress about judges whose sentences fall below federal guidelines. _ The law was named for Amber Hagerman of Texas, a nine-year-old girl who was abducted and murdered by an unknown person in 1996. - Also termed Amber Hagerman Act. See AMBER ALERT. [Cases: Sentencing and Punishment C=>1236.] A.M. Best Company. An investment-analysis and -advisory service. _ A.M. Best rates the financial strength of businesses from A++ (strongest) to A+, A, A-, B++, and so on to C- and D. A grade of E means that the company is under state supervision, and an F indicates that the company is in liquidation. ambidexter. 1. A judge or embracer who takes bribes from both sides in a dispute. 2. A lawyer who abandons the party that he or she initially represented in a dispute to represent the opposing party in the same suit. 3. A person who engages in double-dealing. "Ambidexter is he that, when a matter is in suit between men, takes money of the one side and of the other, either to labour the suit, or such like; or if he be of the jury, to give his verdict." William Rastell, Termes de /a Ley 28 (lst. Am. ed. 1812).

ambiguitas latens (am-bi-gyoo-a-tas lay-tenz). See latent ambiguity under AMBIGUITY. ambiguitas latens et ambiguitas patens (am-bi-gyoo-a­ tas lay-tenz et am-bi-gyoo-a-tas pay-tenz). [Latin] Hist. Latent and patent ambiguity. See latent ambiguity and patent ambigUity under AMBIGUITY. ambiguitas patens (am-bi-gyoo-a-tas pay-tenz). See patent ambiguity under AMBIGUITY. ambiguity (am-bi-gyoo-a-tee), n. (15c) An uncertainty of meaning or intention, as in a contractual term or statutory provision. Cf. MEANING. [Cases: Contracts

C=> 143(2); Statutes (;::::> 190.] yoo-as), adj.

ambiguous (am-big­

"In the context of statutory interpretation the word most frequently used to indicate the doubt which ajudge must entertain before he can search for and, if possible, apply a secondary meaning is 'ambiguity'. In ordinary language this term is often confined to situations in which the same word is capable of meaning two different things, but, in relation to statutory interpretation, judicial usage sanc· tions the application of the word 'ambigUity' to describe any kind of doubtful meaning of words, phrases or longer statutory proviSions. Hinchy's case prompted the sugges­ tion that if, in a particular context, words convey to differ­ entjudges a different range of meanings 'derived from, not fanciful speculations or mistakes about linguistic usage, but from true knowledge about the use of words, they are ambiguous.'" Rupert Cross, Statutory Interpretation 76-77 (1976).

ambiguity on the factum. An ambigUity relating to the foundation of an instrument, such as a question relating to whether a testator intended for a particular clause to be part of an agreement, whether a codicil was intended to republish a former will, or whether the residuary clause was accidentally omitted. calculated ambiguity. A purposeful use of unclear language, usu. when two negotiating parties cannot agree on clear, precise language and therefore leave a decision-maker to sort out the meaning in case of a dispute. - Strictly speaking, this is a misnomer: the more precise term is vagueness, not ambiguity. See VAGUENESS (1).

extrinsic ambiguity. See latent ambiguity. intrinsic ambiguity. See patent ambiguity. latent ambiguity. (lSc) An ambiguity that does not readily appear in the language of a document, but instead arises from a collateral matter when the docu­ ment's terms are applied or executed . Also termed extrinsic ambiguity; equivocation; ambiguitas latens. [Cases; Contracts C=> 143(2); Evidence C=>452.] "Instead of this word 'equivocation,' the phrase 'latent ambiguity' is sometimes used by courts, 'latent' because it does not develop until we seek to apply it and then discover the equivocation. This phrase was invented by Lord Bacon, in one of his maxims, and it long held sway; but it has only served to confuse discussion, and his other word for the same thing, 'equivocation,' is more suitable, and has come into general use since Professor Thayer's masterly analysis of the subject some fifty years ago: John H. Wigmore, A Students' Textbook of the Law of Evidence 529 (1935). ~ In fact, the usual term today is latent ambiguity. ~ Eds.

patent ambiguity (pay-tant). (ISc) An ambigUity that dearly appears on the face of a document, arising from the language itself . Also termed intrinsic ambiguity; ambiguitas patens. [Cases: Contracts C=> 143(2); Evidence C=>45Lj "[Llatent ambiguity ... must be carefully distinguished from patent ambiguity, where words are omitted, or con· tradict one another; for in such cases explanatory evidence

ambiguity doctrine is not admissible. Where a bill of exchange was expressed in words to be drawn for 'two hundred pounds' but in figures for '£245,' evidence was not admitted to show that the figures expressed the intention of the parties." William R. Anson, Principles of the Law of Contract 401 (Arthur L Corbin ed., 3d Am. ed. 1919).

ambiguity doctrine. See CONTRA PROFERENTEM. ambit (am-bit). (14c) 1. A boundary line or limit; esp., the scope of a statute or regulation, or the sphere of influ­ ence and authority of an agency, committee, depart­ ment' or the like. 2. A space surrounding a house or town. ambitus (am-bi-tas), n. [Latin ambitus "deviousness, corruption"] Hist. The procuring of a public office by money or gifts; the unlawful buying and selling of a public office. ambulance chaser. 1. A lawyer who approaches victims of accidents in hopes of persuading them to hire the lawyer and sue for damages. 2. A lawyer's agent who engages in this activity. 3. Tendentious slang. An attorney. [Cases; Attorney and Client (;=>32(9).] ­ ambulance-chasing, n. ambulance-chasing. A blatant form of solicitation in which the lawyer (either personally or through an agent) urges injured people to employ the lawyer to rep­ resent them. [Cases; Attorney and Client (;=>32(9).] ambulatory (am-bya-Ia-tor-ee), adj. (16c) 1. Able to walk . 2. Capable of being altered or revised; not yet legally :fixed . ameliorating waste. See WASTE (1). amelioration, n. 1. The act ofimproving something; the state ofbeing made better. 2. An improvement. - ame­ liorative, adj. ameliorative waste. See ameliorating waste under WASTE (1). amenable (<J-mee-n<J-b<JI or -men-), adj. (16c) Legally answerable; liable to being brought to judgment . - amenability, n.

94

amend, vb. (13c) 1. To make right; to correct or rectify . 2. To change the wording of; sped£., to formally alter (a statute, constitution, motion, etc.) by striking out, inserting, or substituting words . See AMENDMENT (3). amendable, adj. amendabil­ ity, n. amend a previous action. See amend something previ­ ously adopted. amend something previously adopted. Parliamentary law. (Of a deliberative assembly) to change an oth­ erwise final text. Also termed amend a previous action. amendatory (a-men-da-tor-ee), adj. Designed or serving to amend; corrective . amended complaint. See COMPLAINT. amended pleading. See PLEADING (1). amended return. See TAX RETURN. amende honorable (<J-mend on-a-ra-b",l or a-mawnd on-a-rah-bal). [French "honorable reparation"] Hist. A formal reparation for an offense or injury, done by making an open and usu. humiliating acknowledg­ ment and apology so as to restore the victim's honor. ­ This apology could be accomplished, for example, by walking into church with a rope around the neck and a torch in hand, begging forgiveness from the injured party. amende profitable (a-mend proh-fee-tahb-Ia), n. Roman Dutch law. In a defamation action, reparations made by a defendant who pays a sum that the plaintiff has named under oath as being less than full satisfaction for the claim. amender, n. One who amends (a document, etc.). amendment. (17c) 1. A formal revision or addition proposed or made to a statute, constitution, pleading, order. or other instrument; specif., a change made by addition, deletion, or correction; esp., an alteration in wording. [Cases: Constitutional Law Federal Civil Procedure Pleading (;=>229; Statutes 131.] 2. The process of making such a revision. amendment as of course. An amendment, usu. to pleadings, that a party has a statutory right to apply for without the court's permission. [Cases; Federal Civil Procedure (;=>825; Pleading (;=>231.] amendment on court's own motion. A change to a pleading or other document by the judge without a motion from a party. [Cases: Federal Civil Procedure (;=>826; Pleading (;=>232.] nunc pro tunc amendment (n;mgk proh tangk or nuungk proh tuungk). An amendment that is given retroactive effect, usu. by court order. [Cases; Judgment (;=>326; Motions (;=>56(2).] 3. Parliamentary law. A motion that changes another motion's wording by striking out text, inserting or

amendment

95

adding text, or substituting text. See AMEND

(2).

Cf.

BLANK (2).

amendment by adding. An amendment that places new wording at the end of a motion or of a paragraph or other readily divisible part within a motion.• Some authorities treat amendment by adding as a form of amendment by inserting. Cf. amendment by insert­

ing. amendment by inserting. An amendment that places new wording within or around a motion's current wording. _ Some authorities distinguish amend­ ment by adding, which places new wording after the current wording, from amendment by inserting. Cf.

amendment by adding. amendment by striking out. An amendment that removes wording from a motion's current wording. amendment by striking out and inserting. An amend­ ment that removes wording and replaces it with alter­ native wording.• The motion can properly apply only to inserting wording in place of the wording being struck out; it cannot strike out some wording and insert new wording in a different place. See amend­

ment by substituting; CREATE A BLANK. amendment by substituting. 1. A special type ofamend­ ment by striking out and inserting that replaces an entire main motion or a paragraph or other readily divisible part within a main motion; an amendment of greater scope than a perfecting amendment. Cf. perfecting amendment. 2. An amendment by striking out and inserting. See amendment by striking out and inserting. - Also termed amendment in the nature of a substitute (in sense 1); substitute; substitution; substitute amendment. _ Parliamentary writers differ on when an amendment by striking out and inserting qualifies as an amendment by substitut­ ing. Some manuals treat the two as equivalent and apply the same rules to them. Others maintain that an amendment is not a substitute unless it replaces the entire main motion or at least a readily divisible part within the main motion and apply different rules to an amendment by substituting than to a less drastic amendment. amendment in the nature ofa substitute. See amend­ ment by substituting (1). amendment ofthe first degree. See primary amend­

ment. amendment of the first rank. See primary amend­ ment. amendment of the second degree. See secondary amendment. amendment ofthe second rank. See secondary amend­ ment. amendment to the amendment. See secondary amend­ ment. amendment to the main question. See primary amend­ ment. amendment to the text. See primary amendment.

committee amendment. An amendment to a motion reported by a committee to which the motion was referred. first-degree amendment. See primary amendment. floor amendment. An amendment offered from the floor by an individual member, as distinguished from a committee amendment. Cf. committee amend­

ment. friendly amendment. An amendment that the mover of the motion being amended supports, and to which no other member objects. 'The term 'friendly amendment' is often used to describe an amendment offered by someone who is in sympathy with the purposes of the main motion, in the belief that the amendment will either improve the statement or effect of the main motion, presumably to the satisfaction of its maker, or will increase the chances of the main motion's adoption. Regardless of whether or not the maker of the main motion 'accepts' the amendment, it must be opened to debate and voted on formally (unless adopted by unani· mous consent) and is handled under the same rules as amendments generally." Henry M. Robert, Robert's Rules of Order Newly Revised § 12, at 154 (lOth ed. 2000). "Often, such an amendment is proposed as a 'friendly amendment: simply indicating that the member propos­ ing the amendment feels it will be acceptable to the maker of the main motion. If the maker of the original motion does not wish to accept the amendment, the amendment must then receive a second to come before the assembly, and will receive the usual consideration by the assembly. However, even the acceptance of the proposed amend­ ment by the maker of the motion is simply a statement of support, and every member of the assembly retains the right to object to the amendment's adoption by general consent, and to debate and vote on the amendment." Alice Sturgis, The Standard Code of Parliamentary Procedure 53 (4th ed. 2001).

hostile amendment. An amendment that is opposed by the supporters of the main motion.

killer amendment. An amendment that has the effect, intended or not, of ensuring the defeat of the main motion. nongermane amendment. An amendment that adds an unrelated rider.• A nongermane amendment is out of order in most ordinary assemblies and many legislative bodies. But some legislative bodies, in juris­ dictions where legislation may embrace more than one subject, allow nongermane amendments to a bill. See RlDER. perfecting amendment. An amendment that merely edits the form of a main motion or a primary amend­ ment but does not substantially change its content; an amendment of lesser scope than an amendment by substituting. Cf. amendment by substituting (1). primary amendment. An amendment that directly amends the main motion. Cf. secondary amend­

ment. pro forma amendment. An amendment moved solely for the purpose of obtaining the floor and treated as withdrawn once the mover has spoken. - The custom­ ary pro forma amendment in Congress is a motion "to strike the last word."

96

amendment after allowance

secondary amendment. An amendment that alters a pending primary amendment. Cf. primary amend­ ment. second-degree amendment. See secondary amend­ ment. substitute amendment. 1. A secondary amendment that substantially replaces rather than edits a primary amendment. 2. See amendment by substituting. amendment after allowance. See PATENT-APPLICATION AMENDMENT.

amendment after appeal. See

of real property, such as location, view, landscaping, security, or access to recreational facilities. a mensa et thoro (ay men-S 1343; Schools (;::;> 160.] amita (am-;:l-t;:l). [Latin] Civil law. The sister of one's father; an aunt on the father's side. PI. amitae. amitina (am-;:l-tI-n;:l). [Latin] Civil law. The daughter of a paternal aunt or maternal uncle; a female first cousin. Pl. amitinae. amitinus (am-;:l-tl-n;:ls). [Latin] Civil law. The son of a paternal aunt or maternal uncle; a male first cousin. PI. amitini. amittere curiam (;:l-mit-;:l-ree kyoor-ee-;:lm), vb. [Law Latin] Rist. To lose the privilege of attending court. amittere legem terrae (;:l-mit-;:l-ree lee-j;:lm ter-ee). See LIBERAM LEGEM AMITTERE.

amittere liberam legem (;:l-mit-;:l-ree Hb-dr-;:lm lee-jam). See LIBERAM LEGEM AMITTERE. amnesty, n. (16c) A pardon extended by the govern­ ment to a group or class of persons, usu. for a political offense; the act ofa sovereign power officially forgiving certain classes of persons who are subject to trial but have not yet been convicted . - Unlike an ordinary pardon, amnesty is usu. addressed to crimes against state sovereignty that is, to political offenses with respect to which forgiveness is deemed more expedient for the public welfare than prosecution and punishment. Amnesty is usu. general, addressed to classes or even communities. Also termed general pardon. See PARDON. [Cases: Pardon and Parole (;::;> 26.] amnesty, vb. "Amnesty . .. derives from the Greek amnestia (,forget­ ting'), and has come to be used to describe measures of a more general nature, directed to offenses whose criminal­ ity is considered better forgotten." Leslie Sebba, "Amnesty and Pardon," in 1 Encyclopedia of Crime and justice 59, 59 (Sanford H. Kadish ed., 1983).

express amnesty. Amnesty granted in direct terms. implied amnesty. Amnesty indirectly resulting from a peace treaty executed between contending parties. amnesty clause. A clause, esp. one found in a peace treaty, that wipes out past offenses such as treason, sedition, rebellion, and even war crimes. - A sover­ eign may grant amnesty to all guilty persons or only to certain categories of offenders. Amnesty International. An international nongov­ ernmental organization founded in the early 1960s to protect human rights throughout the world. - Its mission is to «secure throughout the world the obser­ vance ofthe Universal Declaration of Human Rights." Amnesty Int'l Statute, art. 1. a morte testatoris (ay mor-tee tes-td-tor-is). [Latin] Rist. From the death of the testator. - The phrase appeared in reference to the moment when a legacy vests in the beneficiary.

amortization (am-;:lr-t;:l-zay-sh;:ln), n. (1851) 1. The act or result of gradually extinguishing a debt, such as a mortgage, usu. by contributing payments of principal each time a periodic interest payment is due. negative amortization. An increase in a loan's princi­ pal balance caused by monthly payments insufficient to pay accruing interest. 2. The act or result of apportioning the initial cost of a usu. intangible asset, such as a patent, over the asset's useful life. Cf. DEPRECIATION. Sometimes also termed amortizement. amortization reserve. See RESERVE. amortization schedule. A schedule of periodic payments of interest and principal owed on a debt obligation; specif., a loan schedule showing both the amount of principal and interest that is due at regular intervals over the loan term and the remaining unpaid principal balance after each scheduled payment is made. amortize, vb. (1867) 1. To extinguish (a debt) gradu­ ally, often by means of a sinking fund. 2. To arrange to extinguish (a debt) by gradual increments. 3. Rist. To alienate or convey lands to a corporation (that is, in mortmain). - Also spelled amortise. See MORTMAIN. amortized loan. See LOAN. amortized mortgage. See MORTGAGE. amortizement. See AMORTIZATION. amotion. (17c) 1. A turning out, as the eviction of a tenant or the removal of a person from office. [Cases: Landlord and Tenant (;::;>275; Officers and Public Employees 70.] 2. The common-law procedure available to share­ holders to remove a corporate director for cause. [Cases: Corporations (;::;>294.] ''The cases do not distinguish clearly between disfranchise­ ment and amotion. The former applies to members, and the latter only to officers; and if an officer be removed for good cause, he may still continue to be a member of the corporation. Disfranchisement is the greater power, and more formidable in its application; and in joint stock or moneyed corporations no stockholder can be disfran­ chised, and thereby deprived of his property or interest in the general fund, by any act of the corporation, Without at least an express authority for that purpose." 2 James Kent, Commentaries on American Law *298 (George Comstock ed., 11th ed. 1866).

3. The wrongful moving or carrying away of another's personal property. amount in controversy. (1809) The damages claimed or relief demanded by the injured party in a lawsuit. • For a federal court to have diversity jurisdiction, the amount in controversy must exceed $75,000. 28 USCA § 1332(a). - Also termed jurisdictional amount; matter in controversy. See DIVERSITY OF CITIZENSHIP; AGGRE­ GATION DOCTRINE. [Cases: Courts C=> 119, 167; Federal Courts (;::;>335.] amount realized. Tax. The amount received by a an asset, such as taxpayer for the sale or exch cash, property, services recei or debts assumed by a buyer. Cf. GAIN (3); LOSS (2). [Cases: Internal Revenue (;::;> 3194; Taxation (;::;>3466.]

amove

amove, vb. To remove (a person) from an office or position. - amoval, n. amoveas manus (ay-moh-vee-;Js man-;Js). [Law Latin "that you remove your hands") Hist. 1. A judgment ordering the Crown to relinquish possession ofland to the complainant.• The judgment is so called from the emphatic words quod manus domini regis amoveantur ("that the hands of the king be removed"). 2. The writ issued on the judgment. amparo. Mexican law. A summary proceeding intended to vindicate an individual's or company's rights without necessarily establishing a precedent for similarly situated parties. - Also termed judicio de amparo. ampliatio (am-plee-ay-shee-oh), n. [Latin) Roman law. 1. The act of deferring or reserving judgment. 2. In a criminal trial before a comitia, the repeating of evidence at the jury's request. PI. ampliationes (am­ plee-ay-shee-oh-neez). ampliation (am-plee-ay-sh;Jn). Civil law. An extending; a postponement of the decision in a case. amplius (am-plee-;Js), adj. & adv. [Latin) Hist. More; further. AMS. abbr. AGRICULTURAL MARKETING SERVICE. AMT. abbr. See alternative minimum tax under TAX. Amtrak. See NATIONAL RAILROAD PASSENGER CORPO­ RATION. a multo fortiori (ay m;Jl-toh for-shee-or-I). [Latin) By far the stronger reason. Cf. AFORTIORI. amusement tax. See TAX. amy (;J-mee), n. [Law French) A friend .• This is an alter­ native spelling of ami. See AMI. anaconda clause. See MOTHER HUBBARD CLAUSE (1). anacrisis (an-;J-krI-sis). Civil law. An investigation or inquiry, esp. one conducted by torture. analog. Patents. A different material, usu. a chemical or DNA sequence, that produces the same result as the specified material when used in a certain way. • To prevent others from free-riding on their innova­ tion without technically infringing their exclusive rights, patent applicants often include analogs in their claims. - Also spelled analogue. - Also termed func­ tional analog; equivalent. analogous art. See ART. analogous use. 1. Patents. The application of a process already known in one field of art to produce a similar result in another field .• Unless the fields are so unre­ lated or the outcomes so different as to produce a novel, useful, and nonobvious result, an analogous use is not patentable. [Cases: Patents (::::>27(1).) 2. Trade­ marks. The use of a mark in marketing and advertis­ ing a product or service before the actual sale of the product or service, in order to establish the mark's use in commerce.• For the owner to take advantage of the analogous-use doctrine, the marketing campaign must be substantial and the product or service must be available soon after the campaign. An owner who files

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an intent-to-use application may tack on the period of analogous use for purposes of priority and incontest­ ability. analytical jurisprudence. See JURISPRUDENCE. analytical memorandum. See research memorandum under MEMORANDUM. anarchist, n. (l7c) One who advocates the overthrow of organized government by force or who believes in the absence of government as a political ideal. - anar­ chism (the philosophy), n. anarchy, n. (l6c) 1. Absence of government; lawlessness. 2. A sociopolitical theory holding that the only legit­ imate form of government is one under which indi­ viduals govern themselves voluntarily, free from any collective power structure enforcing compliance with social order. - anarchic, adj. criminal anarchy. (1831) A doctrine advocating the overthrow of organized government by force or violence, by assassinating a head of government, or by some other unlawful act .• Most states have laws limiting speech that incites criminal anarchy. The laws do not apply to abstract philosophical expres­ sions or predictions or like expressions protected by the First and Fourteenth Amendments. Criminal­ anarchy statutes (e.g., 18 USCA § 2385) apply only to speech that is calculated to induce forceful and violent activity, such as attempts to incite people to riot, or that otherwise generates some "clear and present danger" that the advocated violent overthrow may be attempted or accomplished. See Gitlow v. New York, 268 U.S. 652, 666, 45 S.Ct. 625, 630 (1925). [Cases: Insurrection and Sedition (::::>2.) anathema (;J-nath-;J-m;J), n. An ecclesiastical curse that prohibits a person from receiving communion (as in excommunication) and bars the person from contact with members of the church. - anathematize, vb. anatocism (;J-nat-;J-siz-;Jm), n. [fro Greek anatokismos "to lend on interest again"] Rare. 1. Compound interest. See compound interest under INTEREST (3). 2. The practice of compounding interest. anatomical gift. See GIFT. ancestor, n. A person from whom an estate has passed; ASCENDANT.• This word is the correlative of heir. Cf.

HEIR (1).

common ancestor. A person to whom the ancestry of

two or more persons is traced. ancestral debt. See DEBT. ancestral estate. See ESTATE (1). ancestry. (14c) A line of descent; lineage. anchorage. Maritime law. 1. An area where ships anchor. 2. A duty paid by shipowners for the use of a port; a toll for anchoring. [Cases: Shipping (::::>7.) ancient, adj. Evidence. (l4c) Having existed for a long time without interruption, usu. at least 20 to 30 years .• Ancient items are usu. presumed to be authentic even if proof of

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and other good and valuable consideration

authenticity cannot be made. Fed. R. Evid. 901(b)(8). [Cases: Evidence ancient, n. See ANCIENTS. ancient demesne. See DEMESNE. ancient document. See DOCUMENT. ancient fact. See FACT. ancient house. See HOUSE. ancient law. The law of antiquity, considered esp. either from an anthropological standpoint or from the stand­ point of tracing precursors to modern law. "Ancient law uniformly refuses to dispense with a single gesture, however grotesque; with a single syllable, however its meaning may have been forgotten; with a single witness, however superfluous may be his testimony. The entire solemnities must be scrupulously completed by persons legally entitled to take part in them, or else the conveyance is nUll, and the seller is re-established in the rights of which he had vainly attempted to divest himself." Henry S. Maine, Ancient Law 225-26 (1 7th ed. 1901).

ancient-lights doctrine. The common-law principle by which a landowner acquired, after 20 years ofuninter­ rupted use, an easement preventing a neighbor from building an obstruction that blocks light from passing through the landowner's window.• The window (or other opening) is termed an ancient light. This doctrine has rarely been applied in the United States. - Also termed ancient-windows doctrine. [Cases: Easements "[AJ notice 'Ancient lights,' which is often seen affixed to the wall of a building, only denotes a claim by or on behalf of the owner that he has acquired, by prescription or otherwise, a right to a reasonable amount of light, free from interruption, over adjoining land: but it must not be supposed that such a notice is necessary in order to protect a legal right." 2 Stephen's Commentaries on the Laws of Eng/and 347 (Crispin Warmington ed., 21st ed. 1950). "Under the English doctrine of ancient lights, which has been soundly repudiated in this country, if a landowner had received sunlight across adjoining property for a specified period of time, the landowner was entitled to continue to receive unobstructed access to sunlight across the adjoin­ ing property; the landowner acquired a negative prescrip­ tive easement and could prevent the adjoining landowner from obstructing access to light." 1 Am. Jur. 2d Adjoining Landowners § 90, at 889 (1994).

ancient readings. Hist. Lectures on ancient English statutes, formerly having substantial legal authority. ancient rent. Hist. The rent reserved at the time the lease is made, if the estate was not then under lease. ancients. Hist. Certain members ofseniority in the Inns of Court and Chancery.• In Gray's Inn, the society consisted ofbenchers, ancients, barristers, and students under the bar, with the ancients being the oldest bar­ risters. In the Middle Temple, those who passed the readings were termed ancients. 'The Inns of Chancery consisted of both ancients and students or clerks. ­ Also termed (in singular) ancient. ancient serjeant. Hist. English law. The eldest of the Crown's serjeants. - The last serjeant to hold this office died in 1866. ancient wall. See WALL.

ancientwaterconrse. See WATERCOURSE. ancient-windows doctrine. See ANCIENT-LIGHTS DOC­ TRINE.

ancient writing. See ancient document under

DOCU­

MENT.

ancilla (an-sil-;:I), n. [Latin] Hist. A female auxiliary or assistant. ancillary (an-s;:I-ler-ee), adj. (17c) Supplementary; sub­ ordinate . ancillarity (an-s;:I-Ia[iJ r-;:I-tee), n.

ancillary administration. See ADMINISTRATION. ancillary administrator. See ADMINISTRATOR (2). ancillary attachment. See ATTACHMENT (3). ancillary bill. See ancillary suit under SUIT. ancillary claim. See CLAIM (4). ancillary guardianship. See GUARDIANSHIP. ancillary jurisdiction. See JURISDICTION. ancillary legislation. See LEGISLATION. ancillary letters testamentary. See LETTERS TESTAMEN­ TARY.

ancillary proceeding. See ancillary suit under SUIT. ancillary process. See ancillary suit under SUIT. ancillary receiver. See RECEIVER. ancillary receivership. See RECEIVERSHIP. ancillary suit. See SUIT. ancillary to priority. Patents. (Of a legal issue) so logi­ cally related to the issue of priority of invention that it cannot be separated from the issue of priority.• The question whether an issue is ancillary to priority was once used to challenge the jurisdiction of the U.S. Patent and Trademark Office, but the Board of Patent Appeals and Interferences now has explicit jurisdiction over ancillary issues. [Cases: Patents (;:::>90(1).] ancipitis usus. See conditional contraband under CONTRABAND.

Anders brief. See BRIEF. and his heirs. A term of art formerly required to transfer complete title (a fee simple absolute) to real estate .• This phrase originated in the translation of a Law French phrase used in medieval grants (a lui et a ses heritiers pour toujours "to him and his heirs forever"). See FEE SIMPLE.

"The development reached its culmination when the words 'and his heirs' in a transfer were thought to give full dura­ tional ownership to the immediate transferee and no own­ ership whatever to his heirs. This notion was expressed in the statement that the words 'and his heirs' are words of limitation and not words of purchase. They indicate the durational character of an estate, not its taker." Thomas F. Bergin & Paul G. Haskell, Preface to Estates in Land and Future Interests 93~94 (2d ed. 1984).

and other good and valuable consideration. See other consideration under CONSIDERATION.

androlepsy

androlepsy (an-dra-Iep-see). [fro Greek "seizure ofmen"] Hist. The taking by one nation of citizens or subjects of another nation either in reprisal or to enforce some claim (as to surrender or punish a fugitive). - Also termed androlepsia (an-dra-Iep-see-a). anecius (a-nee-shee-as), n. [Law Latin] Hist. The eldest; the firstborn; the senior, as contrasted with puisne ("the younger"). angaria (ang-gair-ee-a). [Greek] 1. ANGARY. 2. Roman law. (ital.) A compulsory service consisting in the trans­ port of goods or persons for the imperial post; a public Pony Express rider. 3. Hist. A service exacted by a lord beyond what is due. PI. angariae. angary (ang-gd-ree). Int'llaw. A country's right, in war or other urgent circumstances, to seize - for tempo­ rary use - neutral merchant ships in its inland or terri­ torial waters as well as aircraft within its territory, with full indemnity by the country. - Also termed right of angary; jus angariae; angaria. "In many respects the content and scope of the right of angary remain unclear and there is little evidence of State practice on several controversial questions. In practice, the right has been exercised mainly in wartime. Nevertheless, several writers consider it to be applicable in times of peace and in cases of absolute necessity, such as the evacuation of the population in the event of a national emergency." Rainer Lagoni, "Angary, Right of," in 1 Encvclopedia of Public International Law (1992).

angel. Mergers & acquisitions. An investor who infuses enough cash to close a deal or who comes in at the last minute to save a deal that otherwise would not close. angel investor. See INVESTOR. Anglice (ang-gla-see), adv. [French] In English. - This term formerly appeared in pleadings to Signal an English translation or restatement of a previous Latin word or phrase <panis, Anglice, bread>. Anglo-American common law. See American common law under COMMON LAW (2). Anglo-Saxon law. 1he body of royal decrees and cus­ tomary laws developed by the Germanic peoples who dominated England from the 5th century to 1066. anhlote, n. Hist. A Single tribute or tax paid according to custom, such as scot and lot. See SCOT AND LOT. aniente (an-ee-cmt or an-ee-ent), adj. [Law French] (Of a law, etc.) having no force or effect; void. - Also spelled anient. - Also termed aniens. animal. Any living creature other than a human being. Also termed creature. animalferae naturae. See wild animal. animal mansuetae naturae. See domestic animal. dangerous animal. An animal that has harmed or has threatened to harm a person or another animal. domestic animal. 1. An animal that is customarily devoted to the service of humankind at the time and in the place where it is helped. See DOMITAE NATURAE; MANSUETAE NATURAE. 2. Any animal that is statuto­

102

rHy so deSignated. - Also termed animal mansuetae naturae. [Cases: Animals (:::;:> 1.5(3).] domesticated animal. 1. A feral animal that has been tamed. 2. An animal that has customarily lived peace­ ably with people, such as farm animals and pets. See DOMITAE NATURAE. feral animal. A domestic animal that has returned to a wild state. - Feral animals, unlike others of their species, are usu. unsocialized to people. vicious animal.!. An animal that has shown itself to be dangerous to humans. 2. Loosely, one belonging to a breed or species that is known or reputed to be dangerous. - A vicious animal may be domestic, feral, or wild. See VICIOUS PROPENSITY. [Cases: Animals (:::;:>66.2,66.5(2).] wild animal. 1. An animal that, as a matter ofcommon knowledge, are naturally untamable, unpredictable, dangerous, or mischievous. See FERAE NATURAE. 2. Any animal not statutorily designated as a domestic animal. - Also termed wild creature; animal ferae naturae. [Cases: Animals (:::;:> 1.5(2).] "Wild creatures, such as game, are part of the land and pass with it, though it cannot be said that they are within the ownership of any particular person. Wild creatures which have been tamed belong to the person who has tamed them, and animals too young to escape belong to the owner ofthe land on which they are, but in each case the owner has only a qualified property in them, for the moment they gain or regain their natural liberty the owner­ ship is lost." G.c. Cheshire, Modern Law of Real Property 118 (3d ed. 1933).

Animal and Plant Health Inspection Service. An agency in the U.S. Department of Agriculture responsible for controlling or eliminating pests and plant diseases by regulating the shipment of agricultural products within the United States - Established in 1977, some of its functions were transferred to the U.S. Department of Homeland Security in 2003. Abbr. APHIS. [Cases: Agriculture (:::;:>9.] animal ferae naturae. See wild animal under ANIMAL. animal law, n. lhe field oflaw dealing with vertebrates other than humans. - The field cuts across many tra­ ditional doctrinal areas (e.g., contracts, torts, admin­ istrative law) as well as jurisprudence. Topics include wildlife-management law, laws concerning treatment oflaboratory animals, and laws relating to companion animals. [Cases: Animals (:::;:>3.5(1).] animal mansuetae naturae. See domesticated animal under ANIMAL. animo (an-d-moh). [Latin] See ANIMUS (2). animo et corpore (an-tl-moh et kor-ptl-ree), adv. [Latin] By the mind and by the body; by the intention and by the physical act of control <possession is acquired animo et corpore>. animo etfacto (an-tl-moh et fak-toh). [Latin] Hist. By act and intention. "Thus, for example, in acquiring a domicile, mere residence is not suffiCient, if there be not the intention to acquire

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animus it, as domicile can only be acquired animo et facto." John Trayner, Trayner's Latin Maxims 21 (4th ed. 1894).

animo felonico (an-<J-moh f<J-lon-<J-koh), adv. [Latin] With felonious intent; with the intention to commit a felony. animus (an+m<Js). [Latin] (1816) 1. III will; animosity. class-based animus. A prejudicial disposition toward a discernible, usu. constitutionally protected, group of persons.• A class-based animus is an essential element ofa civil-rights conspiracy case. [Cases: Civil Rights C:=> 1033(1), 1137; Conspiracy C:=>7.5(1).] 2. Intention.• All the following Latin "animus" phrases have analogous adverbial forms beginning with "animo" (the definition merely needing "with" at the outset). For example, animo furandi means "with the intention to steal," animo testandi means "with testa­ mentary intention," etc. animus adimendi (an-<J-m<Js ad-i-men-dr). [Latin] The intention to adeem. animus belligerendi (an-<J-m<Js b<J-lij-<J-ren-dr). [Latin] The intention to wage war. animus cancellandi (an-<J-m<Js kan-s<J-Ian-dr). [Latin] The intention to cancel. • This phrase usu. refers to a will. animus capiendi (an-<J-m<Js kap-ee-en-dr). [Latin] The intention to take or capture. animus contrahentium (an-<J-m<Js kon-tr<J-hen­ shee-<Jm). [Latin] The intention of the contracting parties. animus dedicandi (an-<J-m<Js ded-<J-kan-dr). [Latin] The intention to donate or dedicate. animus defamandi (an-<J-m<Js def-<J-man-dr). [Latin] The intention to defame. [Cases: Libel and Slander C:=>2.] animus derelinquendi (an-<J-m<Js dee-rel-ing-kwen­ dr). [Latin] The intention to abandon. animus deserendi (an-<J-m<Js des- 15.]

animus et factum (an-<J-m<Js et fak-t<Jm). [Latin "mind and deed"] The intention and the deed.• This phrase can refer to a person's intent to reside in a given country permanently or for an indefinite period. animus felonicus (an-<J-m<Js fe-loh-ni-k 170.] animus signandi (an-a-mas sig-nan-dI). [Latin] The intention to sign. [Cases: Wills ()::::>n.] animus testandi (an-a-mas tes-tan-dI). [Latin] Testa­ mentary intention. animus ulciscendi (an-a-mds al-si-sen-dI). [Latin] The intention to take revenge. Annapolis. See UNITED STATES NAVAL ACADEMY. annates (an-ayts or an-its), n. [fro Law Latin annata] See FIRST FRUITS (2). annats (an-ats). See FIRST FRUITS (2). annex, n. (l6c) Something that is attached, such as a document to a report or an addition to a bUilding. annexation, n. (17c) 1. The act of attaching; the state of being attached. 2. Property. The point at which a fixture becomes a part of the realty to which it is attached. [Cases: Fixtures ()::::>6.] 3. A formal act by which a nation, state, or municipality incorporates land within its dominion. _ In international law, the usual formali­ ties of announcing annexation involve having specially commissioned officers hoist the national flag and read a proclamation. [Cases: Municipal Corporations 29.] 4. The annexed land itself. Cf. ACCESSION (5). ­ annex, vb. cherry-stem annexation. 1. Annexed land that resem­ bles (on a map) a cherry because the annexed ter­ ritory the cherry - is not contiguous to the acquiring municipality, and the narrow corridor of annexed land leading to the targeted area resembles a stem. [Cases: Municipal Corporations ()::::>29(4).] 2. The process of annexing land with this configu­ ration. anniversary date. Insurance. The annually recurring date of the initial issuance of a policy. Cf. POLICY YEAR. ann, jour, et wast (an, zhoor, ay wayst). [Law French] See YEAR, DAY, AND WASTE. anno ante Christum (an-oh an-tee kris-tam), adv. [Latin] In the year before Christ. Abbr. A.A.C.

nay-tam), adv. [Latin] In the year before the birth of Christ. Abbr. A.A.e.N. Anno Domini (an-oh dom-a-m or -nee). [Latin "in the year of the Lord"] Since the supposed year in which Jesus Christ was born; ofthe current era .­ Abbr. A.D. - Also termed in the year ofOur Lord. Cf C.E. annonae civiles (a-noh-nee sa-vI-leez), n. [Latin] Rist. Yearly rents issuing out ofparticular lands and payable to certain monasteries. an no orbis conditi (an-oh or-bis kon-di-tI), n. [Latin] The year of the creation of the world. - Abbr. AOe. Anno Regni (an-oh reg-m). [Latin) In the year of the reign. - A.R.V.R. 22, for example, is an abbreviated reference to Anno Regni Victoriae Reginae vicesimo secundo ("in the twenty-second year of the reign of Queen Victoria"). - Abbr. A.R. annotatio (an-oh-tay-shee-oh). [Latin] RESCRIPT (3). annotation (an-a-tay-shan), n. (lSc) 1. A brief summary of the facts and decision in a case, esp. one involving statutory interpretation. 2. A note that explains or criti­ cizes a source oflaw, usu. a case. - Annotations appear, for example, in the United States Code Annotated (USCA). 3. A volume containing such explanatory or critical notes. 4. RESCRIPT (3). Cf. NOTE (2). annotate (an-a-tayt), vb. annotative (an-a-tay-tiv), adj. annotator (an-a-tay-tar), n. "One of the most important classes of Search Books is those included in the category of Annotations. They are important and valuable. in that they often purport to give. in very condensed form. some indication of the law, deduced from the cases or statutes. as well as to point out where similar cases can be found: William M. Lile et aI., Brief Making and the Use of Law Books 84 (3d ed. 1914).

announce, vb. To make publicly known; to proclaim formally . annoyance. See NUISANCE (1). annual account. See intermediate account under ACCOUNT. annual crops. See CROPS. annual depreciation. See DEPRECIATION. annual exclusion. See EXCLUSION (1). annual gift-tax exclusion. See annual exclusion under EXCI.USION. annual meeting. See MEETING. annual message. See MESSAGE. annual percentage rate. See INTEREST RATE. annual permit. A permit, required by some states, that must be paid each year by a corporation that does business in the state. - In some states, the permit fee is set according to the corporation's capitalization. annual report. A yearly corporate financial report for shareholders and other interested parties. - The Securities Exchange Act of 1934 requires registered

annuity

105

corporations to file an annual report on the SEC's Form lO-K. An annual report includes a balance sheet, income statement, statement of changes in financial position, reconciliation of changes in owners' equity accounts, a summary of significant accounting prin­ ciples, other explanatory notes, the auditor's report, and comments from management about prospects for the coming year. Also termed annual statement; financial report. annual value. See VALUE (2). annua pensione. See DE ANNUA PENSIONE. annuitant ( 1; Marriage 56.] 3. A rescission. See RESCIND (3). - annul (a-nal), vb. annulment of adoption. See ABROGATION OF ADOPTION. annulment of judgment. A retroactive obliteration of a judicial decision, haVing the effect of restoring the parties to their pretrial positions. - Types ofannulment include reversal and vacation. See REVERSE; VACATE (1). annum luctus (an-am lak-tas), n. [Latin "year of mourning"] Roman law. The year following the death of a married man during which his widow could not remarry, because of the confusion that would ensue in determining the parentage ofa child born a few months after a second marriage within that year. - Also some­ times termed year in mourning. annus (an- 1343.] antistructuring statute. A federal law that forbids struc­ turing monetary transactions with the intent to evade federal reporting requirements. [Cases: United States antisubrogation rule (an-tee-s"b-roh-gay-sh"n). Insur­ ance. The principle that an insurance carrier has no right of subrogation - that is, no right to assert a claim on behalf of the insured or for payments made under the policy against its own insured for the risk covered by the policy. See SUBROGATION. [Cases: Insur­ ance C;:::>3SlO.] antisuit, adj. Of or relating to a court order forbidding the defendant in a lawsuit, pending or resolved, from filing a similar action against the same party in another jurisdiction. _ The purpose of an antisuit order is usu. to prevent forum-shopping. See RES JUDICATA; COL­ LATERAL ESTOPPEL. [Cases: Courts C;:::>S16; Injunction 32,33.] antisuit injunction. See INJUNCTION. antitakeover measure. A provision in a company's organizational documents intended to discourage

apocrisarius

111

unwanted takeover bids by setting forth the actions the company may take, as a target, to avoid an invol­ untary takeover. antitakeover statute. A state law deSigned to protect companies based in the state from hostile takeovers. antithetarius (an-tith-a-tair-ee-as). [Law Latin] Hist. An accused person who asserts that his or her accuser is guilty of the crime. Cf. APPROVER (1). Antitrust Civil Process Act. A federal law prescrib­ ing the procedures for an antitrust action by way of a petition in U.S. District Court. 15 USCA §§ 1311 et seq. Antitrust Guidelines for the Licensing of Intellectual Property. A set of criteria, jOintly issued by the Anti­ trust Division of the U.S. Justice Department and the FTC, that those agencies apply in deciding whether to initiate an investigation or enforcement action as a result of restrictions in patent, copyright, trade-secret, and know-how licenses. 4 Trade Reg. Rep. (CCH) ~ 13,132 (April 6, 1995). antitrust law. 1. The body oflaw deSigned to protect trade and commerce from restraints, monopolies, price-fix­ ing, and price discrimination .• The principal federal antitrust laws are the Sherman Act (15 USCA §§ 1-7) and the Clayton Act (I5 USCA §§ 12-27). "As legislative history and case law both disclose, the general objective of the antitrust laws is the maintenance of competition. Competition per se thus becomes a goal of the legal order. Yet, competition is not a concept which defines itself; notions about the desirability of competition may shape judgments about how the law should apply, at least at its indistinct edges." Lawrence A. Sullivan, Handbook of the Law of Antitrust § 5, at 20 (1977).

2. (cap.) SHERMAN ANTITRUST ACT. antlike persistency. (1924) Patents. Slang. The steady tenacity of a patent practitioner or applicant who tries to wear down the U.S. Patent and Trademark Office by prosecuting patent claims in the hope that the Office will eventually relent.• Judge Learned Hand coined this pejorative expression in Lyon v. Boh, 1 F.2d 48, 49-50 (S.D.N.Y. 1924). AO. abbr. ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS. AOC. abbr. 1. ANNO ORBIS CONDITL 2. And other con­ sideration. See other consideration under CONSIDER­ ATION. AOD. abbr. ACTION ON DECISION. AOGI. abbr. See adjusted ordinary gross income under INCOME. AOUSC. abbr. ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS. APA. abbr. 1. ADMINISTRATIVE PROCEDURE ACT. 2. ADVANCE PRICING AGREEMENT. a pais (ah payor pays). [Law French] Hist. At or to the country; at issue. a pari (ay par-I). [Law Latin] Hist. Equally; in like manner.

apartheid (a-pahrt-hayt or a-pahr-tIt). Racial segrega­ tion; speci£, a comprehensive governmental policy of racial discrimination and segregation, as it was prac­ ticed in South Africa. apertum breve. See BREVE. apertum factum (a-par-tam fak-t3m). [Latin "open deed"] An overt act. apertura testamenti (ap-ar-t[yJoor-a tes-ta-men-tI). [Latin "opening ofthe testament"] Roman law. A proce­ dure for proving a will by which the witnesses acknowl­ edged their signatures and seal before a magistrate and the will was opened and publicly read. apex deposition. See DEPOSITION. apex juris (ay-peks joor-is). [Latin "summit oflaw"] An extreme point or subtlety oflaw, such as a merely tech­ nical objection in pleading or an extreme interpretation of a doctrine. Cf. APICES LITIGANDI. apex rule. Mining law. The principle that a vein of ore may be mined if it extends beyond the vertical bound­ aries of the surface claim on which the vein apexes. ­ Also termed extra lateral right. Cf. INTRALIMINAL RIGHT. [Cases: Mines and Minerals (;:;>30.] APH. abbr. AMERICAN PRINTING HOUSE FOR THE BLIND. APHIS. abbr. ANIMAL AND PLANT HEALTH INSPECTION SERVICE. apices litigandi (ay-pi-seez lit-i-gan-dI). [Law Latin] Extremely fine points (or subtleties) of litigation. Cf. APEX rURIS. APJ. abbr. See administrative patent judge under rUDGE. apocha (ap-a-ka). Roman & civil law. A receipt acknowl­ edging payment. • An apocha discharges only the obli­ gation represented by the payment, in contrast to an acceptilation, which discharges an entire debt. Also spelled apoca. Cf. ACCEPTILATION; ANTAPOCHA. apochae oneratoriae (ap-a-kee oh-nar-ay-tor-ee-ee). [Law Latin "cargo receipt"] Hist. Bills oflading. apocha trium annorum (ap-a-ka tn-am a-nor-3m). [Latin "receipt for three years"] Scots law. Hist. Receipts for three consecutive periodic payments, the produc­ tion of which gave rise to a presumption that prior installments had been properly paid. "The production by the debtor of receipts for the last three consecutive installments of a termly payment, such as feu· duty, rent, wages or interest, raises a presumption, the apocha trium annorum, rebuttable by parol eVidence, that all prior instalments have been duly paid. The same infer· ence is not justified by one receipt, even for three or more instalments. Nor do receipts for three instalments justify an inference that a bill, granted for earlier arrears, has been paid." 2 David M. Walker, Principles ofScottish Private Law 143 (4th ed. 1988).

apocrisarius (a-pok-ri-sair-ee-as), n. [Latin] Hist. Eccles. law. 1. An ambassador; a messenger, such as a Pope's legate. 2. One who answers for another; esp., an officer who presented church matters to the emperor and conveyed the answers to the petitioners. 3. One

who, upon consultation, gives advice in ecclesiastical matters. - Also termed responsalis; a responsis; secre­ tarius; consiliarius; referendarius; a consiliis. apographa (a-pog-ra-fa), n. pl. [fro Greek apographein "to copy"]l. Civil law. An examination and enumera­ tion ofthings possessed; an inventory. 2. Copies; tran­ scripts. apographal, adj. apostasy (a-pos-ta-see). 1. Hist. A crime against religion consisting in the total renunciation of Christianity by one who had preViously embraced it. 2. Eccles. law. Abandonment of religiOUS vows without dispensa­ tion. apostata capiendo. See DE APOSTATA CAPIENDO. apostate (a-pos-tayt). A person who has forsaken religion or a particular religion. - Also termed (archaically) apostata (ap-a-stay-ta). a posteriori Cay pos-teer-ee-or-I or ah pos-teer-ee-or-ee), adv. [Latin "from what comes after"] (16c) Inductively; from the particular to the general, or from known effects to their inferred causes . Cf. APRIORI. a posteriori, adj. apostille (a-pos-til). [French "postscript, footnote"] Int'l law. A marginal note or observation; esp., a standard certification provided under the Hague Convention for authenticating documents used in foreign countries. ­ Also spelled apostil. See CERTIFICATE OF AUTHORITY (1).

apostle (a-pos-al), n. Civil & maritime law. L A letter sent from a trial court to an appellate court, stating the case on appeal. 2. The record or papers sent up on appeal. ­ Also termed apostoli. 3. DIMISSORY LETTERS. apostolus (a-pos-ta-l460.j direct appeal. An appeal from a trial court's decision directly fo the jurisdiction's highest court, thus bypassing review by an intermediate appellate court. • Such an appeal may be authorized, for example, when the case involves the constitutionality of a state law. duplicitous appeal. An appeal from two separate judg­ ments, from a judgment and an order, or from two orders. [Cases; Appeal and Error (;:::;0418.] federal appeal. An appeal to a federal appellate court usu. from (1) a federal district court to a United States circuit court, (2) a United States circuit court to the Supreme Court of the United States, or (3) a state supreme court to the Supreme Court of the United States. [Cases; Federal Courts C=445, 541.] frivolous appeal. (18c) An appeal having no legal basis, usu. filed for delay to induce a judgment creditor to settle or to avoid payment of a judgment.• Federal Rule of Appellate Procedure 38 provides for the award of damages and costs if the appellate court deter­ mines that an appeal is frivolous. Fed. R. App. P. 38. [Cases; Costs C==>260; Federal Civil Procedure 2839,2840.] interlocutory appeal. An appeal that occurs before the trial court's final ruling on the entire case. 28 USCA § 1292(b).• Some interlocutory appeals involve legal points necessary to the determination of the case, while others involve collateral orders that are wholly separate from the merits of the action. See INTERLOC­ UTORY APPEALS FINAL-JUDGMENT RULE. [Cases: Appeal and Error Federal Courts C=::>572.L] judgment-roll appeal. An appeal based only on the pleadings, the findings ofthe court, and the judgment. [Cases: Appeal and Error limited appeal. An appeal from only certain portions of a decision, usu. only the adverse or unfavorable portions. precautionary appeal. See protective appeal. protective appeal. A precautionary appeal filed by counsel when the client might otherwise lose an effective right to appeal. • A protective appeal is typically filed when (1) a client's motion to intervene has been denied, and the trial court is entering other orders that the client wants to appeal, (2) counsel has doubts about where to appeal, (3) counsel has doubts about the length of the appeal period, or (4) the client

must preserve uncertain or contingent rights. Also termed precautionary appeal. state appeal. An appeal to a state appellate court, either from a court of first instance to any intermediate appellate court or from a lower court to the highest court in the state-court system. [Cases; Appeal and L] Error suspensive appeal. An appeal that stays the execution ofthe underlying judgment. [Cases; Appeal and Error 460.] 2. Hist. The charging of someone with a crime; speci£., an accusation of a crime, esp. treason or a felony. appeal, vb. 1. To seek review (from a lower court's decision) by a higher court . 2. Hist. To charge with a crime; accuse. ­ appealability, n. appealable decision. See DECISION.

appeal as of right. See appeal by right under APPEAL.

appeal bond. See BOND (2). appeal brief. See BRIEF. appeal by leave. See appeal by application under APPEAL.

appeal by right. See APPEAL. appeal court. See appellate court under COURT. appeal de novo. See APPEAL. appealer. Archaic. APPELLANT. appeal from the chair. Parliamentary law. An assembly member's formal objection to a decision made by the chair.• If the appeal is seconded, the chair must state what question was answered and explain the reasons for the chair's decision, then allow the members present to vote in support of or against that decision. appeal in forma pauperis. See APPEAL. appeal of felony. Hist. A procedure by which a person accused another of a crime, demanded proof of inno­ cence by wager of battle, or informed against an accom­ plice. Also termed appellum de felonia. appeal of right. See appeal by right under APPEAL. appeals council. A commission that hears appeals of rulings by administrative-law judges in social-security matters. [Cases; Welfare (~8.15, 142.5.J appeals court. See appellate court under COURT. appearance, n. (l4c) Procedure. A coming into court as a party or interested person, or as a lawyer on behalf of a party or interested person; esp., a defendant's act of taking part in a lawsuit, whether by formally partici­ pating in it or by an answer, demurrer, or motion, or by taking postjudgment steps in the lawsuit in either the trial court or an appellate court. [Cases: Appear­ ance Federal Civil ProcedureC=::>561-574.] appear, vb. 'The English courts did not, until modern times, daimjuris· diction over the person of the defendant merely by service of summons upon him. It was deemed necessary to resort to further process by attachment of his property and arrest

of his person to compel 'appearance,' which is not mere presence in court, but some act by which a person who is sued submits himself to the authority and jurisdiction of the court. Any steps in the action, such as giving bail upon arrest, operated as an appearance or submission." Benjamin j. Shipman, Handbook of Common-Law Pleading § 5, at 24 (Henry Winthrop Ballantine ed., 3d ed. 1923). 'The term 'appearance' is used particularly to signify or designate the overt act bywhich one against whom suit has been commenced submits himself to the court's jurisdic­ tion, although in a broader sense it embraces the act of either plaintiff or defendant in coming into court .... An appearance may be expressly made by formal written or oral declaration, or record entry, or it may be implied from some act done with the intention of appearing and submit­ ting to the court's jurisdiction." 4 Am. Jur. 2d Appearance § I, at 620 (1995).

appearance de bene esse. See special appearance. appearance pro hac vice (proh hak VI-see or proh hahk vee-chay). [Latin) An appearance made by an out-of­ state lawyer for one particular case, usu. by leave of court. • For more on the pronunciation of this term, see PRO HAC VICE. [Cases: Attorney and Client 10.] , appearance under protest. English & Canadian law. See special appearance. compulsory appearance. An appearance by one who is required to appear by having been served with process_ [Cases: Appearance (;=> 1.] general appearance. A general-purpose appearance that waives a party's ability later to dispute the court's authority to enter a binding judgment against him or her. [Cases: Appearance C=.8-1O, 16-25; Federal Civil Procedure (;:=:0566.] initial appearance. A criminal defendant's first appear­ ance in court to hear the charges read, to be advised of his or her rights, and to have bail determined .• The initial appearance is usu. required by statute to occur without undue delay. In a misdemeanor case, the initial appearance may be combined with the arraignment. See ARRAIGNMENT. [Cases: Arrest 70; Criminal Law (;=>261-264.] limited appearance. See special appearance. special appearance. 1. A defendant's pleading that either claims that the court lacks personal jurisdic­ tion over the defendant or objects to improper service of process. 2. A defendant's showing up in court for the sole purpose of contesting the court's assertion of personal jurisdiction over the defendant. • Special appearances have been abolished in federal court. Fed. R. Civ. P. 12(b). Also termed limited appear­ ance; appearance de bene esse; (in English & Canadian law) appearance under protest. [Cases: Appearance (;=>9(2, 3); Federal Civil Procedure (;=>565.] voluntary appearance. An appearance entered by a party's own will, without the service of process. [Cases: Appearance appearance bond. See bail bond under BOND (2). appearance date. See answer day under DAY. appearance day. See answer day under DAY.

appearance de bene esse. See speCial appearance under APPEARANCE.

appearance docket. See DOCKET (I). appearance doctrine. (1972) In the law of self-defense, the rule that a defendant's use of force is justified if the defendant reasonably believed it to be justified. [Cases: Assault and Battery 50, 107.] appellatio (ap- 63.4(1).] unlawful arrest. The taking of a person into custody either without a valid warrant or without probable cause to believe that the person has committed a crime. Cf. lawful arrest. [Cases: Arrest C=>63.4(0.5), 65.] warranted arrest. (1950) An arrest made under author­ ity of a warrant. [Cases: Arrest (;::::)65.] warrantless arrest. (l958) A legal arrest, without a warrant, based on probable cause of a felony, or for a misdemeanor committed in a police officer's presence. - Also termed arrest without a warrant. See WARRANT. [Cases: ArrestC=>62.] wholesale arrest. See dragnet arrest.

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3. lvIaritime law. The taking of a ship and sometimes its cargo into custody by virtue of a court's warrant. [Cases: Admiralty 48.) arrestable offense. See OFFENSE (1). arrestandis bonis ne dissipentur. See DE ARRESTANDIS BONIS NE DISSIPENTUR.

arrestando ipsum qui pecuniam recepit. See DE ARRE­ STANDO IPSUM QUI PECUNIAM RECEPIT.

arrestatio (ar-a-stay-shee-oh), n. [Law Latin) Hist. An arrest. arrest by warrant. See lawful arrest under ARREST. arrestee. (1844) 1. A person who has been taken into custody by legal authority; a person who has been arrested. 2. Scots law. One who holds property attached by arrestment. arrester. One who arrests. - Also spelled arrestor. arrest in execution. See arrest on final process under ARREST.

arrest in quarters. See ARREST. arrestment. 1. 'The arrest of a person or of personal effects. 2. Scots law. The taking or attachment of property belonging to another person but in the pos­ session of a third party, either to obtain security or to found jurisdiction. - 'The process of attachment is similar to garnishment: the property holder is ordered to withhold the property from the debtor. The court may order that the property be transferred to the creditor. arrestment in execution. Postjudgment arrestment to preserve property on which to collect the judgment. arrestment in security. See arrestment on the depen­ dence. arrestment on the dependence. Prejudgment arrest­ ment to secure payment of a judgment against a debtor who is likely to leave the country to escape the creditor. - The arrestment may be ordered even though the creditor has not begun an action on the debt or an action is still pending. - Also termed arrestment in security. arrestment to found jurisdiction. Arrestment for the purpose of conferring legitimate legal authority on a court, esp. when the debtor is a foreigner who is not present in and does not own land in a given place. 3. The action of checking or stopping something. arresto facto super bonis mercatorum alienigenorum (. 2. Roman & civil law. The adoption of an adult; specif., the adoption of a person sui juris, as a result of which the adoptee loses independence and comes within the paternal power (patria potestas) of the adopting father. [Cases: Adoption (;::'5.]- arrogate, vb. ARS. abbr. AGRICULTURAL RESEARCH SERVICE. arser in ie main (ahr-say an IJ man or an l5; Corporations (;::::0 18.] Articles of Confederation. The instrument that governed the association of the 13 original states from March 1, 1781 until the adoption of the U.S. Constitution (Sep­ tember 17, 1787).• They were prepared by the Conti­ nental Congress, submitted to the states in 1777, and later ratified by representatives ofthe states empowered by their respective legislatures for that purpose. articles of dissolution. (1802) A document that a dis­ solving corporation must file with the appropriate gov­ ernmental agency, usu. the secretary of state, after the corporation has settled all its debts and distributed all its assets. [Cases: Corporations 274.5; Children Out-of-Wed­ lock C=> 15; Parent and Child (:=:;20.] artificial insemination by donor. Artificial insemi­ nation in which the semen donor is someone other than the recipient's husband. - Abbr. AID. - Also termed heterologous artificial insemination; exoga­ mous insemination. [Cases: Child CustodyC='274.5; Parent and Child C=>20.] artificial insemination by husband. Artificial insemi­ nation in which the semen donor is the recipient's husband. ~ Abbr. AIH. - Also termed homologous insemination; endogenous insemination. [Cases: Child Custody C=>274.5; Parent and Child C:=>20.] endogenous insemination. See artificial insemination by husband. exogamous insemination. See artificial insemination by donor. heterologous artificial insemination. See artificial insemination by donor. homologous artificial insemination. See artificial insemination by husband. artificial person. See PERSON (3). artificial presumption. See presumption of law under PRESUMPTION.

artificial succession. See SUCCESSION (4). artificial watercourse. See WATERCOURSE. artisan. 1. An artist; esp., a skilled crafter. 2. Patents. A person ofordinary skill in an art, for purposes ofdeter­ mining whether a patent application meets the enable­ ment requirement of 35 USCA § 112.• In patent-law terms, the disclosure in the application must teach the artisan how to practice the invention. - Also termed skilled artisan. artisan's lien. See mechanic's lien under LIEN. artistic license. See LICENSE. artistic work. See WORK (2). art unit. Patents. A group ofpatent examiners in the U.S. Patent and Trademark Office specializing in a particu­ lar field oftechnology.• Each art unit is led by a senior patent examiner. a rubro ad nigrum (ay roo-broh ad DI-grdm). [Latin] From the red to the black i.e., from the title of a statute (formerly often printed in red letters) to its body (often printed in black letters). as (as), n. [Latin]l. Roman law. A pound weight or a coin weighing a pound, divisible into 12 parts, called unciae. • As and the multiples of its unciae were used to denote interest rates. See UNCIA. 2. Roman & civil law. A whole inheritance; the whole of an asset. PI. asses. as-applied challenge. See CHALLENGE (1). ASBCA. abbr. See ARMED SERVICES BOARD OF CONTRACT APPEALS.

ASCAP. abbr.

AMERICAN SOCIETY OF COMPOSERS, AUTHORS AND PUBLISHERS.

ascendant (d-sen-ddnt), n. (l7c) One who precedes in lineage, such as a parent or grandparent. - Also termed ancestor. Cf. DESCENDANT. ascendant, adj. collateral ascendant. (1832) Loosely, an aunt, uncle, or other relative who is not strictly an ancestor. - Also termed collateral ancestor. lineal ascendant. A blood relative in the direct line of ascent; ancestor.• Parents, grandparents, and great­ grandparents are lineal ascendants. ascent. (l7c) The passing of an estate upwards to an heir in the ascending line. Cf. DESCENT. ascripticius. See ADSCRIPTITIUS. ascriptitius (as-krip-tish-ee-ds), n. See ADSCRIPTITIUS. ascriptus. See ADSCRIPTUS. ASE. abbr. AMERICAN STOCK EXCHANGE. as eft'eirs. See EFFEIRS, AS. as-extracted collateral. See COLLATERAL. asexualization. See STERILIZATION. asexually reproducing plant. Patents. A plant that repro­ duces other than by seeds.• Examples ofasexual repro­ duction include cutting, grafting, and budding. Only new, distinctive, and nonobvious species of asexually reproducing plants may be protected under the Plant Patent Act. 35 USCA § 161. [Cases: Patents (:=) 14.] ASFA. abbr. ADOPTION AND SAFE FAMILIES ACT. Ashwander rules. (1953) A set ofprinciples outlining the U.S. Supreme Court's policy of deciding constitutional questions only when necessary, and of aVOiding a con­ stitutional question if the case can be decided on the basis of another issue .• These rules were outlined in Justice Brandeis's concurring opinion in Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 56 S.Ct. 466 (1936). They include the policy that the court should not decide a constitutional question in a friendly suit, should not anticipate a question of constitutional law, should not create a rule of constitutional law that is broader than that called for by the facts of the case, should not decide a constitutional issue if the case can be decided on another ground, should not rule on the constitutionality of a statute unless the plaintiff is harmed by the statute or if the plaintiff has accepted the benefits of the statute, and should not rule on the constitutionality of an act of Congress without first analyzing whether the act can be fairly construed in a way that would avoid the constitutional question. ­ Also termed Brandeis rules. [Cases: Constitutional Law C:=>975, 976, 994.] as is, adv. & adj. In the existing condition without modi­ fication .• L'nder UCC § 2-316(3)(a), a seller can disclaim all implied war­ ranties by stating that the goods are being sold "as is" or "with all faults." Generally, a sale ofproperty "as is" means that the property is sold in its existing condi­ tion, and use of the phrase as is relieves the seller from

liability for defects in that condition. Also termed with allfaults. [Cases: Contracts C= 205.30; Sales 267.] as-is warranty. See WARRANTY (2). asked price. See PRICE. asking price. See PRICE. as of right. By virtue of a legal entitlement . ASP. abbr. APPLICATION SERVICE PROVIDER. as per. (I8c) In accordance with; PER (3).• This phrase has traditionally been considered a barbarism, per being the preferred form in commercialese . But even per can be improved on . aspirin wars. Slang. A series of false-advertising lawsuits between makers of over-the-counter pain relievers in the 19805, all centering on the boundaries of compara­ tive advertiSing. asportation (as-p;lr-tay-sh;ln), n. (lSc) The act of carrying away or removing (property or a person) .• Asporta­ tion is a necessary element oflarceny. Also termed carrying away. See LARCENY. [Cases: Kidnapping 17; Larceny C= 17; Robbery C::; 10.] asport, vb. asportative, adj. ''There is no larceny unless the personal goods of another which have been taken by trespass are 'carried away,' but this technical requirement may be satisfied by a very slight movement. There must be 'asportation,' to use the word commonly found in the early cases, but the slightest start of the carrying·away movement constitutes asportation." Rollin M. Perkins & Ronald N. Boyce, Criminal Law 323 (3d ed.1982). 'To constitute larceny, there must be a taking or caption and carrying away or asportation of the property of another. There is a caption when the defendant takes possession. He takes possession when he exercises dominion and control over the property. There is an asportation when he carries away the property; any carrying away movement, however slight, is sufficient. An asportation presupposes a prior caption; therefore, there can be no asportation unless there has first been a caption." 3 Charles E. Torcia, Whar­ ton's Criminal Law§ 357, at 412-13 (15th ed. 1995).

asportavit (as-por-tay-vit). [Law Latin] He carried away. ASR. abbr. ACCOUNTING SERIES RELEASE. assailant. (16c) 1. One who physically attacks another; one who commits an assault. [Cases: Assault and Battery C=-48.] 2. One who attacks another using nonphysical means; esp., one who attacks another's position or feelings, as by criticism, argument, or abusive language. assart. Rist. 1. The act of pulling up trees and bushes in a forest to make the land arable .• 'This was a crime if done without a license. 2. A piece ofland made arable by dearing a forest. assassination, n. (17c) The act of deliberately killing someone, esp. a public figure, usu. for hire or for politi­ cal reasons. - assassinate, vb. assassin, n,

assault, n. (14c) 1. Criminal & tort law. The threat or use offorce on another that causes that person to have a rea­ sonable apprehension of imminent harmful or offensive contact; the act of putting another person in reason­ able fear or apprehension of an immediate battery by means of an act amounting to an attempt or threat to commit a battery. [Cases: Assault and Battery 48.] 2. Criminal law. An attempt to commit battery, requiring the specific intent to cause physical injury. ­ Also termed (in senses 1 and 2) simple assault; common assault. 3. Loosely, a battery. 4. Popularly, any attack. Cf. BATTERY. assault, vb. assaultive, adj. "Ordinary usage creates a certain difficulty in pinning down the meaning of 'assault.' Etymologically, the word is com­ pounded of the Latin ad + saltare, to jump at. In popular language, it has always connoted a physical attack. When we say that D assaults V, we have a mental picture of D attacking V, by striking or pushing or stabbing him. In the middle ages, however, the terms 'assault' and 'battery' were given technical meanings which they have retained ever since. It became settled that though an assault could be committed by physical contact, it did not require this, since a show of force raising an apprehension in the mind of the victim was sufficient. Also, a 'battery' did not require an actual beating; the use of any degree of force against the body would suffice. The acts of spitting on a person and kissing Without consent are both batteries." Glanville Williams, Textbook of Criminal Law 135-36 (1978). "In addition to the classic definitions of assault, some juris· dictions have used assault as a generic term to describe either assault or battery. Thus, a defendant who intention­ ally injures somebody may be convicted of assault rather than battery." Arnold H. Loewy, Criminal Law in a Nutshell 57 (2d ed. 1987).

aggravated assault. (l8c) Criminal assault accompa­ nied by circumstances that make it more severe, such as the intent to commit another crime or the intent to cause serious bodily injury, esp. by using a deadly weapon. See Model Penal Code § 211.1(2). [Cases: Assault and Battery "The common law did not include any offense known as 'aggravated assault: However, it did make provision for certain situations in this field, under other names. If, for example, the intended application of force to the person would have resulted In murder, mayhem, rape or robbery, if successful, and the scheme proceeded far enough to constitute an attempt the prosecution was for an attempt to commit the intended felony." Rollin M. Perkins & Ronald N. Boyce, Criminal Law 180 (3d ed. 1982).

assault by contact. The offense of knowingly or inten­ tionally touching another person when the actor knows or believes that the touch will offend or provoke the other person. assault purpense (;l-sawlt poor-pawn-say). [French] Hist. Premeditated assault. - Also termed assultus premeditatus (J-Sal-t;ls pree-med-J-tay-tis). "Even before the conquest, ... deliberately planned assas­ sinations came to be distinguished and put into the list of Crown pleas as forsteal. The original sense of this word was lying in wait to am bush the victi m. After the conquest this is expressed in various terms in French and Latin, but frequently takes the form of assault purpense, or assultus premeditatus. In time this yields before malitia excogi­ tata, and so introduces us to the very troublesome word 'malice'." Theodore F.T. Plucknett, A Concise History of the Common Law444 (5th ed. 1956).

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assault and battery

assault to rape. See assault with intent to commit rape. assault with a dangerous weapon. See assault with a deadly weapon. assault with a deadly weapon. (1803) An aggra­ vated assault in which the defendant, using a deadly weapon, threatens the victim with death or serious bodily injury. Also termed assault with a dangerous weapon. [Cases: Assault and Battery C:=> 56.] assault with intent. (17c) Any of several assaults that are carried out with an additional criminal purpose in mind, such as assault with intent to murder, assault with intent to rob, assault with intent to rape, and assault with intent to inflict great bodily injury. ­ These are modern statutory inventions that are often found in state criminal codes. [Cases: Homicide 725; Rape 16; Robbery C:=> 13.] assault with intent to commit rape. An assault carried out with the additional criminal purpose of raping the victim. - Also termed assault to rape. [Cases: Rape C:=> 16.] atrocious assault. An assault that causes severe wounding or maiming. [Cases: Assault and Battery attempted assault. (1870) An attempt to commit an assault; an attempted battery that has not progressed far enough to be an assault, as when a person intends to harm someone physically but is captured while or after trying to locate the intended victim in his or her place ofemployment. - Traditionally, most commen­ tators held that an attempted assault could not exist because assault was in itself an attempt to commit a crime. Many modern authorities, however, assert that an attempted assault can occur, and that it should be punishable. Also termed attempt to assault. See ATTEMPT TO ATTEMPT. [Cases: Assault and Battery :::>61.) "[I]t is apparent that reference may be made to an 'attempt to assault' without logical absurdity. There is nothing absurd in referring to an attempt to frighten, which would constitute, if successful, a criminal assault in most juris­ dictions.... It is not surprising, therefore, that there is a tendency to break away from the ancient view that there is no such offense known to the law as an attempt to commit an assault." Rollin M. Perkins & Ronald N. Boyce, Criminal Law 168 (3d ed. 1982). "By far the most interesting cases in this area are the attempted assault cases. Where assault is defined as intentionally putting another in fear of a battery, there is of course no basis for denying the possibility of an attempt. Where, however, assault is defined as an attempted battery, attempted assault looks very much like the forbidden 'attempt to attempt' a battery. For this reason some courts have held that there is no such crime as attempted assault. Other courts, however, have held that an attempted assault can exist, defining it as an attempted battery which has not progressed far enough to be an assault." Arnold H. Loewy, Criminal Law in a Nutshell 223-24 (2d ed. 1987).

civil assault. (1892) An assault considered as a tort and not as a crime. _ Although the same assaultive conduct can be both a tort and a crime, this term

isolates the legal elements that give rise to civilliabil­ ity. [Cases: Assault and Battery C:=>2.] conditional assault. (1971) An assault expressing a threat on condition, such as "your money or your life." criminal assault. (1835) An assault considered as a crime and not as a tort. _ This term isolates the legal elements that give rise to criminal liability even though the act might also have been tortious. [Cases: Assault and Battery C:=>48.] excusable assault. An assault committed by accident or while doing a lawful act by lawful means, with ordinary caution and without any unlawful intent. felonious assault. An assault that is of sufficient severity to be classified and punished as a felony. See aggra­ vated assault; assault with a deadly weapon. [Cases: Assault and Battery C:=>60.] indecent assault. See sexual assault (2).

indecent assault by contact. See sexual assault (2)

indecent assault by exposure. See INDECENT

EXPOSURE.

intoxication assault. An assault that occurs when an inebriated person causes bodily injury to another person. [Cases: Automobiles C:=> 347.J malicious assault with a deadly weapon. An aggra­ vated assault in which the victim is threatened with death or serious bodily harm from the defendant's use of a deadly weapon. - Malice is inferred from both the nature of the assault and the weapon used. [Cases: Assault and Battery C:=>56.] sexual assault. (1880) 1. Sexual intercourse with another person who does not consent. - Several state statutes have abolished the crime ofrape and replaced it with the offense of sexual assault. [Cases: Rape 1.] 2. Offensive sexual contact with another person, exclusive of rape. - The Model Penal Code lists eight circumstances under which sexual contact results in an assault, as when the offender knows that the victim is mentally incapable ofappreciating the nature of the conduct, either because ofa mental disease or defect or because the offender has drugged the victim to prevent resistance. Model Penal Code § 213.4. - Also termed (in sense 2) indecent assault; sexual assault by contact; indecent assault by contact. Cf. RAPE. [Cases: Assault and BatteryC~59.] sexual assault by contact. See sexual assault (2). simple assault. I. See ASSAULT (1). 2. See ASSAULT (2). "(1) Simple Assault. A person is guilty of assault if he:

(a) attempts to cause or purposely, knowingly or reck­ lessly causes bodily injury to another; or (b) negligently causes bodily injury to another with a deadly weapon; or (c) attempts by physical menace to put another in fear of imminent serious bodily injury." Model Penal Code § 211.1 (1997).

assault and battery. (16c) Loosely, a criminal battery. See BATTERY. "Although the term assault and battery is frequently used when a battery has been committed, one who commits a

battery cannot also be punished for committing an assault, since the lesser offense of assault blends into the actual battery." Paul Marcus, "Assault and Battery," in I Encyclo· pedia of Crime and Justice 88, 88 (Sanford H. Kadish ed.. 1983).

assault by contact. See ASSAULT. assaultee. A person who is assaulted. assaulter. A person who assaults another. assault with a dangerous weapon. See assault with a deadly weapon under ASSAULT. assault with a deadly weapon. See ASSAULT. assay, n. 1. A proof or tria\, by chemical experiments, of the purity of metals, esp. gold and silver. 2. An exami­ nation of weights and measures. assayator regis. See ASSAYER OF THE KING. as sayer. One who makes assays of precious metals. assayer of the king. Hist. An officer of the royal mint, appointed by St. 2 Hen. 6, ch. 12, who receives and tests bullion taken in for coining. - Also termed assayator regis. assecurare (a-sek-ya-rair-ee), vb. [Law Latin] Hist. To make secure, as by pledges. assecuration (a-sek-ya-ray-shan). Marine insurance. Insurance. assecurator (a-sek-ya-ray-tar), Marine insurance. An insurer. assembly. (14c) 1. A group of persons organized and united for some common purpose. delegate assembly. See CONVENTION (4). deliberative assembly. Parliamentary law. A body that transacts business according to parliamentary law. ­ A deliberative assembly typically has several distin­ gUishing characteristics: (1) it is a group ofpeople who meet to propose, discuss, and possibly vote on courses of action to be undertaken in the group's name; (2) participants are free to use their own judgment; (3) enough people participate so that a certain degree offormality in the proceedings is desirable; (4) each participant has one vote and may dissent without fear of expulsion; and (5) when some members are absent, the members actually present have the authority to act for the entire group (subject to quorum and other requirements). See Henry M. Robert, Robert's Rules of Order Newly Revised § 1, at 2 (lOth ed. 2000). ordinary assembly. Parliamentary law. A deliberative assembly other than a legislative body. riotous assembly. Hist. An unlawful assemblage of 12 or more persons causing a disturbance of the peace. See RIOT. [Cases: Riot C=c 1.] unlawful assembly. (16c) A meeting of three or more persons who intend either to commit a violent crime or to carry out some act, lawful or unlawful, that will constitute a breach of the peace. Cf. RIOT. [Cases: Unlawful Assembly "In order that the assembly may be 'unlawful,' it is not necessary that the object of the meeting should itself be

illegal. The test is, not the illegality of the purpose for which the persons are met, but the danger to the peace which their meeting involves. The mere fact, therefore, that the purpose is unlawful is not enough; it must be shown that it involves reasonable apprehension of a breach of the peace. Thus, if a number of persons meet to plan a fraud, they may be guilty of a conspiracy, but their meeting is not an unlawful assembly." 4 Stephen's Commentaries on the Laws of England 135-36 (L. Crispin Warmington ed., 21sted.1950). "An unlawful assembly differs from a riot in that if the parties assemble in a tumultuous manner, and actually execute their purpose with violence, it is a riot; but if they merely meet on a purpose, which, if executed, would make them rioters, and, having done nothing, they separate without carrying their purpose into effect, It is an unlawful assembly." 77 c.JS. Riot; Insurrection § 2, at 565 (1994).

2. In many states, the lower house of a legislature. 3. Parliamentary law. CONVENTION (4). 4. Patents. In a patent claim, a collection of parts used to form a struc­ ture. assembly, right of. See RIGHT OF ASSEMBLY. assensio mentium (a-sen-see-oh men-shee-am). [Latin "assent of minds"] See MEETING OF THE MINDS. assent, n. (14c) Agreement, approval, or permission; esp., verbal or nonverbal conduct reasonably interpreted as willingness. See CONSENT. assent, vb. "The requirement of 'assent,' which is fundamental to the formation of a binding contract, implies in a general way that both parties to an exchange shall have a reasonably clear conception of what they are getting and what they are giving up." Marvin A. Chirelstein, Concepts and Case Analysis in the Law of Contracts 66 (l 990).

actual assent. Assent given by words or conduct intended to express willingness. apparent assent. Assent given by language or conduct that, while not necessarily intended to express will­ ingness, would be understood by a reasonable person to be so intended and is actually so understood. constructive assent. (1811) Assent imputed to someone based on conduct. express assent. (16c) Assent dearly and unmistakably communicated. implied assent. (18c) Assent inferred from one's conduct rather than from direct expression. mutual assent. (17c) Agreement by both parties to a contract, llSU. in the form of offer and acceptance. ­ In modern contract law, mutual assent is determined by an objective standard - that is, by the apparent intention ofthe parties as manifested by their actions. Cf. MEETING OF THE MINDS. lCases: Contracts C=c IS.]

assented stock. See STOCK. assenting-silence doctrine. (1976) The principle that an accusation will be taken as true, despite silence by the accused, if the accusation was made under cir­ cumstances in which silence can be fairly said to be an agreement. _ This doctrine is usu. held to be invalid as a measure of a criminal defendant's guilt. [Cases: Criminal Law C=c407.]

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assessment for benefits

assert, vb. 1. To state positively. 2. To invoke or enforce a legal right. - assertory, assertive, adj. - assertor, n. assertion, n. (I5c) 1. A declaration or allegation. 2. A person's speaking, writing, acting, or failing to act with the intent of expressing a fact or opinion; the act or an instance of engaging in communicative behavior. See assertive conduct under CONDUCT. - assert, vb. assertor, n. assertive conduct. See CONDUCT. assertive question. Civil law. A question asked of a witness at a criminal trial, by which inadmis­ sible evidence is sought, to provide the jury with details regarding another crime. Cf. INTERROGATIVE QUESTION.

assertory covenant. See COVENANT (1). assertory oath. See OATH. assessable insurance. 1. See INSURANCE. 2. See assess­ able policy (1) under INSURANCE POLlCY. assessable policy. 1. See INSURANCE POLlCY. 2. See assessable insurance (1) under INSURANCE. assessable security. See SECURITY. assessable stock. See STOCK. assessed valuation. See VALUATIOK. assessed value. See VALUE (2). assessee (as-;l-see), n. A person against whom a payment is assessed. assessment, n. (16c) 1. Determination of the rate or amount of something, such as a tax or damages . [Cases: Damages C='95-126; Internal Revenue ::> 4520; Taxation (>:>2428, 2512-2527.] 2. Imposition of something, such as a tax or fine, according to an established rate; the tax or fine so imposed . [Cases: Internal Revenue .4520; Taxation (>::>2428, 2512-2527.] "There is a distinction between public improvements, which benefit the entire community, and local improve­ ments, which benefit particular real estate or limited areas of land. The latter improvements are usually financed by means of special, or local, assessments. These assessments are, in a certain sense, taxes. But an assessment differs from a general tax in that an assessment is levied only on property in the immediate vicinity of some local municipal improvement and is valid only where the property assessed receives some special benefit differing from the benefit that the general public enjoys." Robert Kratovil, Real Estate Law465 (6th ed. 1974).

assessmentfor benefits. See special assessment. deficiency assessment. An assessment by the IRS ­ after administrative review and tax-court adjudi­ cation of additional tax owed by a taxpayer who underpaid. See DEFICIENCY (2). [Cases: Internal Revenue ::> 469.] jeopardy assessment. An assessment by the IRS ­ without the usual review procedures of additional tax owed by a taxpayer who underpaid, based on the IRS's belief that collection ofthe deficiency would be jeopardized by delay. IRC (26 USCA) §§ 6811 et seq. [Cases: Internal Revenue C-'='4548.] local assessment. A tax to pay for improvements (such as sewers and sidewalks) in a deSignated area, levied on property owners who will benefit from the improvements. Also termed local- improvement assessment. [Cases: Municipal Corporations 405.] "Since there is [an] important and fundamental distinc­ tion between the tax in the more limited sense and the local assessment, the question often arises whether provi­ sions in constitutions and statutes which refer by name to taxes, include also local assessments. This is primarily a question of legislative intention. In the absence of anything to show the specific intention of the legislature, the general rule is that the local assessment possesses such marked peculiarities differentiating it from the tax in the more limited sense of the term, that the use of the term 'tax' does not prima facie show an intention to include local assessments." 1 William H. Page & Paul Jones, A Treatise on the Law of Taxation by Local and Special Assessments § 39, at 67 (1909).

maintenance assessment. See MAINTENANCE FEE (2). political assessment. Hist. A charge levied on office­ holders and political candidates by a political party to defray the expenses for a political canvass. special assessment. The assessment of a tax on property that benefits in some important way from a public improvement. Also termed assessment for benefits. [Cases: Municipal Corporations (>::>405.] 3. Official valuation ofproperty for purposes of taxation . - Also termed tax assessment. Cf. APPRAISAL. [Cases: Taxation (>::>2431.] 4. An audit or review <environmental site assessment>. - assess, vb. assessment bond. See BOND (3). assessment company. An association that offers its members life insurance, and then pays for death losses by levying an assessment on the surviving members of the association. assessment contract. See CONTRACT. assessment district. See DISTRICT.

assessment for benefits. See special assessment under

ASSESSMENT.

assessment fund

assessment fnnd. The balance of the assessments of a mutual benefit association, minus expenses, from which beneficiaries are paid. [Cases: Beneficial Asso­ ciations 17.] assessment insurance. See INSURANCE. assessment list. See ASSESSMENT ROLL. assessment period. A taxable period. assessment ratio. For property tax purposes, the ratio of assessed value to fair market value. assessment roll. A record of taxable persons and property, prepared by a tax assessor. Also termed assessrn,ent list; (in some New England states) grand list. [Cases: Taxation 1363.J appointive asset. An asset distributed under a power of appointment. assets by descent. The portion of an estate that passes to an heir and is sufficient to charge the heir with the decedent's speCialty debts. - Also termed assets per descent. assets in hand. The portion of an estate held by an executor or administrator for the payment of debts chargeable to the executor or administrator. - Also termed assets entre main; assets entre mains. assets per descent. See assets by descent. asset under management. A securities portfolio for which an investment adviser provides ongoing, regular supervisory or management services. capital asset. 1. A long-term asset used in the operation of a business or used to produce goods or services, such as equipment, land, or an industrial plant. ­ Also termed jixed asset. 2. For income-tax purposes, any of most assets held by a taxpayer except those

134

assets specifically excluded by the Internal Revenue Code.• Excluded from the definition are, among other things, stock in trade, inventory, and property held by the taxpayer primarily for sale to customers in the ordinary course of trade or business. [Cases: Internal Revenue 0='3230.1-3261.) commercial assets. The aggregate of available property, stock in trade, cash, and other assets belonging to a merchant. current asset. An asset that is readily convertible into cash, such as a marketable security, a note, or an account receivable. Also termed liqUid asset; quick asset; near money;jinancial asset. "Current assets are assets expected to be converted to cash. sold. or consumed during the next twelve months, or within the business's normal operating cycle if the cycle is longer than a year. The operating cycle is the period from the time that cash is used to acquire goods and services, these goods and services are sold to customers, and the accounts receivable from these customers are collected in cash. For a small retail store, the operating cycle may be only a few weeks or months. For a shipbuilding company, however, the normal operating cycle could run several years." Jay Alix & Elmer E. Heupel, FinanCial Handbook foy Bankruptcy Professionals § 9.2, at 354 (1991).

dead asset. A worthless asset; an asset that has no real­ izable value, such as an uncollectible account receiv­ able. earning asset. (usu. pI.) An asset (esp. of a bank) on which interest is received.• Banks consider loans to be earning assets. equitable asset. An asset that is subject to payment only in a court of equity. financial asset. See current asset. fixed asset. See capital asset (1). frozen asset. An asset that is difficult to convert into cash because of court order or other legal process. hard asset. See real asset. hidden asset. An asset carried on the books at a sub­ stantially reduced or understated value that is con­ siderably less than market value. illiquid asset. An asset that is not readily convertible into cash, usu. because of (1) the lack of demand, (2) the absence of an established market, or (3) the sub­ stantial cost or time required for liquidation (such as for real property, even when it is desirable). individual asset. (usu. pl.) Property belonging to a member of a partnership as personal property, separate from the partnership's property. [Cases: Partnership (;:::)67.]

i

intangible asset. Any nonphysical asset or resource than can be amortized or converted to cash, such as patents, goodwill, and computer programs, or a right to something, such as services paid for in advance. junk asset. See troubled asset.

legal asset. A decedent's asset that by law is subject to

the claims of creditors or legacies. - Also termed

assignable

135

probate asset. [Cases: Executors and Administrators C--:>38.] liquid asset. See current asset. mass asset. An intangible asset, such as a dominant market position, that is made up of several compo­ nents but that is considered a single entity for purposes of depreciation, because the loss of any component of the asset is replaced by new components, so that the whole asset has little or no fluctuation in value. • An entity with a dominant market position might lose a vendor but, because of its dominant market position, still be able to replace the loss with a new vendor. The market position is therefore considered a mass asset. net assets. See net worth under WORTH. net quick assets. The excess of quick assets less current liabilities. See QUICK-ASSET RATIO. new asset. Wills & estates. In the administration of a decedent's estate, property that the administrator or executor receives after the time has expired to file claims against the estate. nominal asset. An asset whose value is difficult to assess, such as a judgment or claim. nonadmitted asset. An asset that by law may not be included in evaluating the financial condition of an insurance company because it cannot be converted quickly into cash without a finandalloss. Cf. admitted asset. [Cases: Insurance (;=- 1363.] nonprobate asset. Property that passes to a named beneficiary upon the owner's death according to the terms of some contract or arrangement other than a will. • Such an asset is not a part of the probate estate and is not ordinarily subject to the probate court's jurisdiction (and fees), though it is part of the taxable estate. Examples include life-insurance contracts, joint property arrangements with right of survivorship, pay-an-death bank accounts, and inter vivos trusts. Also termed nonprobate property. Cf. WILL SUBSTITUTE. [Cases: Wills ~4.] personal asset. An asset in the form of money or chattels. premarital asset. Property that a spouse owned before marrying.• In most jurisdictions, this is part of the spouse's separate property. See SEPARATE PROPERTY. Cf. COMMUNITY PROPERTY. [Cases: Divorce 252.3(3); Husband and Wife ~248.5.] probate asset. See legal asset. quick asset. 1. Cash and other current assets other than inventory. 2. See current asset. real asset. 1. An asset in the form ofland. 2. Loosely, any tangible asset. - Also termed hard asset. tangible asset. An asset that has a physical existence and is capable of being assigned a value. toxic asset. See troubled asset. troubled asset. A debt-related asset, such as a mortgage loan, for which the debt has become or is likely to

become un collectable, resulting in a sudden, sharp decrease in the asset's value. - Also termed toxic asset; junk asset. wasting asset. An asset exhausted through use or the loss ofvalue, such as an oil well or a coal deposit. asset acquisition. Acquisition of a corporation by pur­ chasing all its assets directly from the corporation itself, rather than by purchasing shares from its sharehold­ ers. Also termed asset purchase. Cf. SHARE ACQUI­ sITIoN.

asset allocation. The spreading offunds between differ­ ent types of investments with the intention of decreas­ ing risk and increasing return. asset-backed security. See SECURITY. asset-based financing. See FINANCING. asset-coverage test. Accounting. A bond-indenture restriction that permits additional borrowing only if the ratio of assets (typically net tangible assets) to debt (typically long-term debt) does not fall below a speci­ fied minimum. asset-depreciation range. (1971) Tax. The IRS's range of depreciation lifetimes allowed fOf assets placed in service between 1970 and 1980 and for assets depreci­ ated under the Modified Accelerated Cost Recovery System under the Tax Reform Act of 1986. - Abbr. ADR. See ACCELERATED COST RECOVERY SYSTEM. [Cases: Internal Revenue ~3476.] asset dividend. See DIVIDEND. asset-protection trust. See TRUST (3). asset purchase. See ASSET ACQUISITION. asset sale and liquidation. Mergers & acquisitions. A merger in which a corporation's board and a majority of the stockholders approve a sale of most or all of the corporation's assets to another corporation in exchange for cash or debt. assets by descent. See ASSET. assets entre main. See assets in hand under ASSET. assets in hand. See ASSET. assets per descent. See assets by descent under ASSET. asset under management. See ASSET. asset value. See NET ASSET VALUE. asseverate (;>-sev-;>-rayt), vb. (1744) To state solemnly or positively; to aver. See AVERMENT. - asseveration (;>-sev-;>-ray-sh;>n), n. assign, n. (usu. pl.) See ASSIGNEE. assign, vb. 1. To convey; to transfer rights or property . 1.] 2. To assert; to pOint out [Cases: Assignments 71.] assignment by operation oflaw. A transfer of a right or obligation as a necessary consequence of a change in legal status, regardless of the affected party's intent. • For example, a right and a corresponding obliga­ tion may disappear if they vest in the same person, as might happen in a merger or acquisition. assignmentfor value. An assignment given in exchange for consideration. [Cases: Assignments (;:='53.] assignment in gross. A transfer of a company's trade­ mark separately from the goodwill of the business. • Courts often hold that such an assignment passes nothing of value to the transferee. - Also termed naked assignment. See ANTl-ASSIGNMENT-IN-GROSS RULE. [Cases: Trademarks Cd 1201.] assignment ofaccount. An assignment that gives the assignee the right to funds in an account, usu. to satisfy a debt. [Cases: Assignments C:::> 10.] assignment ofapplication. 1. Patents. The U.S. Patent and Trademark Office's formal routing of a patent or trademark application to the examining group to which it appears to belong based on subject matter. [Cases: Patents C:::> 104; Trademarks ~-, 1287.]2. The transfer of the right to prosecute a patent or register a trademark .• The assignee must show ownership in the property to be patented or registered and, if less than absolute, the extent of ownership. See 37 CFR § 3.73. [Cases: Patents C:::> 183; Trademarks 1197.] assignment ofdower (dow-;:Ir). The act of setting apart a widow's share of her deceased husband's real property. [Cases: Dower and Curtesy 0:::::'65-112.] assignment ofincome. See assignment ofwages. assignment oflease. An assignment in which a lessee transfers the entire unexpired remainder of the lease

137

term, as distinguished from a sublease transfer­ ring only a portion of the remaining term. [Cases: Landlord and Tenant (;::::::>74-79.] assignment of realty. A transfer of a real-property interest that is less than a freehold .• The term includes debt-security interests in land. assignment ofwages. A transfer of the right to collect wages from the wage earner to a creditor. - Also termed assignment of income. [Cases: Assignments

assignment pro tanto. An assignment that results when an order is drawn on a third party and made payable from a particular fund that belongs to the drawer. • The drawee becomes an assignee with respect to the drawer's interest in that fund. [Cases: Assignments (;::;:J 49.]

collateral assignment. An assignment of property as collateral security for a loan. [Cases: Secured Trans­ actions C:::::> 181.] common-law assignment. An assignment for the benefit of creditors made under the common law, rather than by statute. [Cases: Debtor and Creditor 1.] conditional assignment. An assignment of income (such as rent payments or accounts receivable) to a lender, made to secure a loan .• The lender receives the assigned income only if the assignor defaults on 199(2); the underlying loan. [Cases: Mortgages Secured Transactions (;::;:J 181.] effective assignment. An assignment that terminates the assignor's interest in the property and transfers it to the assignee. equitable assignment. An assignment that, although not legally valid, will be recognized and enforced in equity for example, an assignment of a chose in action or of future acquisitions of the assignor.• To accomplish an "equitable assignment," there must be an absolute appropriation by the assignor of the debt or fund sought to be assigned. [Cases: Assignments C-~48.1

fly-power assignment. A blank written assignment that, when attached to a stock certificate, renders the stock transferable. [Cases: Corporations C~ 125.] foreign assignment. An assignment made in a foreign country or in another jurisdiction. general assignment. Assignment of a debtor's property for the benefit ofall the assignor's creditors, instead of only a few. - Also termed voluntary assignment. See ASSIGNMENT FOR THE BENEFIT OF CREDITORS. [Cases: Debtor and Creditor 1.] gratuitous assignment. An assignment not given for value; esp., an assignment given or taken as security for - or in total or partial satisfaction of - a preex­ isting obligation. [Cases: Assignments C:::::>54.] mesne assignment (meen). A middle or intermediate assignment; any assignment before the last one.

assignment for the benefit of creditors

naked assignment. See assignment-in-gross. partial assignment. The immediate transfer ofpart but not all of the assignor's right. [Cases: Assignments C:::::> 30.] preferential assignment. See PREFERENTIAL TRANS­ FER.

total assignment. An assignment empowering the assignee to enforce the entire right for the benefit of the assignor or others.• Examples are assignment to secure an obligation and assignment to a trustee. voluntary assignment. See general assignment. wage assignment. An aSSignment by an employee of a portion of the employee's pay to another (such as a creditor). [Cases: Assignments (;::;:J 11.1.] 3. The instrument of transfer . [Cases: Assignments (;:::>31.] 4. A welfare recipient's surrender ofhis or her rights to child support (both current and past due) in favor ofthe state as a condition ofreceiving governmental financial assistance . 5. A task, job, or appointment 15; Parent and Child C-~20.] assisted reproductive technology. Family law. Any medical means of aiding human reproduction, esp. through laboratory procedures. - Abbr. ART. Also termed assisted reproduction; assisted-reproductive therapy. [Cases: Child Custody C-::o274.5; Children Out-of-Wedlock C= 15; Parent and Child C=>20.] assisted self-determination. See assisted suicide under SUICIDE.

assisted suicide. See SUICIDE. assize (a-sIz), n. (14c) 1. A session of a court or council. maiden assize. Hist. 1. An assize in which no prisoner is sentenced to death. 2. An assize in which the sheriff presents the judges with white gloves because there are no prisoners to try.• This practice stemmed from a custom in which a prisoner who was convicted of murder but pardoned by the Crown presented gloves to the judges as a fee. 2. A law enacted by such a body, usu. one setting the measure, weight, or price of a thing. Assize ofArms. An 1181 statute requiring every man to keep arms suitable to his station in life. See ASSISA ARMORUM.

Assize of Clarendon (klar-~:m-d. 2. English law. See life insurance under INSURANCE <she obtained assurance before traveling abroad, naming her husband as the beneficiary>. 3. The act of transfer­ ring real property; the instrument by which it is trans­ ferred . assure, vb. adequate assurance. 1. Contracts. A circumstance or a contractual obligor's act that gives an obligee reason to be confident that the contract will be duly performed. • If the obligee has good reason to feel insecure and justifiably demands assurance, an obligor's failure to provide adequate assurance may constitute a repudia­ tion of the contract. UCC § 2-609. [Cases; Sales 152, 184.] 2. Bankruptcy. Evidence that a debtor will probably be able to perform its obligations under a contract, such as the posting of a bond or a showing that the debtor will generate sufficient income to pay any arrearages and future payment obligations. [Cases; Bankruptcy (;:::>2481,3114.] collateral assurance. A pledge made in addition to the principal assurance of an agreement. common assurance. See MUNIMENT OF TITLE. further assurance. (17c) A covenant, usu. contained in a warranty deed, whereby the grantor promises to execute any document that might be needed in the future to perfect the title that the original instrument purported to transfer. assured, n. Insurance. One who is indemnified against loss; INSURED. [Cases: Insurance (;:::>2100.J assurer. See LNSURER. as their interests may appear. See ATIMA. astipulation (as-tip-Yd-Iay-sh;m). Archaic. Agreement; assent. astitution (as-t;l-t[yjoo-sh;m). Archaic. See ARRAIGN­ MENT. astrarius (as-trair-ee-ds), n. [Law Latin "hearth owner"] Hist. The owner or occupant of a house. Also termed astrer (as-trdr). See heres astrarius under HERES. astronomical day. See solar day (2) under DAY.

asylee (d-5I-Iee). A refugee applying for asylum; an asy­ lum-seeker. [Cases: Aliens, Immigration, and Citizen­ ship (;:::>504-543.] asylum. (15c) 1. A sanctuary or shelter. 2. Protection of usu. political refugees from arrest by a foreign juris­ diction; a nation or embassy that affords such protec­ tion. Also termed political asylum. [Cases: Aliens, Immigration, and Citizenship (;::=504-543.] 3. An institution for the protection and relief of the unfor­ tunate, esp. the mentally ilL Also termed (in sense 3, archaically) insane asylum. [Cases: Asylums and Assisted Living Facilities (;:::> 10; Mental Health 31.] atamita (;l-tam-i-td), n. [Latin] Civil law. A great-great­ great-grandfather's sister. at arm's length. See ARM'S-LENGTH. atavia (;l-tay-vee-;l), n. [Latin] Roman & civil law. A great-great-great grandmother. atavunculus (at-d-v 3450.] Atinian law. See LEX ATINIA. at issue. (18c) Taking opposite sides; under dispute; in question . at-issue waiver. (1985) An exemption from the attorney­ client privilege, whereby a litigant is considered to have waived the privilege by taking a position that cannot

145

be effectively challenged without analyzing privileged information. Cf. OFFENSIVE-USE WAIVER. [Cases: Privi­ leged Communications and Confidentiality (::::'j 168.] Atlantic Reporter. A set of regionallawbooks, part of the West Group's National Reporter System, containing every published appellate decision from Connecticut, Delaware, Maine, Maryland, New Hampshire, New Jersey, Pennsylvania, Rhode Island, and Vermont, as well as the decisions of the District of Columbia Munic­ ipal Court of Appeals, from 1885 to date .• The first series ran from 1885 to 1938; the second series is the current one. - Abbr. A.; A.2d. at large. (14,) 1. Free; unrestrained; not under control . 2. Not limited to any particular place, person, matter, or question . 3. Chosen by the voters of an entire political entity, such as a state, county, or city, rather than from separate districts within the entity . 4. Not ordered in a topical way; at random <statutes at large>. 5. Fully; in detail; in an extended form 27 14.] 3. A writ ordering legal seizure of property (esp. to satisfy a creditor's claim) or of a person. - Also termed writ oj attach­ ment. [Cases: Attachment Federal Civil Pro­ cedure C:='581.] ancillary attachment. An attachment that results in seizure and holding of property pending a resolution

146

attachment bond

of the plaintiff's claim. Also termed attachment on mesne process. [Cases: Attachment 4. The creation of a security interest in property, occur­ ring when the debtor agrees to the security, receives value from the secured party, and obtains rights in the collateral. DCC § 9-203. Cf. PERFECTION. [Cases: Secured Transactions 133.] 5. The act of affixing or connecting; something (as a document) that is affixed or connected to something else. attachment bond. See BOND (2). attachment lien. See LIEN. attachmen.t of earnings. See attachment ofwages under ATTACHMENT (1). attachment ofrisk. (I 900) The point when the risk ofloss of purchased goods passes from the seller to the buyer. DCC § 2-509. [Cases: Sales ~ 198.] attachment of wages. See ATTACHMENT (1). attachment on mesne process. See ancillary attachment under ATTACHMENT (3). attainder (;J-tayn-d;Jr), n. (1Sc) 1. At common law, the act of extinguishing a person's civil rights when that person is sentenced to death or declared an outlaw for committing a felony or treason. 2. Hist. A grand­ jury proceeding to try whether a jury has given a false verdict. 3. 1he conviction ofa jury so tried. See BILL OF ATTAINDER. - attaint (;J-taynt), vb.

SPIRACY; SOLICITATION (2).

44.J

"An attempt to commit an indictable offence is itself a crime. Every attempt is an act done with intent to commit the offence so attempted. The existence of this ulterior intent or motive is the essence of the attempt .. , . (Yet] raj Ithough every attempt is an act done with intent to commit a crime, the converse is not true. Every act done with this intent is not an attempt, for it may be too remote from the completed offence to give rise to criminal liability, not­ withstanding the criminal purpose of the doer. I may buy matches with intent to burn a haystack, and yet be clear of attempted arson; but if I go to the stack and there light one of the matches, my intent has developed into a criminal attempt." John Salmond, Jurisprudence 387 (Glanville L. Williams ed., 10th ed. 1947).

:::

"Attempt ... is the most common of the preliminary crimes. It consists of steps taken in furtherance of an indictable offence which the person attempting intends to carry out if he can. As we have seen there can be a long chain of such steps and it is necessary to have some test by which to deCide that the particular link in the chain has been reached at which the crime of attempt has been achieved; that link will represent the actus reus of attempt ...." J.W. Cecil Turner, Kenny's Outlines of Criminal Law 79 06th ed.1952).

attempted assault. See ASSAULT. attempted marriage. See void marriage under MARRIAGE (1).

attempted monopolization. See MONOPOLIZATION. attempted suicide. See SUICIDE. attempt to assault. See attempted assault under

"The word attainder is derived from the Latin term aUine­ tus, Signifying stained or polluted, and includes, in its meaning, all those disabilities which flow from a capital sentence. On the attainder, the defendant is disqualified to be a witness in any court; he can bring no action, nor perform any of the legal functions which before he was admitted to discharge; he is, in short, regarded as dead in law." 1 Joseph Chitty, A Practical Treatise on the Criminal Law 725 (2d ed. 1826).

attaint (;J-taynt), adj. (14c) Maligned or tarnished repu­ tationally; under an attainder for crime. . attaint, n. Hist. A writ to inquire whether a 12-member jury gave a false verdict. - If it was so found (by a 24-member jury), the judgment based on the verdict was overturned. The writ was abolished in England in 1826. attempt, n. (16c) 1. The act or an instance of making an effort to accomplish something, esp. without success. 2. Criminal law. An overt act that is done with the intent to commit a crime but that falls short of completing the crime. _ Attempt is an inchoate offense distinct from the intended crime. Under the Model Penal Code, an attempt includes any act that is a substantial step toward commission of a crime, such as enticing, lying in wait for, or following the intended victim or unlaw­ fully entering a building where a crime is expected to be committed. Model Penal Code § 5.01. - Also termed criminal attempt; offer. See DANGEROUS-PROXIMITY

ASSAULT.

!

TEST; INDISPENSABLE-ELEMENT TEST; LAST-PROXI­ MATE-ACT TEST; PHYSICAL-PROXIMITY TEST; PREPARA­ TION; PROBABLE-DESISTANCE TEST; RES IPSA LOQUITUR TEST; PREPARATION; SUBSTANTIAL-STEP TEST. Cf. CON­

[Cases: Criminal Law

attempt, vb.

I

attempt to attempt. (1903) A first step made toward a criminal attempt of some sort, such as a failed effort to mail someone a note inciting that person to engage in criminal conduct. _ As a general rule, courts do not recognize an attempt to commit a crime that is itself an attempt. But some jurisdictions recognize this offense, esp. when the attempted crime is defined to be an independent substantive crime. For example, some jurisdictions recognize an attempted assault if assault is defined as placing a person in apprehension of bodily injury (as opposed to being defined merely as an attempted battery). In this situation, courts have been willing to punish conduct that falls short of the attempted crime but constitutes more than mere preparation to commit it. See attempted assault under ASSAULT. [Cases: Criminal Law ~44.] attendance officer. See TRUANCY OFFICER. attendant, adj, (lSc) Accompanying; resulting . attendant circumstance. See CIRCUMSTANCE. attendant term. See TERM (4). attentate (d-ten-tayt), 11. His!. 1. A criminal attempt. 2. An assault. 3. An erroneous step taken by a lower-court judge after a case has been stayed or appealed. attenuation doctrine (72.] 2. Patents & trademarks. An attorney whose name is not included in a power of attorney on file with the u.s. Patent and Trademark Office for a patent or trade­ mark application.• An attorney not of record may nevertheless prosecute a patent application if regis­ tered to practice before the U.S. Patent and Trade­ mark Office and appointed by the principal attorney. 37 CFR 1.34(a). Cf. attorney not recognized. attorney not recognized. Patents. An attorney appointed by a patent applicant but not registered to practice before the U.S. Patent and Trademark Office. • A power of attorney appointing an unregistered attorney is void. Cf. attorney not of record. [Cases: Patents (;:::::>97.] attorney of record. 1. The lawyer who appears for a party in a lawsuit and who is entitled to receive, on the party's behalf, all pleadings and other formal docu­ ments from the court and from other parties. - Also termed counsel of record. See OF RECORD (1). [Cases: Appearance (>:::>3.J 2. Patents & Trademarks. The attorney or agent whose name is included in the power of attorney filed by an applicant for a patent or a trademark registration.• For a patent applica­ tion, the attorney of record must be a patent attorney or a patent agent. [Cases: Patents C=>97.) briefing attorney. 1. An attorney who specializes in brief-writing, particularly appellate briefs and legal memoranda. 2. CLERK (5). panel attorney. (1951) A private attorney who rep­ resents an indigent defendant at the government's expense.• A panel attorney is usu. a member of an affiliated list and aSSigned by a court to a particular client. research attorney. 1. An attorney who specializes in proViding legal support by researching, by writing memoranda, and by preparing drafts of documents. 2. CLERK (5). - In some jurisdictions, a research attorney

148

attorney, power of

is a midlevellaw clerk, above a briefing attorney but below a staff attorney. settlement attorney. An attorney who specializes in negotiating resolutions for disputes, such as pending lawsuits, or in finalizing negotiated transactions, such as real-property sales. Sometimes also termed (in real-property sales) settlement agent. special attorney. See special counsel under COUNSEL. staff attorney. (1934) 1. A lawyer who works for a court, usu. in a permanent position, on matters such as reviewing motions, screening docketing state­ ments, preparing scheduling orders, and examin­ ing habeas corpus petitions. - Staff attorneys do not rule on motions or decide cases, but they review and research factual and legal points, and recommend proposed rulings to judges, as well as drafting the orders implementing those rulings. See CLERK (5). [Cases: Courts (;::::;)55.] 2. An in-house lawyer for an organization, esp. a nonprofit organization but some­ times for a corporation. Cf. in-house counsel under COUNSEL. 3. A lawyer who works for a law firm and performs the functions of an associate but who is not on a partnership track. attorney, power of. See POWER OF ATTORNEY. attorney-at-law. See ATTORNEY (2). attorney-client privilege. See PRIVILEGE (3). attorney-client relationship. See RELATIONSHIP. attorney fees. See ATTORNEY'S FEES. attorney for the child. See attorney ad litem under ATTORNEY.

attorney general. (l6c) The chieflaw officer of a state or of the United States, responsible for advising the gov­ ernment on legal matters and representing it in liti­ gation. _ "General" is a postpositive adjective, not an honorific, so the title should not, strictly speaking, be shortened. - Abbr. AG. PI. attorneys general. [Cases: Attorney General attorney general's opinion. (1808) 1. An opinion fur­ nished by the U.S. Attorney General to the President or another executive official on a request concerning a question oflaw. [Cases: Attorney General ~6.1 2. A written opinion by a state attorney general, usu. given at the request of a public official, interpreting a legal provision. attorney in charge. See lead counsel (1) under COUNSEL.

attorney-in-fact. See ATTORNEY (1). attorney malpractice. See legal malpractice under MAL­ PRACTICE.

attorney not of record. See ATTORNEY. attorney not recognized. See ATTORNEY. attorney of record. See ATTORNEY. Attorneys and Agents Registered to Practice Before the U.S. Patent and Trademark Office. A PTO publica­

tion listing all registered patent attorneys and agents by name and location. attorney's fees. (i8c) The charge to a client for services performed for the client, such as an hourly fee, a flat fee, or a contingent fee. - Also spelled attorneys'fees. Also termed attorney fees. Cf. RETAINER (2). [Cases: Attorney and Client (;:::::' 137, 142.1, 146.1.] attorney's lien. See LIEN. attorney-witness rule. See LAWYER-WITNESS RULE. attorney work product. See WORK PRODUCT. attorney-work-product privilege. See WORK-PRODUCT RULE.

attornment (;l-tarn-mant), n. (16c) 1. A tenant's agree­ ment to hold the land as the tenant of a new landlord. [Cases: Landlord and Tenant C=-':-15.]2. A constructive delivery involVing the transfer of mediate possession while a third person has immediate possession; esp., a bailee's acknowledgment that he or she will hold the goods on behalf ofsomeone other than the bailor. - For the other two types of constructive delivery, see CON­ STITUTUM POSSESSORIUM; TRADITIO BREVI MANU. ­

attorn, vb. "[Another] form of constructive delivery is that which is known to English lawyers as attornment.... The mediate possessor of a thing may deliver it by procuring the imme' diate possessor to agree with the transferee to hold it for the future on his account, instead of on account of the transferor. Thus if I have goods in the warehouse of A and sell them to B, I have effectually delivered them to B so soon as A has agreed with B to hold them for him, and no longer for me." John Salmond, Jurisprudence 306-07 (Glanville L. Williams ed., 10th ed. 1947).

attorn tenant. See ATTORN (1). attractive nuisance. See NUISANCE. attractive-nuisance doctrine. (I903) Torts. The rule that a person who owns property on which there is a dangerous thing or condition that will foreseeably lure children to trespass has a duty to protect those children from the danger . - Also termed turntable doctrine; torpedo doctrine. See ALLUREMENT; DANGEROUS INSTRUMEN­ TALITY. [Cases: Negligence (;:::>1l72-1178.] attribution, n. The process outlined in the Internal Revenue Code - by which a person's or entity's stock ownership is assigned to a related family member or related entity for tax purposes. Also termed stock attribution. [Cases: Internal Revenue ~3626.1 attribute, vb. attributive, adj. attribution right. Copyright. A person's right to be credited as a work's author, to have one's name appear in connection with a work, or to forbid the use ofone's name in connection with a work that the person did not create. - Attribution rights constitute one aspect of the moral rights recognized primarily in civil-law countries. Under the Visual Artists Rights Act of 1990, the creators of a very limited class of works-called works ofvisual art-have certain statutory attribution

rights. 17 USCA § 106A. Under the Berne Convention Implementation Act, attribution rights afforded foreign copyright owners may be enforceable in the U.S. Also termed rights ofattribution; paternity; maternity. Cf. INTEGRITY RIGHT; MORAL RIGHT. [Cases: Copyrights and Intellectual Property C=>36.] att'y. abbr. ATTORNEY. ATVEF. abbr. ADVANCED TELEVISION ENHANCEMENT FORUM.

at will. (14c) Subject to one's discretion; as one wishes or chooses; esp. (of a legal relationship), able to be ter­ minated or discharged by either party without cause <employment at will>. at-will employment. See employment at will under EMPLOYMENT.

at-will tenancy. See tenancy at will under TENANCY. Atwood doctrine. The principle that, to the extent an ERISA plan and its summary-plan description conflict regarding the circumstances under which benefits may be denied, the summary-plan description controls. Atwood v. Newmont Gold Co., 45 F.3d 1317 (9th Cir. 1995); 29 USCA § 1022. See SUMMARY-PLAN DESCRIP­ TION. [Cases: Labor and Employment C=>483(2).) au besoin (oh bd-zwan). [French "in case of need") A des­ ignation in a bill of exchange stating who is responsible for payment if the drawee fails or refuses to pay.• For example, au besoin is part ofthe phrase au besoin, chez Messrs. Garnier et DuCloux (meaning "in case of need, apply to Messrs. Garnier and DuCloux"). A.U.C. abbr. AB URBE CONDITA. auction, n. (l6c) A public sale ofproperty to the highest bidder.• Under UCC § 2-328, a sale at auction is ordi­ narily complete when the auctioneer so announces in a customary manner, as by pounding a hammer. Also termed auction sale. [Cases: Auctions and Auctioneers 1,7.) auction, vb. auction without reserve. An auction in which the property will be sold to the highest bidder, no minimum price will limit bidding, the owner may not withdraw property after the first bid is received, the owner may not reject any bids, and the owner may not nullify the bidding by outbidding all other bidders.• In an auction without reserve, the owner essentially becomes an offeror, and each successively higher bid creates a contingent acceptance, with the highest bid creating an enforceable contract. Also termed absolute auction. See WITHOUT RESERVE. [Cases: Auctions and Auctioneers auction with reserve. An auction in which the property will not be sold unless the highest bid exceeds a minimum price. See WITH RESERVE. [Cases: Auctions and Auctioneers C-~7.l Dutch auction. 1. An auction in which property is ini­ tially offered at an excessive price that is gradually lowered until the property is sold. 2. An auction in which several identical items are offered simultane~ ously, one to a bidder, and sold to the highest bidders

for the amount of the lowest winning bid. 3. Secu­ rities. A method of tendering stock shares whereby a corporation provides a price range, shareholders indicate how many shares they will sell and at what price, and the corporation buys however many shares it wants at the lowest prices offered. - Also termed Dutch-auction tender method. [Cases: Auctions and Auctioneers 4443.] desk audit. A review of a civil-service position to deter­ mine whether its duties and responsibilities fit the prescribed job classification and pay scale. [Cases: Officers and Public Employees (;:::::c 11.8.: double audit. An audit of the same subject performed separately by two independent auditors. environmental audit. A company's voluntary self-audit to evaluate its environmental-management programs and to determine whether it is in compliance with environmental regulations. event-driven audit. An audit that focuses on particu­ lar transactions or activities that may raise signifi­ cant legal issues .• Unlike routine periodic audits, an event-driven audit can focus substantial auditing resources on analyzing a particular event. field audit. An IRS audit conducted at the taxpayer's business premises, accountant's offices, or lawyer's offices. [Cases: Internal Revenue C~'4443.1 independent audit. An audit conducted by an outside person or firm not connected with the person or orga­ nization being audited. internal audit. An audit performed by an organiza­ tion's personnel to ensure that internal procedures, operations, and accounting practices are in proper order. office audit. An IRS audit of a taxpayer's return con­ ducted in the IRS agent's office. [Cases: Internal Revenue C='4443.)

periodic audit. An audit conducted at regular intervals to assess a company's current condition. post audit. An audit of funds spent on a completed capital project, the purpose being to assess the effi­ ciency with which the funds were spent and to compare expected cash-flow estimates with actual cash flows. tax audit. The review of a taxpayer's return by the IRS, including an examination of the taxpayer's books, vouchers, and records supporting the return. - Also termed audit ofreturn. [Cases: Internal Revenue 4443.]

transactional audit. An audit performed for due­ diligence purposes to determine whether there are potentially significant problems with a transaction. • Transactional audits are often conducted in real­ property transactions to identify any environmen­ tal problems. In that context, the audit is sometimes called a site assessment. audita querela (aw-dI-td kWd-ree-Id). [Law Latin "the complaint having been heard"] A writ available to a judgment debtor who seeks a rehearing of a matter on grounds of newly discovered evidence or newly existing legal defenses. [Cases: Audita Querela (;:::::c 1.1 "The writ of audita querela (= quarrel having been heard) ... , introduced during the time of Edward Ill, was available to re·open ajudgment in certain circumstances. It was issued as a remedy to defendant where an important matter concerning his case had arisen since the judgment. Its issue was based on equitable, rather than common law principles." L.B. (urzon, English Legal History 103 (2d ed. 1979).

"Audita querela is distinguished from coram nobis in that coram nobis attacks the judgment itself. whereas audita querela may be directed against the enforcement, or further enforcement, of ajudgment which when rendered was just and unimpeachable." 7A c.J.S. Audita Querela § 2, at 901 (1980).

audit committee. See COMMITTEE. audit letter. A written request for an attorney, banker, or someone else to give financial auditors informa­ tion about a person or entity being audited, including information about pending or threatened litigation .• The recipient of an audit letter usu. sends the response (called an audit-letter response) directly to the financial auditors. See AUDIT RESPONSE. audit-letter response. See AUDIT RESPONSE. audit of return. See tax audit under AUDIT.

audit opinion. See OPINIOK (2).

auditor. A person or firm, usu. an accountant or an

accounting firm, that formally examines an individ­ ual's or entity's financial records or status. city auditor. A municipal official responsible for examines a city's accounts and financial records. county auditor. An official who examines a county's accounts and financial records. state auditor. The appointed or elected official respon­ sible for overseeing state fiscal transactions and

author

151

auditing state-agency accounts. See AUDIT. [Cases: States C:>76.] audit privilege. In an intellectual-property license agree­ ment, the right of the licensor to inspect the licensee's books and records. Also termed audit rights. [Cases: Copyrights and Intellectual Property C'"::) 107.] audit report. An independent auditor's written state­ ment, usu. accompanying a company's financial state­ ment, expressing the auditor's opinion ofthe accuracy ofthe company's financial condition as set forth in the financial statement. audit respo.nse. A letter that an attorney provides to a client's financial auditors, usu. at the client's request, regarding matters such as pending or threatened litigation.• Audit responses should comply with the American Bar Association's Statement of Policy Regarding Lawyer's Responses to Auditors' Requests for Information, published in December 1975. - Also termed audit-letter response. See AUDIT LETTER. audit rights. See AUDIT PRIVILEGE. audit trail. (1954) The chain of evidence connecting account balances to original transactions and calcu­ lations. augmented estate. See ESTATE (3). aula regis (aw-b ree-jis). [Latin "king's hall"] Hist. See CURIA REGIS.

Aunt Jemima doctrine. Trademarks. The principle that a trademark is protected not only from use on a directly competing product, but also from use on a product so closely related in the marketplace that consumers would be confused into thinking that the products came from a Single source. Aunt Jemima Mills Co. v. Rigney & Co., 247 F. 407 (2d Cir. 1917); 15 l;SCA § 1114. • In the namesake case, the name used on pancake flour was later used on syrup. lhe issue was not whether a competitor was trying to pass off goods, but whether it was fair to let the name's second user jeopardize the goodwill built up by the first user. See COMPLEMEN­ TARY GOODS. [Cases: Trademarks 1104.] aural acquisition. (1968) Criminal law. l;nder the Federal Wiretapping Act, hearing or tape-recording a communication, as opposed to tracing its origin or destination. 18 USCA § 2510(4). [Cases: Telecommu­ nications AUSA. abbr. See assistant United States attorney under ;';NITED STATES ATTORNEY.

Australian ballot. See BALLOT (4). aut dedere autjudicare. [Latin "extradite or prosecute"] International law. The principle that a nation where a fugitive from justice is found has a duty to either extra­ dite the fugitive to the nation from which the person has fled or to prosecute the person in its own courts. • This is an emerging prinCiple, and not accepted as a customary rule in international law. Cf. AUT DEDERE AUT POENAM PERSEQUI; AUT DEDERE AUT JUDICARE AUT TRANSFERERE.

aut dedere aut judicare aut transferere. [Latin "extra­ dite, prosecute, or transfer"] International law. An emerging principle that a nation may choose neither to extradite nor to prosecute a person accused of a crime but instead may" deliver" the person to a third nation .• This is not a de facto extradition because the receiving state may also refuse to surrender the accused person to the requesting state. Cf. AUT DEDERE AUT j;';DICARE; AUT DEDERE AUT POENAM PERSEQUL

aut dedere aut poenam persequi. [Latin "extradite or enforce the sanction"] International law. The rule that a sentence handed down by a court against a person who flees or has ned to another nation should be enforced by that nation ifit chooses not to extradite the person. Cf. AUT DEDERE AUT JUDICARE; AUT DEDERE AUT JUDICARE AUT TRANSFERERE.

authentic act. Civil law. 1. A writing signed before a notary public or other public officer. [Cases: Acknowl~ edgment C:> 1.]2. A certified copy ofa writing. [Cases: Evidence (;:::;;)343.] authenticate, vb. 1. To of (a thing). [Cases: Criminal Law C:>366-381.] 2. To render authoritative or authentic, as by attestation or other legal formality. See UCC § 9-102(a)(7). authentication, n. (lSc) 1. Broadly, the act of proving that something (as a document) is true or genuine, esp. so that it may be admitted as evidence; the condition of being so proved . Evidence C:> 366-381.] [Cases: Criminal Law 2. Specif., the assent to or adoption of a writing as one's own. "The concept of authentication, although continually used by the courts without apparent difficulty. seems almost to defy precise definition. Some writers have construed the term very broadly, as does Wigmore when he states that 'when a claim or offer involves impliedly or expressly any element of personal connection with a corporeal object, that connection must be made to appear ... .' So defined, 'authentication' is not only a necessary preliminary to the introduction of most writings in evidence, but also to the introduction of various other sorts of tangibles." John W. Strong et aI., McCormick on Evidence § 218, at 350 (5th ed. 1999) (italics in original).

self-authentication. (1939) Authentication without extrinsic evidence of truth or genuineness.• In federal courts, certain writings, such as notarized documents and certified copies ofpublic records, may be admitted into evidence by self-authentication. Fed. R. Evid. 902. [Cases: Criminal Law C-'"::)444; Evidence C:>366-381.] authentic interpretation. See INTERPRETATION. authenticum (aw-then-t48.] autocracy (aw-tok-r289-297; Double Jeopardy C=>100.] "Suppose that a transgressor is charged and acquitted for lack of evidence, and evidence has now come to light showing beyond doubt that he committed the crime. Even so, he cannot be tried a second time. He has what is termed, in legal Frenglish, the defence of autrefois acquit. Similarly, if he is convicted, even though he is let off very lightly, he cannot afterwards be charged on fresh evidence, because he will have the defence of autrefois convict. These uncouth phrases have never been superseded, though they might well be called the defence of 'previous acquittal' and 'previous conviction'; and 'double jeopardy' makes an acceptable generic name for both." Glanville Williams, Textbook of Criminal Law 24 (1978).

autrefois attaint (;l-taynt). Hist. A plea in bar that the defendant has already been attainted for one felony and therefore cannot be prosecuted for another.• This plea was abolished in 1827. autrefois convict. [Law French "previously convicted"] A plea in bar of arraignment that the defendant has been convicted of the offense. See DOUBLE JEOPARDY. [Cases: Criminal Law C=>289-297; Double Jeopardy C=>lOS.] autre vie (oh-tr;l vee). [Law French "another's life"] 1. See PUR AUTRE VIE. 2. See VIE. auxiliary (awg-zil-y;l-ree), adj. 1. Aiding or supporting. 2. Subsidiary. 3. Supplementary. auxiliary covenant. See COVENANT (1). auxiliary jnrisdiction. See assistant jurisdiction under JURISDICTION. auxiliator (awg-zil-ee-ay-t;lr), n. [Latin] Hist. A helper; an assistant. auxilium (awg-zil-ee-;lm), n. [Latin] Hist. Aid; esp., compulsory aid such as a tax or tribute to be paid by a vassal to a lord as an incident of the tenure by knight's service. auxilium ad filium militem faciendum etfiliam mari­ tandam (awg-zil-ee-;lm ad fil-ee-;lm mil-;l-tem fay­ shee-en-d;lm et fil-ee-am mar-;l-tan-d;lm), n. [Law Latin] Hist. A writ ordering a sheriff to levy a tax toward

the knighting of a son and the marrying of a daughter of tenants in capite of the Crown. auxilium curiae (awg-zil-ee-;lm kyoor-ee-I or kyoor­ ee-ee). [Latin] Hist. A court order summoning a party to appear and assist another party already before the court. auxilium regis (awg-zil-ee-;lm ree-jis), n. [Latin] Hist. The Crown's tax levied for royal use and public service, such as a tax granted by Parliament. auxilium vice comiti (awg-zil-ee-;lm VI-see kom-;l-tr), n. [Latin] Hist. An ancient tax paid to sheriffs. avail, n. (ISc) 1. Use or advantage . 2. (pI.) Profits or proceeds, esp. from a sale of property . available, adj. Legally valid . available for work, adj. (Of a person) ready, willing, and able to accept temporary or permanent employment when offered. availment, n. (17c) The act of making use or taking advantage of something for oneself . - avail, vb. avail of marriage. See VALOR MARITAGIl. aver (;l-var), vb. (ISc) To assert positively, esp. in a pleading; to allege. average, n. 1. A single value that represents the midpoint of a broad sample of subjects; esp., in mathematics, the mean of a series. 2. The ordinary or typical level; the norm. 3. Maritime law. Accidental partial loss or damage to an insured ship or its cargo during a voyage. [Cases: Shipping C=> 186-202.] - average, vb. & adj. extraordinary average. A contribution by all the parties concerned in a commercial voyage - whether for vessel or cargo - toward a loss sustained by some of the parties in interest for the benefit of all. general average. Average resulting from an intentional partial sacrifice of ship or cargo to avoid total loss .• The liability is proportionately shared by all parties who had an interest in the voyage. - Abbr. GA. ­ Also termed gross average; general-average contribu­ tion. [Cases: Shipping C=> 186-202.] "[Gleneral average refers to certain extraordinary sacrifices made or expenses incurred to avert a peril that threat· ens the entire voyage. In such a case the party sustaining the loss confers a common benefit on all the parties to the maritime venture. As a result the party suffering the loss has a right - apart from contract or tort - to claim contribution from all who participate in the venture. The doctrine of general average is thus an equitable principle derived from the general maritime law. General average is an exception to the principle of particular average that losses lie where they fall; rather the loss becomes 'general,' meaning that it is spread ratably among all the parties involved in the maritime adventure. The doctrine of general average is of ancient vintage, and can be traced back to remotest antiquity." ThomasJ. Schoenbaum, Admiralty and Maritime Law § 16·1, at 522-23 (1987).

particular average. Average resulting from an acci­ dental partial loss or damage.• Any average that

is not general is termed particular. The liability is borne solely by the person who suffered the loss. ­ Also termed simple average; partial average; petty average. 4. Hist. A service, esp. one of carriage, due from a feudal tenant to a lord.• The average is mentioned in the Domesday Book, but the exact nature of the service is unclear. Based on etymological studies, some authorities believe the term referred to the performance of work with or by beasts of burden. But because the term's origin is unclear, this theory is not universally accepted. average adjuster. See ADJUSTER. average bond. See general-average bond under BOND (2).

average cost. See COST (1). average daily balance. See DAILY BALANCE. average gross sales. See SALE. average tax rate. See TAX RATE. average variable cost. The average cost per unit of output, arrived at by dividing the total variable expenses of pro­ duction by the total units of output. See COST (1). Cf. LONG-RUN INCREMENTAL COST. averaging down. An investment strategy in which shares in the same company are purchased at successively lower prices to achieve a lower average cost basis than the first purchase .• An investor may buy any number of shares in each transaction, not necessarily the same number each time. Cf. AVERAGING UP. averaging up. An investment strategy in a rising market in which equal numbers of shares in the same company are purchased at successively higher prices to reduce the investment's average cost basis .• For example, if an investor buys an equal number of shares at $10, $13, $15, and $lS, the average cost basis per share is $14. Cf. AVERAGING DOWN. averment (;:)-v;Jr-m;mt), n. (lSc) A positive declaration or affirmation of fact; esp., an assertion or allegation in a pleading 126(5), 164.) Massachusetts ballot. A ballot in which, under each office, the candidates' names appear in alphabetical order alongside their party designations .• This is a type of Australian ballot. office-block ballot. A ballot that lists the candidates' names under the title of the office sought without mentioning the candidates' party affiliations. [Cases: Elections (;:::::c 126(5), 168(1), 173.] party-column ballot. A ballot that lists the candidates' names in separate columns by political party regardless of the offices sought by the candidates. [Cases: Elections 168(1),173.] Texas ballot. A ballot that the voter marks for the candidates that he or she does not want elected.• The Texas ballot is particularly useful when the number of candidates only slightly exceeds a large number of representatives being elected. [Cases: Elections ~ 180(1).] ballot box. A locked box into which ballots are deposited. Bamako Convention on the Ban of the Import into Africa and the Control of Transboundary Movement of Hazardous Wastes Within Africa. A 1991 treaty prohibiting the importation of hazardous wastes into Africa and restricting the transfer of wastes among African nations .• The treaty's objectives are to protect human health and the environment from the dangers posed by hazardous wastes by banning their importation, banning the dumping of waste in seas and internal waters, and reducing waste generation. Only a nation that is a member of the Organization of African Unity

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(OAU) can become a party to the Bamako Convention. Often shortened to Bamako Convention. ban, n. 1. Hist. A public proclamation or summons .• Bans dealt with a variety of matters, such as the calling to arms of a lord's vassals or the proclamation that an offender was henceforth to be considered an outlaw. 2. Eccles. law. An authoritative ecclesiastical prohibition; an interdict or excommunication. 3. BANNS OF MATRIMONY. - Also spelled bann. ban, vb. To prohibit, esp. by legal means. banality (b156-163.] commercial bank. (18c) A bank authorized to receive both demand and time deposits, to make loans, to engage in trust services, to issue letters of credit, to rent time-deposit boxes, and to provide similar services. correspondent bank. A bank that acts as an agent for another bank, or engages in an exchange of services with that bank, in a geographical area to which the other bank does not have direct access. custodian bank. A bank or trust company that acts as custodian for a clearing corporation and that is supervised and audited by a state or federal authority. depositary bank. (1848) The first bank to which an item is transferred for collection. UCC § 4-105(2). [Cases: Banks and Banking 2.] member bank. A bank that is a member of the Federal Reserve System. - Also termed reserve bank. See FEDERAL RESERVE SYSTEM. [Cases: Banks and Banking 16; United States C=>34.] bank statement. See STATEMENT OF ACCOUNT (1). bank-statement rule. (1974) Commercial law. The principle that if a bank customer fails to examine a bank statement and any items returned with it, and report to the bank within a reasonable time any unauthorized payments because of a material alteration or forgery, the customer may be precluded from complaining about the alteration or forgery. UCC § 4-406. [Cases: Banks and Banking C=> 14S(3, 4), 174.] bann, n. [Law Latin] 1. BAN. 2. Hist. The power of a court to issue an edict, esp. one relating to the public peace. 3. Hist. The edict itself. - Also termed bannum. "An essential attribute of judicial power in the later periods is the bann, the right to command and forbid. Etymologically, bann comes from a root signifying loud speech. It may have meant at first the order issued by the leader in war; later an administrative command or ordinance. Hence it covers the official proclamation of peace in the court, and then it comes to mean the peace itself. In the older Frank sources, bann appears in the Latin as sumo, and sumo regis is the king's peace. Extra sermonem regis ponere means to put out of the peace. Another Latin or rather Latinized German word is forisbannire, from which comes our word 'banish.'" Munroe Smith, The Development of European Law 35 (1928).

bannitio (bd-nish-ee-oh or ba-). [Law Latin] Hist. Expulsion by a ban or public proclamation; banishment. See EXILE; BAN (1).

bannitus (ban-d-tds). [Law Latin] Hist. A person under a ban; an outlaw. See BAN (1). banns of matrimony. Family law. Public notice of an intended marriage .• The notice is given to ensure that objections to the marriage would be voiced before the wedding. Banns are still common in many churches. Also spelled bans of matrimony. - Also termed banns of marriage. [Cases: Marriage C=>24.] "A minister is not obliged to publish banns of matrimony unless the persons to be married deliver to him, at least seven days before the intended first publication, a notice in writing stating the Christian name and surname and the place of residence of each of them and the period during which each has resided there .... Banns are to be published in an audible manner and in the form of words prescribed by the rubric prefixed to the office of matrimony in the Book of Common Prayer on three Sundays preceding the solemnisation of marriage during morning service or, if there be no morning service on a Sunday on which they are to be published, during evening service." Mark Hill, Ecclesiastical Law 136 (2d ed. 2001) (dealing with practice in the Church of England).

bannum. See BANN. bar, n. (14c) 1. In a courtroom, the railing that separates the front area, where court business is conducted, from the back area, which provides seats for observers; by extension, a similar railing in a legislative assembly . 2. The whole body oflawyers qualified to practice in a given court or

jurisdiction; the legal profession, or an organized subset of it 474.4(3).] battery, n. (16c) 1. Criminal law. The use of force against another, resulting in harmful or offensive contact. Also termed criminal battery. [Cases: Assault and Battery "Criminal battery, sometimes defined briefly as the unlawful application offorce to the person of another, may be divided into its three basic elements: (1) the defendant's conduct (act or omission); (2) his 'mental state,' which may be an intent to kill or injure, or criminal negligence, or perhaps the doing of an unlawful act; and (3) the harmful result to the victim, which may be either a bodily injury or an offensive touching." Wayne R. LaFave & Austin W. Scott Jr., Criminal Law § 7.15, at 685 (2d ed. 1986).

aggravated battery. (IS B) A criminal battery accompanied by circumstances that make it more severe, such as the use of a deadly weapon or the fact that the battery resulted in serious bodily harm .• In most state statutes, aggravated battery is classified as both a misdemeanor and a felony. [Cases: Assault and Battery (:;:::> 54.] sexual battery. (1974) The forced penetration of or contact with another's sexual organs or the perpetrator's sexual organs .• In most state statutes, sexual battery is classified as both a misdemeanor and a felony. Cf. RAPE. [Cases: Assault and Battery Rape~l.l

simple battery. (I877) A criminal battery not accompanied by aggravating circumstances and not resulting in serious bodily harm .• Simple battery is usu. a misdemeanor but mav rise to a felony if the victim is, for instance, a child 0; a senior citizen. [Cases: Assault and Battery C=48.] 2. Torts. An intentional and offensive touching of another without lawful justification. Also termed tortious battery. [Cases: Assault and Cf. ASSAULT. batter, vb. "A battery is the actual application of force to the body of the prosecutor. It is, in other words, the assault brought to completion. Thus, if a man strikes at another with his cane and misses him, it is an assault; if he hits him, it is a battery. But the slightest degree of force is suffiCient, provided that it be applied in a hostile manner; as by pushing a man or spitting in his face. Touching a man to attract his attention to some particular matter, or a friendly slap on the back is not battery, owing to the lack of hostile intention." 4 Stephen's Commentaries on the Laws of England 62-63 (L. Crispin Warmington ed., 21st ed. 1950).

battle of the forms. (1947) The conflict between the terms of standard forms exchanged between a buyer and a seller during contract negotiations .• In its original version, UCC § 2-207 attempted to resolve battles of the forms by abandoning the common-law

requirement of mirror-image acceptance and providing that a definite expression of acceptance may create a contract for the sale of goods even though it contains different or additional terms. - Also termed UCC battle oftheforms. See MIRROR-IMAGE RULE. [Cases; Sales (>;;)22(4),23(4).] "The rules of offer and acceptance are difficult to apply in certain circumstances known as the 'battle of the forms' where parties want to enter into a contract, but jockey for position in an attempt to use the rules of law so as to ensure that the contract is on terms of their choosing." P.S. Atiyah, An Introduction to the Law of Contract 54 (3d ed. 1981).

batture (b;:::>5.] historic bay. A bay that, because of its shape, would not be considered a bay subject to the coastal country's jurisdiction, except for that country's long-standing unilateral claim over it; a bay over which the coastal country has traditionally asserted and maintained dominion. Bayh-Dole Act. Patents. A federal statute that permits the U.S. Government to take title to or require licensing of nongovernmental inventions made by small businesses and nonprofit organizations while participating in federally funded programs .• Under the Act, an entity funded by the federal government must timely disclose any invention made in the course of a federally funded program. The entity may elect to retain title and to file and prosecute a patent application covering the invention. If the entity retains title to the invention, the government may still "march in" to force the entity to grant exclusive or nonexclusive licenses in appropriate circumstances. The Act is codified in 35 USCA §§ 200-212. Also termed Patent and Trademark Law Amendments Act. See MARCH-IN RIGHTS. [Cases: Patents United States (';=,97.] BCA. abbr. See business-continuation agreement under AGREEMENT.

BCD

BCD. See bad-conduct discharge under DISCHARGE (8). BCD special court-martial. See COURT-MARTIAL. BCIA. abbr. BERNE CONVENTION IMPLEMENTATION ACT.

BEA. abbr. BUREAU OF ECONOMIC ANALYSIS. beadle (beed-dl). 1. Hist. A court crier with duties similar to those of a constable. See NUNTIUS (3). 2. Hist. Eccles. law. A minor parish officer who serves the vestry's needs in various ways, including giving notice of the vestry's meetings, executing its orders, and attending its inquests. 3. A macebearer at Oxford University or Cambridge University. Also spelled bedel. beak. ErE Slang. A magistrate or justice of the peace. bear, vb. 1. To support or carry . 2. To produce as yield . 3. To give as testimony . bear drive. See BEAR RAID. bearer. (l3c) One who possesses a negotiable instrument marked "payable to bearer" or indorsed in blank. 137; Bills and Notes Banks and Banking U8,1S3.] bearer bill oflading. See BILL OF LADING. bearer bond. See BOND (3). bearer document. See bearer paper under PAPER. bearer instrument. See bearer paper under PAPER. bearer paper. See PAPER. bearer security. See SECURITY. bear hug. Slang. A (usu. hostile) takeover strategy in which the acquiring entity offers the target firm a price per share that is Significantly higher than market value, intending to squeeze the target into accepting. reverse bear hug. A maneuver by which a takeover target responds to a bidder's offer by showing a willingness to negotiate but demanding a much higher price than that offered .• This is usu. an antitakeover tactic. bear market. See MARKET. bear raid. Slang. High-volume stock selling by a large trader in an effort to drive down a stock price in a short time .• Bear raids are prohibited by federal law. - Also termed bear drive. beat, n. 1. A law-enforcement officer's patrol territory. 2. A colloquial term for the principal county subdivision in some southern states, such as Alabama, Mississippi, and South Carolina. 3. A voting precinct. be at the horn. Scots law. See PUT TO THE HORN. beaupleader (boh-plee-dar). [Law French "fair pleading"] Hist. 1. A fine imposed for bad or unfair pleading. 2. A writ of prohibition that prevented a sheriff from taking a fine for bad pleading.• 1he Statute of Marlbridge (1267) prohibited the taking of fines for this type of pleading. See PROHIBITION (2).

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beauty contest. Slang. A meeting at which a major client interviews two or more law firms to decide which firm to hire. bederepre. See BEDRIP. bedrip. Hist. A copyhold tenant's service of reaping the landlord's grain. - Also spelled bederepre; biderepe. before-and-after theory. Antitrust. A method of determining damages tor lost profits (and sometimes overcharges), whereby the plaintiff's profits are examined before, during, and after the violation to estimate the reduction in profits due to the defendant's violation. Also termed before-and-after method. Cf. YARDSTICK THEORY; MARKET-SHARE THEORY (1). [Cases: Antitrust and Trade Regulation (:::::e98S.] "In its simplest form. the [before-and-after] theory looks at the plaintiff's net profits before and after the injury period, discounts all dollars to their present value, and gives the plaintiff a sum that, before trebling, will bring its earnings during the injury period up to the same average level as its earnings during the noninjury periods." Herbert Hovenkamp, Economics and Federal Antitrust Law § 16.7, at 450 (1985).

before first action, adv. Patents. After the filing of a patent application but before the mailing of any office action by the U.S. Patent and Trademark Office examiner.• For example, an applicant typically files an information disclosure statement before first action, and often files preliminary amendments as well. [Cases: Patents (:::::e 104.] before the fact. (17c) In advance of an event oflegal significance. beg, vb. 1. To request earnestly; to beseech. 2. Hist. To request to be appointed as guardian for (a person). 3. Hist. To request that someone be appointed as guardian for. 4. To ask for charity, esp. habitually or pitiably. beggar, n. A person who communicates with people, often in public places, asking for money, food, or other necessities for personal use, often as a habitual means of making a living. beggar-thy-neighbor policy. A government's protectionist course of action taken to discourage imports by raising tariffs and instituting nontariffbarriers, usu. to reduce domestic unemployment and increase domestic output. • This term is sometimes applied to competitive currency devaluation. behavioral science. The body of disciplines (psychology, sociology, anthropology) that study human behavior. behoof, n. Archaic. A use, profit, or advantage that is part of a convevance . behoove,

vb.

'

beige book. Slang. The popular name of the Federal Reserve's Summary of Commentary on Current

Economic Conditions by Federal Reserve District, a publication that summarizes the economic conditions in each of the 12 Federal Reserve Bank regions .• Each Federal Reserve Bank gathers information from reports submitted by bank and branch directors; through interviews with economists, market experts, and key

bench

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business contacts; and from other sources. The beige book is published eight times each year. Bekanntmachung im Patentblatt. [German] Patents. The date on which a Gebrauchsmuster (German petty patent) is published and made available to the public. belief, n. A state of mind that regards the existence of something as likely or relatively certain. belief-action distinction. (1966) Constitutional law. rn First Amendment law, the Supreme Court's distinction between allowing a person to follow any chosen belief and allowing the state to intervene if necessary to protect others from the practices of that belief. belief-duster. In critical legal studies, a group of unconnected ideas or opinions that appear to be related when considered together in reference to a specific subject, such as racism, sexism, or religious intolerance. believe, vb. 1. To feel certain about the truth of; to accept as true. Cf. SUSPECT, vb. reasonably believe. To believe (a given fact or combination offacts) under circumstances in which a reasonable person would believe. 2. To think or suppose. belligerency. Int 'llaw. 1. The status assumed by a nation that wages war against another nation. [Cases: War and National EmergencyC.:::> 1.]2. The quality of being belligerent; the act or state of waging war. belligerent, n. A country involved in a war or other armed international conflict. Cf. NEUTRAL (1). belligerent, adj. bellum (bel-am). [Latin] See WAR (1). bellum inter duos (bel-am in-tdr d[yjoo-ahs). [Law Latin] Hist. War between two persons; a duel. bellum jllstum (bel-am jas-tam). [Latinj Int'llaw. A just war; one that the proponent considers morally and . legally justifiable, such as a war against an aggressive, totalitarian regime. - Under Roman law, before war could be declared, the fetiales (a group of priests who monitored international treaties) had to certify to the Senate that just cause for war existed. With the adoption of the U.N. Charter, the bellum justum concept has lost its legal significance. The Charter outlaws the use of force except in self-defense. U.N. Charter arts. 2(4), 51 (59 Stat. 1031). - Also termed just war; justifiable war. bellwether stock. See barometer stock under STOCK. belong, vb. 1. To be the property of a person or thing . See OWNERSHIP. 2. To be connected with as a member . belongings. 1. Personal property; EFFECTS. See personal property under PROPERTY. 2. All property, including realty. below, prep., adv. & ad}. 1. Beneath; under; underneath. 2. (Of a lower court) having heard or having the power to hear the case at issue in the first instance ; at a lower level . Cf. ABOVE. below-market loan. See interest-free loan under LOAN. below-the-line, adj. (1970) (Of a deduction) taken after calculating adjusted gross income and before calculating taxable income .• Examples of below-the-line deductions are medical payments and local taxes. Cf. ABOVE-THE-LINE.

Ben Avon Doctrine. The principle that due process entitles public utilities to judicial review of rates set by public-service commissions. Ohio Valley Water Co. v. Ben Avon Borough, 253 U.S. 287,40 S.Ct. 527 (1920). [Cases: Constitutional Law (;::=436l.] bench. (l3c) 1. The raised area occupied by the judge in a courtroom . 2. The court considered in its official capacity . 3. Judges collectively . 4. The judges of a particular court . cold bench. A court, esp. an appellate court, in which the judges are largely unfamiliar with the facts and issues of a case, typically because they have not reviewed the briefs or the record before hearing oral arguments. Cf. hot bench; lukewarm bench. "Let's take the cold bench ... The judges have read neither the briefs nor the record; they know nothing of the case, unless it is one of the few highly publicized cases that reach the newspapers a Dr. Sheppard or a Texas Gulf Sulphur case and represent less than 1 percent of all appellate cases. The judges have no preconceived notions as to how your case should be decided. They listen to your argument with an open mind." Samuel E. Gates, "Hot Bench or Cold Bench: When the Court Has Not Read the Brief before Oral Argument," in Counsel on Appeal 107, 115 (Arthur A. Charpentier ed., 1968).

hot bench. A court, esp. an appellate court, in which, before oral argument, the judges thoroughly familiarize themselves with the facts and issues of the case, usu. by reading the briefs and the record, and often prepare questions for counseL. In the United States today, courts are generally expected to be hot. Cf. cold bench; lukewarm bench. "[Al hot bench, in the narrow sense, is one on which all the judges have read the briefs and the salient parts of the record. The court, therefore, is generally familiar with the facts and the legal issues and has devoted some time to thinking about the case, perhaps even to the point of jotting down questions. Obviously, if the appellate tribunal reviewed your case at some prior stage in the proceedings, it must be conSidered hot. Likewise, if the court has had a good deal of experience in the area of law in which your case falls, I am inclined to classify that bench also as hot." Samuel E. Gates, "Hot Bench or Cold Bench: When the Court Has Not Read the Brief before Oral Argument," in Counsel on Appeal 107, 115-16 (Arthur A. Charpentier ed" 1968).

lukewarm bench. A court, esp. an appellate court, in which only some of the judges, before oral argument, have familiarized themselves with the facts and issues of the case. Also termed tepid bench. Cf. hot bench; cold bench. "I must digress, for a moment to discuss what I choose to call the 'tepid,' or 'lukewarm,' bench. That'S the bench on which one or more of the panel try to read the briefs or are engaged in conversation with a colleague while the

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bench blotter argument is being presented. The judges cannot concen· trate on either the brief or the oral argument. You can only hope that the chandelier will fall and fix their attention on at least one thing and that their consciences will so prick them that later, in the quiet of their chambers, they will apply themselves to a study of the briefs without distrac· tion." Samuel E. Gates, "Hot Bench or Cold Bench: When the Court Has Not Read the Brief before Oral Argument," in Counsel on Appeal 107, 121-22 (Arthur A. Charpentier

ed.,1968).

tepid bench. See lukewarm bench. bench blotter. See ARREST RECORD (2). bench brief. See BRIEF. bench conference. See SIDEBAR CONFERENCE (1). bench docket. See DOCKET (1). bencher. A governing officer of an English Inn of Court; one of the Masters of the Bench. See INN OF COURT (1).

bench legislation. See JCDGE-MADE LAW (2). benchmark. 1. Property. A mark made on a permanent object by a surveyor to serve as a uniform reference point in making topographic surveys and tidal observations. - Formerly also written bench mark. 2. A standard unit used as a basis for comparison. bench memo. (1975) 1. A short brief submitted by a lawyer to a trial judge, often at the judge's request. 2. A legal memorandum prepared by an appellate judge's law clerk to help the judge in preparing for oral argument and perhaps in drafting an opinion.• A trial-court judge may similarly assign a bench memo to a law clerk, for use in preparing for hearing or trial or in drafting an opinion. 3. A memo that summarizes the facts and issues in a case, usu. prepared for a judge by a law clerk. bench parole. See bench probation under PROBATION. bench probation. See PROBATION. bench ruling. (1971) An oral ruling issued by a judge from the bench. bench trial. See TRIAL. bench warrant. See WARRANT (1). bene factum (ben-ay fak-t40.] - benefit, vb. benefit association. See benevolent association under ASSOCIATION. benefit certificate. A written obligation to pay a named person a specified amount upon stipulated conditions. • Benefit certificates are often issued by fraternal and beneficial societies. [Cases: Beneficial Associations (;:::: 18(1).] benefit of an earlier filing date. Patents & Trademarks. For a patent or trademark applicant, the advantage of being assigned the filing date of a related, earlier-filed application .• Under 35 USCA § 119: (1) a U.S. patent application is given the filing date of an earlier toreign application filed in accordance with the Paris Convention as long as the U.S. filing occurs not more than one year after the foreign filing; and (2) a continuing application filed in accordance with 35 USCA § 120 is given the filing date of an earlier-filed U.S. application. Similarly, under 15 USCA § 11 26(d), a U.S. trademark applicant receives the filing date of an earlier-filed foreign application if: (I) the foreign application was filed in a Paris Convention country; and (2) the U.S. application is filed within six months after the foreign application. - Also termed benefit ofpriority filing date; claim ofpriority. [Cases: Patents (;=J 110.] benefit-of-bargain rule. See BENEFlT-OF-THE-BARGAIN RULE. benefit of cession. Civil law. A debtor's immunity from imprisonment for debt .• The immunity arises when the debtor's property is assigned to the debtor's creditors. See CESSIO BONORUM. benefit of clergy. 1. At common law, the privilege of a cleric not to be tried for a felony in the King's Court .• Although clergy includes monks and nuns as well as priests, there are no known cases of women claiming or being

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bequest

granted benefit of clergy. Congress outlawed benefit of clergy in federal courts in April 1790. It was abolished in England in 1827 but survived even longer in some American states, such as South Carolina, where it was successfully claimed in 1855. State v. Bosse, 42 S.C.L. (3 Rich.) 276 (1855). Also termed clergy privilege; clericale privilegium. See NECK VERSE. "Benefit of clergy was a remarkable privilege which, although now obsolete, was for centuries of great importance in criminal law. Some knowledge of it is even now essential for a proper understanding of common law crimes. After William the Conqueror separated the ecclesiastical from the secular courts, the clergy put forward the claim that all persons in holy orders should be exempt from secular jurisdiction in all proceedings, civil or criminal. Eventually the rule was established that 'clerks' of all kinds, who committed any of the serious crimes termed felonies, could be tried only in an ecclesiastical court, and therefore were only amenable to such punishments as that court could inflict. Any clerk accused of such crime was accordingly passed over to the bishop's court. He was there tried before a jury of clerks by the oaths of twelve compurgators; a mode of trial which usually ensured him an acquittaL" J.w. Cecil Turner, Kenny's Outlines of Criminal Law 75 (16th ed. 1952). "'Benefit of clergy,' in its origin, was the right of a clergyman not to be tried for felony in the King's Court. tn ancient times, when the Church was at the peak point of its power, it preempted jurisdiction over felony charges against cler· gymen. It demanded that in any case in which a clergy· man was charged with felony, the case be transferred to the Ecclesiastical Court for trial. The benefit was extreme because conviction of felony in the King's Court resulted in the sentence of death, whereas the Ecclesiastical Court did not make use of capital punishment." Rollin M. Perkins & Ronald N. Boyce, Criminal Law4 (3d ed. 1982).

2. Loosely, religious approval as solemnized by church ritual .• This common use of the phrase is premised on a misunderstanding of its original meaning (sense 1). benefit of counsel. See RIGHT TO COUNSEL (1). benefit of discussion. Civil law. A guarantor's right to require a creditor to seek payment from the principal debtor before seeking payment from the guarantor. Also termed (in French law) benefice de discussion; (in Scots law) right of discussion. [Cases: Guaranty ~ 42(1),45,77(2).] "Benefit of Discussion. By common law a cautioner, bound simply as such, had right to insist that the creditor should discuss the prinCipal debtor, that is, exhaust his estate by diligence, before coming upon him for payment of the debt." William K. Morton & Dale A. Whitman, Manual of the Law of Scotland 299 (1896).

benefit of division. Civil law. A surety's right to be sued only for a part of the debt proportionate to the number of solvent cosureties. Also termed (in Roman law) beneficium divisionis; (in French law) benefice de division; (in Scots law) right of division. [Cases: Principal and Surety ~66, 168, 169, 194.] benefit of inventory. Civil law. 1he principle that an heir's liability for estate debts is limited to the value of what is inherited, if the heir so elects and files an inventory of the estate's assets. Also termed benefice d'inventaire. [Cases: Descent and Distribution ~ 119.]

benefit of priority filing date. See

BENEFIT OF AN

EARLIER FILING DATE.

benefit-of-the-bargain damages. See DAMAGES. benefit-of-the-bargain rule. (1913) 1. The principle that a party who breaches a contract must pay the aggrieved party an amount that puts that person in the same financial position that would have resulted if the contract had been fully performed. [Cases: Damages ~ 117.] 2. Ihe principle that a defrauded buyer may recover from the seller as damages the difference between the value of the property as represented and the actual value received. - Also termed benefit-ofbargain rule. Cf. OUT-OF-POCKET RULE. [Cases: Fraud C:::>59(2).] benevolent association. See ASSOCIATION. benevolentia regis habenda (ben-34.] Berne Union. Copyright. The treaty alliance of Berne Convention member nations. [Cases: Copyrights and Intellectual Property Berry rule. (1956) The doctrine that a defendant seeking a new trial on grounds of newly discovered evidence must show that (1) the evidence is newly discovered and was unknown to the defendant at the time of trial; (2) the evidence is material rather than merely cumulative or impeaching; (3) the evidence will probably produce an acquittal; and (4) the failure to learn of the evidence was not due to the defendant's lack of diligence. Berry v. State, 10 Ga. 511 (1851). [Cases: Criminal Law 938(1).] Bertillon system (bilr-t;l-lon or bair-tee-yawn). A system of anthropometry once used to identify criminals by measuring and describing them. _ The Bertillon system is named for Alphonse Bertillon, the French anthropologist who developed the technique early in the 20th century. It has been largely replaced by fingerprinting. Cf. ANTHROPOMETRY.

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best-interests-of-the-child doctrine "The system of identification known as the Bertillon system is worked out on the assumption that an individ· ual's physical measurements are constant after maturity is attained. Such measurements include height, span of arms, sitting height, length of head, width of right ear, length of left foot, length of left middle finger, length of left little finger, and length of left forearm. The Bertillon system also records photographs (front and profile), hair and eye color, complexion, scars, tattoo marks and any asymmetrical anomalies." Encyclopedia of Criminology 81·'82 (Vernon c. Branham & Samuel B. Kutash eds., 1949), s.v. "Criminalistics."

bes (bes), n. [Latin] 1. Roman law. Two-thirds of the Roman as, or pound, consisting of eight unciae (ounces) out of twelve. See AS; UNCIA. 2. Civil law. Two-thirds of an inheritance. besayel (bes-aY-Jl). [Law French] Hist. L A writ of right used by a great -grandfather's heirs to recover property held by the great-grandfather. See assize of mort d'ancestor under ASSIZE (6). 2. A great-grandfather. Also spelled besaiel; besaile; bisaile; besayle. Cf. AIEL; COSINAGE.

besluit (bi-sloyt), n. [Dutch "decision"] Roman-Dutch law. A legislative resolution or decree. bespeaks-caution doctrine. Securities. 'The principle that if soft information in a prospectus is accompanied by cautionary language that adequately warns investors that actual results or events may affect performance, then the soft information may not be materially misleading to investors. - Soft information includes forecasts, estimates, opinions, and projections about future performance. The doctrine was codified in the Private Securities Litigation Reform Act of 1995. [Cases: Securities Regulation (;=60.27(5).] best bid. See BID (1). best edition. Copyright. A particular version of a copyrighted work that is published in the U.S. before the date of deposit and that is designated by the Library of Congress, in its discretion, as the most suitable for its purposes. - Two copies of a copyrighted work, in the selected best-edition form, must be deposited with the Library. [Cases: Copyrights and Intellectual Property (;'-=>50.10.] best efforts. (17c) Diligent attempts to carry out an obligation . - As a standard, a best-efforts obligation is stronger than a good-faith obligation. Best efforts are measured by the measures that a reasonable person in the same circumstances and of the same nature as the acting party would take. Also termed best endeavors. Cf. due diligence (l) under DILIGENCE; GOOD FAITH. [Cases: Contracts C=" 189.] best-efforts contract. See CONTRACT, best-efforts underwriting. See UNDERWRITING. best embodiment. See BEST MODE. best endeavors. See BEST EFFORTS. best evidence. See EVIDENCE. best-evidence rule. (1894) The evidentiary rule providing that, to prove the contents of a writing (or a recording

or photograph), a party must produce the original writing (or a mechanical, electronic, or other familiar duplicate, such as a photocopy) unless it is unavailable, in which case secondary evidence - the testimony of the drafter or a person who read the document - may be admitted. Fed. R. Evid. 1001-1004. - Also termed documentary-originals rule; original-writing rule; original-document rule. [Cases: Criminal Law (;= 398-403; Evidence C-~,) 157-187.] "Down to a century or more ago, the term 'best eVidence' was a good deal used; 'the best evidence that the nature of the thing will afford' was said to be required. But this loose expression never represented a concrete rule. The only positive and concrete rules of the kind are those above named. And today, though the cant phrase is sometimes invoked, and though an inference may be made against a party who fails to produce what might be better evidence, yet no court will in general exclude relevant evidence because there might be better evidence available," John H. Wigmore, A Students' Textbook of the Law of Evidence 219 (1935).

bestiality (bes-chee-al- 1.] best interests of creditors. Bankruptcy. A test for confirmation of a reorganization plan whereby the court inquires into whether the plan ensures that the value of property to be distributed to each creditor is at least the amount that the creditor would receive if the debtor's estate were liquidated in a Chapter 7 case. - A court may not confirm a plan in a Chapter 9, Chapter 12, or Chapter 13 case unless it is in the best interests of the creditors. In a Chapter 11 case, a court may confirm a plan even though some creditors do not vote to accept it if the court finds that the plan is in the creditors' best interest. 11 USCA §§ 944(7), 1129(a)(7), 1225(a) (4), 1325(a)(4). Also written best interest ofcreditors. [Cases: Bankruptcy (;=3481, 3560,3682,3710(7).] best interests of the child. Family law. A standard by which a court determines what arrangements would be to a child's greatest benefit, often used in deciding child-custody and visitation matters and in deciding whether to approve an adoption or a guardianship. A court may use many factors, including the emotional tie between the child and the parent or guardian, the ability of a parent or guardian to give the child love and gUidance, the ability of a parent or guardian to provide necessaries, the established living arrangement between a parent or guardian and the child, the child's preference if the child is old enough that the court will consider that preference in making a custody award, and a parent's ability to foster a healthy relationship between the child and the other parent. Abbr. BIC. Also termed best interest of the child. Cf. PARENTAL-PREFERENCE DOCTRINE. [Cases: Adoption Child Custody 178; Guardian and Ward (;= 10.] best-interests-of-the-child doctrine. Family law. The principle that courts should make custody decisions

best mode

based on whatever best advances the child's welfare, regardless of a claimant's particular status or relationship with the child. _ One important factor entering into these decisions is the general belief that the child's best interests normally favor custody by parents, as opposed to grandparents or others less closely related. The doctrine is quite old, haVing been stated, for example, in the early 19th-century case of Commonwealth v. Briggs, 33 Mass. 203 (1834). - Sometimes shortened to best-interests doctrine; best-interest doctrine. See PARENTAL-PREFERENCE DOCTRINE. [Cases: Child Custody (;::::>76.] best mode. Patents. The best way that the inventor knows to work the invention described and claimed in a patent or patent application. - A patent application must disclose the best mode known to the inventor at the time of the filing. Failure to disclose the best mode can render a patent invalid. 35 USCA § 112,' L Also termed best embodiment. Cf. ENABLEMENT REQUIREMENT. [Cases: Patents C::::>'98.j best-mode requirement. Patents. 1he requirement that a patent application show the best phYSical method known to the inventor for using the invention. Cf. ENABLEMENT REQUIREMENT. [Cases: Patents C::::>98.] bestow, vb. (l4c) To convey as a gift . - bestowal, n. best use. See highest and best use under USE (1). bet, n. Something (esp. money) staked or pledged as a wager. [Cases: Gaming 1.] - bet, vb. - betting, n. bettor, n. layoff bet. A bet placed by a bookmaker to protect against excessive losses or to equalize the total amount placed on each side of the wager. See LAYOFF BETTOR. [Cases: Gaming C::::>62.] beta. A statistical measure of a security's risk, based on how widely a particular security's return swings as compared to the overall return in the market for that security. - The market's beta is set at 1.0; a security with a beta lower than 1.0 is less risky than the general market, while a security with a beta higher than 1.0 is more so. beta-test agreement. Intellectual property. A software license agreement, usu. between a software developer and a customer, permitting the customer to use the software program in a "live" environment before its release to the general public. - Beta-test agreements differ from more conventional software licenses in that they typically (1) have more significant limitations on liability; (2) contain few, if any, warranties; and (3) require user evaluation and feedback. - Also termed software beta-test agreement. [Cases: Copyrights and Intellectual Property C::::>, 107.] beta testing. Intellectual property. The process of testing products and services, esp. software, under real-life conditions. - Consumers often engage in beta testing at no cost in exchange for reporting to the developer how satisfied they are, any problems they encounter, and any suggested improvements. To protect a trade

182

secret or to avoid a statutory bar, the developer may require the user to sign a nondisclosure agreement. Cf. ALPHA TESTING.

bet din. See BETH DIN. beth din. Family law. A rabbinical tribunal empowered by Jewish law to decide and enforce matters of Jewish law and custom; esp., a tribunal consisting of three rabbis who decide questions of Jewish law. - Also spelled bet din. See BETH TORAH. beth Torah. The judgment rendered by a panel of rabbis. See BETH DIN. betrothal. 1. Eccles. law. A religiOUS ceremony confirming an agreement to marry. _ Historically, a betrothal was performed months or years before the parties wedded. It was in theory as legally binding as a marriage and created an impediment to marriage with any other person, but not an insurmountable impediment. In modern form, the betrothal is usu. part of the marriage ceremony. - Also termed betrothment. See ENGAGEMENT (2). Cf. precontract under CONTRACT; ESPOUSALS. 2. Slang. A corporate merger agreement. betrothment. See BETROTHAL (1). betterment. (18c) l. An improvement that increases the value of real property; esp., an enhancement in the nature of an alteration or addition that goes beyond repair or restoration to a former condition. [Cases: Improvements C::::> 1.]2. An improvement of a highway, railroad, or building that goes beyond repair Of restoration. 3. An increase in value, esp. real-estate value, attributable to improvements. See IMPROVEMENT. betterment act. (1819) A statute requiring a landowner to compensate an occupant who improves the land under a mistaken belief that the occupant is the real owner. _ The compensation usu. equals the increase in the land's value generated by the improvements. Also termed occupying-claimant act; occupant statute. [Cases: Improvements CJ 4.] betterment tax. A tax for the improvement of highways. betting. See PARIMUTUEL BETTING. beyond a reasonable doubt. See REASONABLE DOUBT. beyond seas. (16c) Hist. 1. (Of a person) being absent from a jurisdiction or nation; out of the country, esp. across the ocean. - This term was used when a person could not be served with a summons, notice, etc. because the person was absent from the jurisdiction. Some jurisdictions toll the statute oflimitations during a defendant's absence. 2. Out-of-state. _ Although originally beyond seas meant "out of the country," the U.S. Supreme Court declared that the term includes absence from a state. Murray's Lessee v. Baker, 16 U.S. 541, 545 (1818). - Also termed beyond sea; beyond the seas; ultra mare. "[lIt has been provided that if any person or persons against whom there shall be any cause of action shall at the time of its accrual be beyond seas, then the person or persons entitled to any such cause of action shall be at liberty to bring the same against such person or persons within such

biens

183 time as before limited, after his or their return from beyond seas." John Indermaur, Principles of the Common Law 240 (Edmund H. Bennett ed., 1st Am. ed. 1878).

b.f. abbr. BONUM FACTUM. BFOQ. abbr. BONA FIDE OCCUPATIONAL QUALIFICATION. BFP. See bona fide purchaser under PURCHASER (1). BHC. abbr. BANK HOLDING COMPANY. BIA. abbr. 1. BUREAU OF INDIAN AFFAIRS. 2. BOARD OF IMMIGRATION APPEALS. bias, n. (16c) Inclination; prejudice; predilection . See BIDSHOPPING. bid, vb. - bidder, n. competitive bid. A bid submitted in response to public notice of an intended sale or purchase. firm bid. (1907) A bid that, by its terms, remains open and binding until accepted or rejected .• A firm bid commonly contains no unusual conditions that might defeat acceptance. open bid. (1849) A bid that the bidder may alter after submission so as to meet competing bids. sealed bid. (1849) A bid that is not disclosed until all submitted bids are opened and considered simultaneously. bid and asked. Securities. A notation describing the range of prices quoted for securities in an over-thecounter stock exchange.• Bid denotes the highest price the buyer is willing to pay, and asked denotes the lowest price the seller will accept. See SPREAD (2). [Cases: Exchanges 13.] bid bond. See BOND (2). bidding up. (1823) The act or practice of raising the price for an auction item by making a series of progressively higher bids .• Bidding up is unlawful if the bids are made collusively by persons with an interest in raising the bids. ct BY-BIDDING; SHILLING (1). [Cases: Auctions and Auctioneers (;:::::'7.] biderepe. See BEDRIP. bid in. See BID (1). bid off. See BID (1). bid peddling. See BID-SHOPPI)lG. bid price. See PRICE. bid quote. Securities. The price a broker will pay for a security or commodity. bid-shopping. (1964) A general contractor's effort after being awarded a contract to reduce its own costs by finding a subcontractor that will submit a lower bid than the one used in calculating the total contract price. • If a lower bid is obtained, the general contractor will receive a windfall profit because the savings are usu. not passed on to the property owner. The subcontractor whose bid is used in the initial proposal can seek to avoid bid-shopping by insisting that it be irrevocably named in the contract as the project's subcontractor. bid wanted. Securities. A dealer's notation that bids are being sought from anyone on a security for sale .• The notation appears in the pink sheets. - Abbr. BW. See PINK SHEET. biennial session. See SESSION (1). biennium (bI-en-ee-;3m). 1. A two-year period. 2. The period for which many state legislatures make appropriations. [Cases: States (;:::::' 131.] biens (beenz or byenz). [French] Hist. Goods; property. • Biens includes real property in most civil-law juriSdictions. Cf. BONA.

bifactoral obligation. See OBLIGATION. bifurcated divorce. See divisible divorce under DIVORCE. bifurcated trial. See TRIAL. bigamous (big-~-m~s), adj. 1. (Of a person) guilty of bigamy. 2. (Of a marriage) involving bigamy. bigamus (big-~-m~s), n. Hist. 1. One who commits bigamy; a bigamist. 2. A man who marries a widow, or who remarries. _ Under ecclesiastical law, a bigamus could be denied benefit of clergy. bigamy, n. (13c) 1. The act of marrying one person while legally married to another. - Bigamy is distinct from adultery: It is a criminal offense if it is committed knowingly. In 1878, the U.S. Supreme Court held that the government was not constitutionally prohibited from banning Mormon polygamy. Reynolds v. United States, 98 U.S. (8 Otto) 145 (1878). [Cases: BigamyC=> 1; Marriage 2. Eccles. law. The act of marrying a widow or widower, or a divorced person.• Somewhat surprisingly, sense 2 is valid even under modern ecclesiastical law, but it is not an offense, only a bar to entering holy orders. Also termed sequential marriage. See DEUTEROGAMY. Cf. POLYGAMY; MONOGAMY; ADULTERY. - bigamist, n. big bath. Slang. A write-oil of significant costs, taken to shed an unprofitable business line or to remove the necessity for future write-offs. Big Board. 1. The New York Stock Exchange .• This sense of Big Board may have derived from the former name of the NYSE - New York Stock and Exchange Board. 2. A quotation display showing the current prices of securities listed on the New York Stock Exchange. big pot. See MAIN POT. bilagines (bI·lay-j~-neez). [Law Latin] Hist. Town bylaws; laws made by a town's inhabitants for their own government. bilan (bee-Iahn). [French "balance sheet"] Civil law. A book used by bankers and merchants to record all that they owe and all that is owed to them; a balance sheet. bilanciis deferendis (b~-lan-shee-is def-~r-en-dis). Hist. An obsolete writ ordering a corporation to carry weights to a given place to weigh wool licensed for transportation. bilateral, adj. (l8c) Affecting or obligating both parties . bilateral act. See ACT. bilateral advance pricing agreement. See ADVANCE PRICING AGREEMENT.

bilateral contract. See CONTRACT. bilateral mistake. See mutual mistake (1) under MISTAKE.

bilateral monopoly. See MONOPOLY. bilboes (bil-bohz). Hist. 1. A device for punishment at sea consisting of a board with holes that secure an offender's hands and feet. Cf. STOCKS. 2. An iron bar with sliding shackles for confining the ankles of prisoners, esp. on shipboard.

bill, n. (14c) 1. A formal written complaint, such as a court paper requesting some specific action for reasons alleged. 2. An equitable pleading by which a claimant brings a claim in a court of equity.• Before the merger oflaw and equity, the bill in equity was analogous to a declaration in law. The nine parts of every equitable bill are (1) the address to the person holding the great seal, (2) the introduction, which identifies the parties, (3) the premises, which state the plaintiff's case, (4) the confederating part, in which the defendants are charged with combination, (5) the charging part, in which the plaintiff may try to overcome defenses that the defendants may allege, (6) the jurisdictional clause, showing that the court has jurisdiction, (7) the interrogating part, inserted to try to compel a full and complete answer, (8) the prayer for relief, and (9) the prayer for process to compel the defendants to appear and answer. Also termed bill in equity. See DECLARATION (7). - Also termed bill in chancery; bill of chancery; bill of equity; bill for foreclosure. [Cases: Equity (';::::: 128-153.] "The statement of the plaintiff's cause of action in equity is called the bill. To this bill the defendant (unless he could protect himself by a demurrer or a plea) was obliged to put in an answer under oath." George Tucker Bispham,

The Principles of Equity: A Treatise on the System of Justice Administered in Courts of Chancery § 9, at 12 (11th ed. 1931).

bill for a new trial. A bill in equity to enjOin a judgment and to obtain a new trial because of some fact that would render enforcement of the judgment inequitable .• The fact must have been either unavailable or unknown to the party at trial through fraud or accident. Cf. MOTION FOR NEW TRIAL. [Cases: New Trial C=> 167.1 billfor redemption. See bill of redemption . bill in aid of execution. A bill filed by a judgment creditor to set aside a fraudulent encumbrance or COI1veyance. [Cases: Fraudulent Conveyances bill in perpetuam rei memoriam. See bill to perpetuate testimony. bill in the nature ofa bill ofreview. A postjudgment bill of review filed by someone who was neither a party to the original suit nor bound by the decree sought to be reversed. Also termed supplemental bill in the nature of a bill of review. [Cases: Equity (>442.] bill in the nature of a bill of revivor. A bill filed when a litigant dies or becomes incapacitated before the litigant's interest in property could be determined .• 'The purpose of the bill is to resolve who holds the right to revive the original litigation in the deceased's stead. [Cases: Equity (::::::303.] bill in the nature ofa supplemental bill. A bill bringing to court new parties and interests arising from events that occur after the suit is filed .• A supplemental bill, in contrast, involves parties or interests already before the court. [Cases: Equity C:::>294.] bill in the nature of interpleader. A bill of interpleader filed by a person claiming an interest in interpleaded property. [Cases: Interpleader C:::>23.J

185

bill

bill ofcertiorari. (18c) A bill in equity seeking removal of an action to a higher court. See CERTIORARI. [Cases: Certiorari ~42(.5).1 bill ofcomplaint. An original bill that begins an action in a court of equity. See COMPLAINT (1). [Cases: Equity (.::::'128-153.] "A suit in equity, under the procedure of the English Court of Chancery, which was generally adopted in the American States prior to the code, is instituted by the plaintiff filing a bill of complaint. The plaintiff is usually called the com· plainant, in the Federal courts the complainant or plaintiff indifferently. The bill is in substance a petition to the chancellor, or judge of the court of equity, setting forth at large the grounds of the suit, and praying the process of the court;its subpoena, to bring the defendant into court and compel him to answer the plaintiff's bill, and, also, for such relief by decree or interlocutory remedy, by way of injunction, etc., as the plaintiff supposes himself entitled to." Edwin E. Bryant, The Law of Pleading Under the Codes of Civil Procedure 55 (2d ed. 1899).

bill ofconformity. A bill filed by an executor or administrator who seeks the court's guidance in administering an estate. - The bill is usu. filed to adjust creditors' claims. bill of costs. (l6c) A certified, itemized statement of the amount of costs owed by one litigant to another, prepared so that the prevailing party may recover the costs from the losing party. Also termed cost bill. [Cases: Costs ~202; Federal Civil Procedure ~ 2742.1.]

bill of discovery. (17c) A bill in equity seeking disclosure of facts within the opposing party's knowledge. See DISCOVERY. [Cases: Equity C-=' 129.] bill of evidence. A transcript of testimony heard at trial. bill of exceptions. (l7c) 1. A formal written statement - Signed by the trial judge and presented to the appellate court - of a party's objections or exceptions taken during trial and the grounds on which they are founded. - These bills have largely been replaced by straight appeals under the Federal Rules of Civil Procedure. See EXCEPTION (1). [Cases: Exceptions, Bill of~ 1.]2. In some jurisdictions, a record made to preserve error after the judge has excluded evidence. bill offoreclosure. A bill in equity filed by a lender to have mortgaged property sold to satisfy all or part of the secured, unpaid debt. [Cases: Mortgages ~ 444.]

bill of interpleader. An original bill filed by a party against two or more persons who claim from that party the same debt or duty. - The requesting party asks the court to compel the contenders to litigate and establish their rights to the debt or the duty. See INTERPLEADER. [Cases: Interpleader C=23.] "The common law offered the stakeholder no relief, in that if he paid in good faith to one claimant, he might nevertheless be sued by and required to pay another claimant. And a judgment at law in favor of one claimant against the stakeholder was no defense to an action against the stakeholder by another claimant. However, in equity the bill or suit of interpleader offers him a remedy in that he

may interplead (bring) into one action all of the claim· ants, turn the money or property over to the court, be himself dismissed from the proceeding, and have the court deCide which of the claimants is entitled to the fund or property ...." William Q. de Funiak, Handbook of Modern Equ;ty§ 108, at 241-42 (2d ed. 1956).

bill ofpeace. (18c) An equitable bill filed by one who is threatened with multiple suits involVing the same right, or with recurrent suits on the same right, asking the court to determine the question once and for all, and to enjoin the plaintiffs from proceeding with the threatened litigation. - One situation involves many persons having a common claim but threatening to bring separate suits; another involves one person bringing a second action on the same claim. [Cases: Equity ~51(1).1 "By a bill of peace we are to understand a bill brought by a person to establish and perpetuate a right which he claims, and which, from its nature, may be controverted by differ· ent persons, at different times, and by different actions; or, where separate attempts have already been unsuccessfully made to overthrow the same right, and justice requires that the party should be quieted in the right, if it is already sufficiently established; or if it should be sufficiently established under the direction of the court. The obvious design of such a bill is to procure repose from perpetual litigation, and therefore, it is justly called a bill of peace." Joseph Story, Commentaries on Equity jurisprudence § 853, at 567 (W.E. Grigsby ed., 1st English ed. 1884). "If there was a dispute as to some right involving a mul-

tipliCity of persons (e.g., as to a man's right to take tolls, or to a right of way traversing many estates), a bill of peace could be brought in equity to establish the right and so secure repose from the prospect of incessant or multifarious litigation. Bills of peace have now in practice been superseded by modern procedural provisions for the joinder of parties and for representative actions." Robert E. Megarry & P.V. Baker, Snell's Principles of Equity 570 (27th ed. 1973).

bill ofprivilege. Rist. The formal process for suing an attorney or officer of the court. "Attorneys and all other persons attending the courts of justice (for attorneys, being officers of the court, are always supposed to be there attending) are not liable to be arrested by the ordinary processes of the court, but must be sued by a bill, called usually a bill of privilege, as being personally present in court." William BlaCkstone, 3 Commentaries on the Laws of England 289 (1768).

bill of redemption. A bill in equity filed to enforce a right to redeem real property, usu. following a mortgage foreclosure or a delinquent-tax sale. - Also termed bill for redemption. bill of review. (17c) A bill in equity requesting that a court reverse or revise a prior decree. [Cases: Equity (;:::=:c442.]

bill of revivor. (17c) A bill filed for the purpose of reviving and continuing a suit in equity when the suit has been abated before final consummation. 'Ibe most common cause of such an abatement is the death of either the plaintiff or the defendant. [Cases: Equity C=;> 303.] bill of revivor and supplement. A compound of a supplemental bill and a bill of revivor, joined for convenience. - Its distinct parts must be framed and

bill

proceeded on separately. [Cases: Equity (::::::>294309.] bill quia timet. An equitable bill used to guard against possible or prospective injuries and to preserve the means by which existing rights are protected from future or contingent violations. _ It differs from an injunction, which corrects past and present - or imminent and certain - injuries. One example is a bill to perpetuate testimony. See QUIA TIMET. [Cases: Equity (::::::> 17.] bill to carry a decree into execution. A bill brought when a decree could not be enforced without further court order because of the parties' neglect or for some other reason. - Also termed bill to enJorce a decree. [Cases: Equity C:J438.] bill to perpetuate testimony. (l8c) An original bill to preserve the testimony of a material witness who may die or leave the jurisdiction before a suit is commenced, or to prevent or avoid future litigation. Also termed bill in perpetuam rei memoriam. [Cases: Federal Civil Procedure c> 1293; Pretrial Procedure bill to suspend a decree. A bill brought to set aside a decree. [Cases: EquityC:~430.1 bill to take testimony de bene esse (dee or dJ bee-nee es-ee also day ben-ay es-ay). A bill brought to take testimony pertinent to pending litigation from a witness who may be unavailable at the time of triaL [Cases: Federal Civil Procedure (::::::> 1293; Pretrial Procedure cost bill. See bill oj costs. cross-bill. A bill brought by the defendant against the plaintiff in the same suit, or against other defendants in the same suit, relating to the matters alleged in the original bilL [Cases: Equity (::::::> 195-206.] nonoriginal bill. A bill relating to some matter already litigated by the same parties. - It is an addition to or a continuation of an original bilL original bill. A bill relating to some matter that has never before been litigated by the same parties with the same interests. [Cases: Equity C=) 128-153.] skeleton bill ojexceptions. A bill of exceptions that, in addition to the formal parts, contains only the court's directions to the clerk to copy or insert necessary documents into the record for appellate review, but does not contain the actual evidence or trial-court rulings. - For example, the statement "the clerk will insert the official transcript here" is typically a skeleton bilL [Cases: Exceptions, Bill of C='23.] supplemental bill. A bill filed for the purpose of adding something to an original bilL - This addition usu. results from the discovery of new facts or from a new understanding of facts after the defendant has put on a defense. [Cases: Equity (::::::>294-301.] supplemental bill in the nature of a bill oj review. See bill in the nature oj a bill oj review.

186

3. A legislative proposal offered for debate before its enactment. [Cases: Statutes (::::::>1-23.] administration bill. A bill drafted and submitted by the executive branch. appropriations bill. (18c) A bill that authorizes governmental expenditures. _ The federal government cannot spend money unless Congress has appropriated the funds. u.s. Canst. art. I, § 9, cl. 7. - Also termed spending bill. See APPROPRIATION (2), (3). [Cases: United States (::::::>85.] budget bill. A bill designating how money will be allocated for the following fiscal year. dean bill. A bill that has been changed so much by a legislative committee that it is better to introduce a new bill (a "clean" one) than to explain the changes made. Also termed committee substitute. companion bill. A bill introduced in the other house of a bicameral legislature in a substantially identical form. deficiency bill. An appropriations bill covering expenses omitted from the general appropriations bills, or for which insufficient appropriations were made. - An urgent deficiency bill covers immediate expenses usu. for one item, and a general deficiency bill covers a variety of items. engrossed bill. (ISc) 1. A bill in a form ready for final passage by a legislative chamber. 2. A bill in the form passed by one house of the legislature. See ENGROSS (3); ENGROSSMENT (2). "An engrossment is a proofreading and verification in order to be certain that the bill before the house is identical with the original bill as introduced with all amendments that have been adopted correctly inserted." National Conference of State Legislatures, Mason's Manual of Legislative Procedure § 735-2, at 525 (2000).

enrolled bill. (l8c) A bill passed by both houses of the legislature and signed by their presiding officers. See E:-.IROLL (2); ENROLLED-BILL RULE. [Cases: Statutes (::::::>37.] house bill. (often cap.) (1871) A legislative bill being considered by a house of representatives. - Abbr. H; H.B. money bill. See revenue bill. must-pass bill. Legislation of vital importance, such as an appropriation without which the government will shut down. - A must-pass bill will often attract unrelated riders. See RIDER. omnibus bill. (1840) 1. A Single bill containing various distinct matters, usu. drafted in this way to force the executive either to accept all the unrelated minor provisions or to veto the major provision. 2. A bill that deals with all proposals relating to a particular subject, such as an "omnibus judgeship bill" covering all proposals for new judgeships or an "omnibus crime bill" dealing with different subjects such as new crimes and grants to states for crime control.

187

bill broker

prefiled bill. A bill that has been drafted and submitted before a legislative session begins. private bill. A bill relating to a matter of personal or local interest only. Cf. special law under LAW. "A private Bill is a measure for the interest of some person or class of persons, whether an individual, a corporation, or the inhabitants of a county, town, parish, or other locality, and originates on the motion of some member of the [leg' islature] in which the Bill is introduced." Courtenay P. libert, Legislative Methods and Forms 28 (1901).

public bill. (ISc) A bill relating to public policy in the whole community. revenue bill. (ISc) A bill that levies or raises taxes .• Federal revenue bills must originate in the House of Representatives. U.S. Const. art. I, § 7, d. 1. - Also termed money bill. senate bill. (often cap.) (1S57) A legislative bill being considered by a senate. - Abbr. S.B. spending bill. See appropriations bill. 4. An enacted statute . 5. An itemized list of charges; an invoice . See FEE STATEMENT.

bill ofparcels. 1. A seller's itemized list of goods and prices. intended to assist a buyer in detecting any mistakes or omissions in a shipment of goods. 2. INVOICE.

bill payable. See account payable under ACCOUNT. bill receivable. See account receivable under ACCOUNT. bill rendered. See account rendered under ACCOUNT. 6. A bill of exchange; a draft . See DRAFT (1). [Cases: Bills and Notes P 1.) advance bill. A bill of exchange drawn before the shipment of the goods. banker's bill. See finance bill. blank bill. A bill with the payee's name left blank. Cf. DRAFT (1).

domestic bill. 1. A bill of exchange that is payable in the state or country where it is drawn. [Cases: Bills and Notes 128.] 2. A bill on which both the drawer and drawee reside within the same state or country. Also termed (in sense 2) inland bill of exchange. Cf. foreign bill. [Cases: Bills and NotesP13.] finance bill. A bill of exchange drawn by a bank in one country on a bank in another country to raise shortterm credit. • Finance bills are often issued in tight money periods, and usu. have maturity dates of more than 60 days. Also termed banker's bill; working capital acceptance. foreign bill. A bill of exchange drawn in one state or country and payable in another. Cf. domestic bill. [Cases: Bills and Notes P 13, 128. J inland bill ofexchange. See domestic bill (2). investment bill. A bill of exchange purchased at a discount and intended to be held to maturity as an investment.

7. A formal document or note; an instrument . "The expression 'bill of sale' includes bills of sale, assignments. transfers, declarations of trust without transfer, inventories of goods with receipts thereto attached, or receipts for purchase-monies of goods, and other assur· ances of personal chattels, and also powers of attorney, authorities, or licences to take possession of personal chattels as security for any debt, and also any agreement, whether intended or not to be followed by the execution of any other instrument, by which a right in equity to any personal chattels, or to any charge or security thereon, shall be conferred .... " Joshua Williams, Principles of the Law of Personal Property 60 (11th ed. 1881) (tracking the definition in the [U.K.] Bills of Sale Act of 1878). "A transfer may be either an absolute assignment by way of gift or sale, or an assignment by way of mortgage or security only; but in either case when a written document of any sort is used to effect the transfer, the document is called technically a 'bill of sale.''' Arthur Weldon & H. Gibson Rivington, Gibson's Conveyancing 302 (14th ed. 1933).

bill obligatory. A written promise to pay; a promissory note under seal. - Also termed single bond. See NOTE (1). [Cases: Bills and Notes (;:::::>41.] bill of debt. A debt instrument, such as a bill obligatory or promissory note. [Cases: Bills and Notes P2S.] bill oflading. See BILL OF LADING. bill penal. A written promise to pay that carries a penalty in excess of the underlying debt for failure to pay. Cf. bill single. bill single. A written promise to pay that is not under Also seal and has no penalty for failure to pay. termed Single bill. Cf. bill penal. grand bill of sale. 1. Hist. An instrument used to transfer title to a ship that is at sea. 2. An instrument used to transfer title of a ship from the builder to the first purchaser. single bill. See bill single. skeleton bill. A bill drawn, indorsed, or accepted in blank. 8. A piece of paper money . 9. A promissory note . [Cases: Bills and Notes (;:::::>28.) billable hour. (196S) A unit of time used by an attorney, law clerk, or paralegal to account for work performed and chargeable to adient. • Billable hours are usu. divided into quarters or tenths of an hour. [Cases: Attorney and Client C:> 140.] billable time. (1966) An attorney's, law clerk's, or paralegal's time that is chargeable to a client. Cf. NONBILLABLE TIME. [Cases: Attorney and Client P 140.J billa cassetur (bil-a kd-see-tar). See CASSETUR BILLA. billa excambii (bil-a eks-kam-bee-l). [Latin] See BILL OF EXCHANGE.

billa exonerationis (bit-a ig-zon-a-ray-shee-oh-nis). [LatinJ See BILL OF LADING. billa vera (bil-d veer-d). [Latin) See TRUE BILL. bill broker. A middleman who negotiates the purchase or sale of commercial paper.

Bill Chamber. Hist. Scots law. A division of the Court of Session in which some remedies could be granted. - The Lord Ordinary on the Bills presided over the court. It was abolished in 1933 and merged into the Court of Session. billeta (bil-;:J-t;:J). Rist. A proposed statute or petition presented in Parliament. billhead. A printed invoice containing a business's name and address. bill in aid of execution. See BILL (2). bill in equity. See BILL (2). billing cy~le. The period between billings for goods sold or services rendered. bill in perpetuam rei memoriam. See bill to perpetuate testimony under BILL (2). bill number. The number assigned to a proposed piece of legislation, typically designating the house in which it was introduced (S for senate or HR for house of representatives) followed by a sequential number. bill of adventure. Maritime law. A shipper's written statement that the shipped property belongs to another and is conveyed at the owner's risk. bill of attainder. (l7c) 1. Archaic. A special legislative act that imposes a death sentence on a person without a trial. 2. A special legislative act prescribing punishment, without a trial, for a specific person or group. _ Bills of attainder are prohibited by the U.S. Constitution (art.!' § 9, c1. 3; art. I, § 10, cl. 1). Also termed act of attainder. See ATTAINDER; BILL OF PAINS AND PENALTIES. [Cases: Constitutional Law ~ 1095.] bill of credit. 1. Legal tender in the form of paper, issued by a state and involving the faith of the state, designed to circulate as money in the ordinary uses ofbusiness. U.S. Const. art. I, § 10. [Cases: States (;::::::- 145.] 2. LETTER OF CREDIT.

bill of debt. See BILL (7). bill of entry. Maritime law. A written description of goods filed by an importer with customs officials to obtain permission to unload a ship's goods. bill of exchange. See DRAFT (1). bill of health. Maritime law. A statement certifying the healthy condition of a ship's cargo and crew. - The bill is issued by the port authority from which a vessel sails and is shown to the port authority at the ship's destination as proof that the ship's cargo and crew are disease-free. A "clean" bill states that no contagious or infectious diseases were present at the port; a "touched" or "foul" bill states that the named disease was suspected, anticipated, or actually present. [Cases: Shipping bill of indemnity. 1. Hist. An act of Parliament passed annually to protect officeholders who unwittingly fail to take a required oath from liability for acts done in an official capacity. - A more general statute, the Promissory Oaths Act, replaced the bill of indemnity in 1868. 2. A law protecting a public official from liability for

official acts. [Cases: Officers and Public Employees 114.] 3. An initial pleading by which a plaintiff seeks to require another (often an insurance company) to discharge the plaintiff's liability to a third person. bill of indictment. (16c) An instrument presented to a grand jury and used by the jury to declare whether there is enough evidence to formally charge the accused with a crime. See INDICTMENT; NO BILL; TRUE BILL.

bill of information. 1. INFORMATION. 2. Rist. A civil suit begun by the Crown or by those under its protection, such as a charity.

bill of interpleader. See BILL (2). bill oflading (layd-ing). (l6c) A document acknowledging the receipt of goods by a carrier or by the shipper's agent and the contract for the transportation of those goods; a document that indicates the receipt of goods for shipment and that is issued by a person engaged in the business of transporting or forwarding goods. UCC § 1-201(6). - A negotiable bill oflading is a document of title. - Abbr. B/L. - Cf. WAYBILL; AIRBILL. [Cases: Carriers Shipping C:=', 106.] "A bill of lading may be regarded in three several aspects. (l) It is a receipt given by the master of a ship acknowledg-

ing that the goods specified in the bill have been put on board; (2) it is the document [that] contains the terms ofthe contract for the carriage of the goods agreed upon between the shipper of the goods and the shipowner (whose agent the master of the ship is); and (3) it is a 'document of title' to the goods, of which it is the symbol. It is by means of this document of title that the goods themselves may be dealt with by the owner of them while they are still on board ship and upon the high seas." William R. Anson, Principles of the Law of Contract 380 (Arthur L. Corbin ed .• 3d Am. ed. 1919).

bearer bill of lading. A negotiable bill oflading that authorizes the carrier or holder of freight to deliver it to the bearer. claused bill of lading. See unclean bill o.flading. clean bill oflading. A bill oflading containing no clause or notation qualifying the bill's terms. - Possible clauses or notations could include a provision for deck storage or a recording of cargo damage. Cf. unclean bill of lading. [Cases: Carriers ~52(2).1 destination bill oflading. A bill procured to be issued at the destination point or any other place than the place of shipment. UCC § 7-305. [Cases: ShippingC:::, 106(3).] foul bill of lading. See unclean bill of lading. long-form bill oflading. A bill oflading that expressly contains all the terms of the transportation contract. Cf. short-form bill of lading. negotiable bill oflading. A bill oflading calling for the delivery of goods to the bearer or to a named person's order. UCC § 7-104. [Cases: Carriers ~54; Shipping ~106(5).1

nonnegotiable bill of lading. See straight bill of lading.

189

bill of sight

ocean bill oflading. A negotiable bill oflading used in shipment by water. - Often shortened to ocean bill. [Cases: Shipping (:::::c 106.J onboard bill of lading. A bill oflading reflecting that goods have been loaded onto a ship.• In multimodal shipments, an on board bill of lading may include goods loaded onto land vehicles also. Often shortened to onboard bill. order bill of lading. A negotiable bill oflading stating that the goods are consigned to the order of the person named in the bilL [Cases: Carriers 054.J overseas bill oflading. A bill oflading used for overseas shipment by water or air. UCC § 2-323 .• In air freight, an overseas bill of lading is called an air waybill. Often shortened to overseas bill. [Cases: Shipping C=~ 106(1).J short-form bill of lading. A bill of lading that does not expressly contain all the terms of the transportation contract, but incorporates them by reference to another document, usu. one at the office of the carrier. [Cases: Shipping (:::::c 140.J spent bill of lading. A negotiable bill of lading that is not produced, canceled, or surrendered after the carrier has delivered the goods. - Often shortened to spent bill. straight bill of lading. A nonnegotiable bill of lading that specifies a consignee to whom the carrier is contractually obligated to deliver the goods .• In some countries, including England, a document is not a bill oflading unless it is negotiable. - Also termed nonnegotiable bill of lading. [Cases: Carriers . 2. Responsibility for something wrong . blame, vb. - blameworthy, blamable, adj. blanc seign (blahnk sayn). [Law French] Civil law. A Signed paper entrusted to someone with the power to bind the signer within the limits of the agreement between the signer and the grantee. See POWER OF ATTORNEY

(1).

blank. Parliamentary law. 1. A ballot cast without a vote, effectively an abstention. 2. A name, number, time, or other term left open in a motion, to be filled in by vote after taking proposals from the floor.• An election is a common form of filling a blank: each nomination is effectively a proposal for filling the blank in the is elected." See CREATE question, "Resolved, That A BLANK; FILL A BLANK.

blank acceptance. See ACCEPTANCE (4). blank bar. Hist. A plea in bar interposed by a defendant in a trespass action. - This type of plea was filed to compel the plaintiff to state exactly where the alleged trespass occurred. - Also termed common bar. blank bilL See BILL (6). blank bond. See BOND (2). blank check. See CHECK. blank consent. A general authorization from a natural parent who voluntarily relinquishes a child for private adoption and allows adoption proceedings without further consent. - Jurisdictions are divided over whether a blank consent is valid if the natural parents do not identify and approve the prospective adoptive parents. - Also termed blanket consent; general 7.5.] consent. [Cases: Adoption blanket agreement. Labor law. A collective-bargaining agreement that applies to workers throughout an orga-

nization, industry, or geographical area. [Cases: Labor and Employment (;=:; 1288.] blanket bond. See BOND (2). blanket contract. See CONTRACT. blanket license. See LICENSE. blanket lien. See LIEN. blanket mortgage. See MORTGAGE. blanket order. 1. A judicial order that covers a broad subject or class. Also termed umbrella order. See ORDER (2). 2. See blanket protective order under PROTECTIVE ORDER. 3. An order negotiated by a customer with a supplier for multiple purchases and deliveries of specified goods over a stated period, as an alternative to placing a separate order for each transaction. - Also termed blanket purchase agreement; blanket purchase order. See PURCHASE AGREEMENT; PURCHASE ORDER. [Cases: Records blanket policy. See INSURANCE POLICY. blanket protective order. See PROTECTIVE ORDER. blanket purchase agreement. See BLANKET ORDER (3). blanket purchase order. See BLANKET ORDER (3). blanket search warrant. See SEARCH WARRANT. blank form. Copyright. A form, usu. one for record keeping and business purposes, that does not convey information until it has been filled in .• Blank forms are not eligible for copyright protection. Also termed business form. See BLANK-FORMS RULE. [Cases: Copyrights and Intellectual Property G'=' 10.4.] blank-forms rule. Copyright. TIle principle that forms are not protectable by copyright if they are deSigned for recording information but do not themselves convey any information. _ The rule, first promulgated by the U.S. Supreme Court in Baker v. Selden, 101 U.S. 99 (1880), is now a U.S. Copyright Office regulation, 37 CFR § 202.1(c). See MERGER DOCTRINE (1). [Cases: 10.4.] Copyrights and Intellectual Property blank indorsement. See INDORSEMENT. blank stock. See STOCK. blasphemy (blas-f;:l-mee), n. (13c) Irreverence toward God, religion, a religious icon, or something else considered sacred.• Blasphemy was a crime at common law and remains so in some U.S. jurisdictions, but it is rarely if ever enforced because of its questionable constitutionality under the First Amendment. Cf. PROFANITy. [Cases: Criminal Law (.'='45.20.] - blaspheme (blas-feem or blas-feem), vb. - blasphemous (blas-fdm;:ls), adj. blasphemer (bias-fcc-mJr), n. "Blasphemy is the malicious revilement of God and religion. In England blasphemy was the malicious revilement of the Christian religion .... Blasphemy has been held to be a common·law crime [in the United States] because of its tendency to stir up breaches of the peace. It is expressly made punishable by some of the statutes." Rollin M. Perkins & Ronald N. Boyce, Criminal Law 474,475 (3d ed. 1982).

blended family. See FAMILY. blended fund. See FUND (1).

blended sentence. See SENTENCE. blended trust. See TRUST. blending clause. (1947) A provision in a will disposing of both the testator's own property and the property over which the testator has a power of appointment, so that the two types of property are treated as a unit. [Cases: Wills ~589.] blind bidding. Copyright. In the licensing of movies for first-run engagements, the practice by film distributors of requiring theater owners to bid for and book movies without haVing seen them .• By statute, some states prohibit blind bidding. lCases: Antitrust and Trade Regulation blind entry. See ENTRY (2). blind pig. See BLIND TIGER. blind plea. See PLEA (1). blind selling. (I946) The sale of goods without giving a buyer the opportunity to examine them. blind tiger. Slang. A place where intoxicants are illegally sold .• This term was commonly used during Prohibition. Also termed blind pig. See PROHIBITION (3). blind trust. See TRUST. bloc. (I903) A group of persons or political units aligned with a common interest or purpose, even if only temporarily . block, n. (18c) 1. A municipal area enclosed by streets . See LOT (1). 2. A quantity of things bought or sold as a unit . 3. SQUARE (1). blockade. Int'llaw. A belligerent's prevention of access to or egress from an enemy's ports by stationing ships to intercept vessels trying to enter or leave those ports. • To be binding, a blockade must be effective that is, it must be maintained by a force sufficient to prevent access to ports. Also termed simple blockade; de facto blockade. [Cases: War and National Emergency~· 19.] "A blockade must be existing in point of fact; and in order to constitute that existence. there must be a power present to enforce it. All decrees and orders, declaring extensive coasts and whole countries in a state of blockade. without the presence of an adequate naval force to support it, are manifestly illegal and void, and have no sanction in public law." 1 James Kent, Commentaries on American Law *144 (George Comstock ed., 11th ed. 1866). "The word blockade properly denotes obstructing the passage into or from a place on either element, but is more especially applied to naval forces preventing communication by water. Unlike siege it implies no intention to get possession of the blockaded place. With blockades by land or ordinary Sieges neutrals have usually little to do," Theodore D. Woolsey, Introduction to the Study of IntemQtional Law § 202, at 351 (5th ed. 1878).

pacific blockade. Int'llaw. A blockade that is established without a declaration of war. public blockade. Int'llaw. An established blockade of which the blockading nation gives formal notice to the governments of neutral nations. [Cases: War and National Emergency C:::c~ 19(2).1

blockage rule. Tax. The principle that a large block of stock shares may be valued at less than the total value of the individual shares because such a large block may be difficult to sell at full price. [Cases: Internal Revenue (;:::'4534; Taxation ~3531.] block booking. n. Copyright. In the licensing or use of movies, the practice by film distributors of conditioning the license or use on the acceptance of an entire package or block of films, which typically includes unwanted or inferior films .• In United States v. Loew's Inc., 371 U.S. 38, 83 S.Ct. 97 (1962), the U.S. Supreme Court condemned block booking as an illegal tying arrangement that violates the Sherman Act. [Cases: Antitrust and Trade Regulation Blockburger test. Crimina/law. A test, for double-jeopardy purposes, of whether a defendant can be punished separately for convictions on two charges or prosecuted later on a different charge after being convicted or acquitted on a charge involving the same incident; a comparison of two charges to see if each contains at least one element that the other does not. • Although the test is frequently called the same-evidence test, that term is misleading since the analysis involves the elements of the charged offenses rather than the facts of the incident. Blockburger v. U.S., 284 U.S. 299, 304, 52 S.Ct. 180, 192 (1932). - Also termed same-elements test; actual-evidence test. Cf. SAME-CONDUCT TEST; SAME-TRANSACTION TEST. [Cases: Double Jeopardy 135,136.] blockbusting. (1954) The act or practice, usu. by a realestate broker, of persuading one or more property owners to sell their property quickly, and often at a loss, to avoid an imminent influx of minority groups. • Blockbusting is illegal in many states. lCases: Brokers C=' 1,4; Civil Rights ~ 1076.] blocked account. See ACCOlJNT. blocked currency. See CURRENCY. blocked income. See INCOME. block grant. An unrestricted grant of federal funds. [Cases: United States blocking patent. See PATENT (3). block interest. See add-on interest under INTEREST (3). block policy. See INSURANCE POLICY. block voting. A shareholders' agreement to cast their votes in a single block. See voting trust under TRUST. Blonder-Tongue doctrine. Patents. The rule that a patentee is barred by collateral estoppel from relitigating the validity of a patent that has been held invalid in an earlier proceeding in which the patentee had a full and fair opportunity to litigate the patent's validity.• The rule was adopted by the U.S. Supreme Court in Blonder-Tongue Laboratory, Inc. v. University of Illinois, 402 U.S. 313, 91 S.Ct. 1434 (1971). - Also termed Blonder-Tongue rule. [Cases: Patents ~327(l3).1 blood. (Be) A relationship between persons arising by descent from a common ancestor. See RELATIVE.

entire blood. See full blood. full blood. (1812) The relationship existing between persons having the same two parents; unmixed ancestry. Also termed whole blood; entire blood. half blood. (l7c) The relationship existing between persons having the same father or mother, but not both parents in common. - Sometimes written halfblood. See relative of the half blood under RELATIVE. [Cases: Descent and Distribution heritable blood. Hist. A relationship between an ancestor and an heir that the law recognizes for Also purposes of passing good title to property. termed j'nheritable blood. [Cases: Descent and Distribution mixed blood. (1817) Archaic. The relationship between persons whose ancestors are of different races or nationalities. "The term 'mixed bloods,' as used in treaties and statutes, has been held to include persons of half. or more or less than half, Indian blood. derived either from the father or from the mother." 42 C.J,5. Indians § 3 (1991).

whole blood. See full blood. blood, corruption of the. See CORRUPTlO:-r OF BLOOD. blood alcohol content. (1926) The concentration of alcohol in one's bloodstream, expressed as a percentage. - Blood alcohol content is used to determine whether a person is legally intoxicated, esp. under a drivingwhile-intoxicated law. In many states, a blood alcohol content of .08% is enough to charge a person with an offense. Abbr. BAC. - Also termed blood alcohol count; blood alcohol concentration. See DRIVI:'llG UNDER THE DRIVING WHILE INTOXICATED. [Cases: 411.] Automobiles blood border. Slang. The dividing line between adjoining states that have different minimum drinking ages. _ The term derives from the fact that juveniles from the state with the higher minimum age drive to the state with a lower minimum age, purchase and consume alcohol, and drive home intoxicated. blood diamond. See CONFLICT DIAMOND. blood feud. See FEUD (4). blood-grouping test. (1930) A test used in paternity and illegitimacy cases to determine whether a particular man could be the father of a child, examples being the genetic-marker test and the human-leukocyte antigen test. _ The test does not establish paternity; rather, it eliminates men who could not be the father. See PATERNITY TEST; GENETIC-MARKER TEST; HUMAN-LEUKOCYTE ANTIGEN TEST.

[Cases; Children Out-of-Wedlock

blood money.!. Hist. A payment given by a murderer's family to the next of kin of the murder victim. Also termed wer. 2. A reward given for the apprehension of a person charged with a crime, esp. capital murder. blood relative. See RELATIVE. blood test. The medical analysis of blood, esp. to establish paternity or (as required in some states) to test for

sexually transmitted diseases in marriage-license applicants. See SEROLOGICAL TEST. Children Out-of· Wedlock ~45, 58; Marriage bloodwite. Hist. I. EFFUSIO SANGUINIS (1). 2. EFFUSIO SANGUINIS (2). 3. The right to levy a fine involving the shedding of blood. 4. The exemption from the payment of a fine involving the shedding of blood. 5. Scots law. A penalty for a brawl or riot in which blood is shed. blotter. I. See ARREST RECORD. 2. See WASTE BOOK. BLS. abbr. BUREAU OF LABOR STATISTICS. blue-blue-ribbon jury. See blue-ribbon jury under JURY.

Blue Book. 1. A compilation of session laws. See SESSION LAWS (2). 2. A volume formerly published to give parallel citation tables for a volume in the National Reporter System. 3. English law. A government publication, such as a Royal Commission report, issued in a blue paper cover. Bluebook. The citation guide formerly titled A Uniform that is generally considered the System of Citation authoritative reference for American legal citations. The book's complete title is The Bluebook: A Uniform System of Citation. Although it has been commonly called the Bluebook for decades, the editors officially included Bluebook in the title only in the mid-1990s. The book is compiled by the editors of the Columbia Law Review, the Harvard Law Review, the University ofPennsylvania Law Review, and The Yale Law Journal. Cf. ALWD CITATION MANUAL. bluebook, vb. To ensure the conformity of citations with The Bluebook: A Uniform System of Citation. blue books. See SESSION LAWS. blne chip, n. A corporate stock that is considered a safe investment because the corporation has a history of stability, consistent growth, and reliable earnings. The term is said to come from poker, in which the blue chips usu. have the highest value. Also termed bluechip stock. - blne-chip, adj. blue law. (1762) A statute regulating or prohibiting commercial activity on Sundays. - Although blue laws were formerly common, they have declined since the 19805, when many courts held them invalid because of their origin in religion (Le., Sunday being the Christian Sabbath). Blue laws usu. pass constitutional challenge if they are enacted to support a nonreligiOUS purpose, such as a day of rest for workers. Also termed Sunday law; Sunday-closing law; Sabbath law; Lord's Day Act. [Cases: Sunday. blue-sky, adj. (1906) (Of a security) having little value. • The term was first used in reference to the assets at issue in Lowell v. People, BIll!. App. 137 (1907) ("hot air and blue sky"). blue-sky law. (1912) A state statute establishing standards for offering and selling securities, the purpose being to protect citizens from investing in fraudulent schemes or unsuitable companies .• Such a statute typically includes provisions for licensing brokers, registering securities, and formal approvals of the offerings by the appropriate government agencies. [Cases: Securities Regulation C:::>248-273.J "Although the public is probably more aware of the existence and operation of the several federal statutes administered by the Securities and Exchange Commission, most state legislation in this area is broader in scope. State securities laws, commonly referred to as 'blue sky' laws, were enacted long before the Securities Act of 1933, and Congress specifically preserved these laws instead of attempting to preempt the field for federal legislation." Louis Loss & Edward M. Cowett, Blue Sky Law 3 (1958). "The first legislative attempts to regulate securities transactions were effected on the state level, with the first general securities law being said to have been enacted by the State of Kansas in 1911, and with 48 jurisdictions having enacted such statutes by 1933. These statutes were said to be enacted to stop the sale of stock in fly-by-night concerns, visionary oil wells, distant gold mines, and other fraudulent exploitations. A similar description of the early legislative purpose is that such acts were aimed at 'speculative schemes which have no more basis than so many feet of blue sky,' and this description has had a lasting influence in that state securities acts are commonly referred to as 'blue sky laws,'" 69A Am. Jur. 2d Securities Regulation State § 1 (1993). "The state legislatures entered the arena of securities regulation more than twenty years before Congress .... [T] he statutes, which vary widely in their terms and scope, are commonly referred to as 'blue sky' laws. an appellation with several suggested origins. It has been said, for example, that the Kansas legislature was spurred by the fear of fast-talking eastern industrialists selling everything including the blue sky." 1 Thomas Lee Hazen, Treatise on the Law of Securities Regulation § 8.1, at 490-92 (3d ed. 1995).

bluewater seaman. See able-bodied seaman under SEAMAN.

blurring, n. Trademarks. A form of dilution in which goodwill in a famous mark is eroded through the mark's unauthorized use by others on or in connection with dissimilar products or services .• Blurring is one type of dilution that is actionable under the Federal Trademark Dilution Act, 15 USCA § 1125(c). - Also termed dilution by blurring; diminution. Cf. TARNISHMENT. [Cases: Trademarks 1462.] "Blurring is a lessening of the fame possessed by a famous mark. One might begin to think about blurring by recalling 'free association' exercises or games, in which one player says a word and the other player must respond instantly with the first word that pops into his or her head, By definition, a strong or famous mark is likely to produce both a prompt and a uniform 'free association' response when mentioned to most consumers. Thus when I say ROLEX, you-and almost everyone else-will likely say 'watches.' ... On the other hand, a weak mark will produce no response at all, or a variety of responses from different consumers .... If the owners of the ROLEX mark had no way to prevent the use of that mark on pencils, or pianos, or pistachio nuts. because those products are so remote from watches that they could not prove any likelihood of confusion, eventually, the automatic free association of the ROLEX mark with watches, and watches alone, would be destroyed. The mark would be less famous than before. It would be blurred." Roger E. Schechter & John R. Thomas, Intellectual Property § 30.3. at 710-11 (2003).

BMI. abbr. BROADCAST MUSIC, INC. board. 1. A group of persons having managerial, supervisory, or advisory powers .• In parliamentary law, a board is a form of deliberative assembly and is distinct from a committee - which is usu. subordinate to a board or other deliberative assembly - in haVing greater autonomy and authority. 2. Daily meals furnished to a guest at an inn, boardinghouse, or other lodging . [Cases: Contracts 3. BOARD OF DIRECTORS. board-certified, adj. (1938) (Of a professional) recognized by an official body as a specialist in a given field oflaw or medicine . See BOARD OF LEGAL SPECIALIZATION. board lot. See round lot under LOT (3). board of adjustment. See ADJUSTMENT BOARD. board of aldermen. See CITY COUNCIL. Board of Appeals. Patents & Trademarks. Hist. A quasijudicial body within the U.S. Patent and Trademark Office that was empowered to hear appeals by applicants whose patent applications had been wholly or partially rejected by patent examiners. - Its work is now done by the Board of Patent Appeals and Interferences. See BOARD OF PATENT APPEALS A.:--ID INTERFERENCES.

board of directors. (18c) 1. The governing body of a corporation, elected by the shareholders to establish corporate policy, appoint executive officers, and make major business and financial decisions. - Also termed (esp. in charitable organizations) board of trustees. See DIRECTOR. [Cases: Corporations C=>297.] 2. The

197

governing body of a corporation, partnership, association, or other organization, elected by the shareholders or members to establish policy, elect or appoint officers and committees, and make other governing decisions. - Often shortened (informally) to board. - Also termed board ofgovernors; board of managers; board of trustees (esp. in charitable and educational organizations); executive board. See DIRECTOR.

staggered board of directors. A board of directors whose members' terms of service overlap so that only part of the board's makeup is voted on in any single election. _ Typically, members serve terms of two or more -years, with some members' terms expiring at each annual election. See Del. Code Ann. tit. 8, § 141 (1991) (authorizing classified boards with two or three classes having two- or three-year terms). Also termed classified board of directors. [Cases: Corporations (;:= 291.] board of education. A state or local agency that governs and manages public schools within a state or local district. Cf. SCHOOL BOARD. [Cases: Schools board of equalization. See EQUALIZATION BOARD. board of examiners. See EXAMINING BOARD. board of fire underwriters. Insurance. An unincorporated voluntary association made up of fire insurers. [Cases: Insurance 513.] 2. A body that reviews property-tax assessments. [Cases: Taxation (;::J2653-2682.] 3. In some cities, a board that reviews allegations of police misconduct. [Cases: Municipal Corporations 185(12).] Board of Tax Appeals. See TAX COURT, U.s. board oftrade. 1. A federation of business executives dedicated to advancing and protecting business interests. 2. An organization that runs a commodities exchange. See CHICAGO BOARD OF TRADE. [Cases: Commodity Futures Trading Regulation G=~6.] 3. Hist. The Lords of the Committee of the Privy Council that had jurisdiction over trade and foreign plantations. Today, the responsibilities once assigned to this committee are carried out by the Ministry for Trade and Industry. board of trustees. See BOARD OF DIRECTORS. Board of Veterans' Appeals. The agency in the U.S. Department of Veterans' Appeals responsible for reviewing decisions on entitlements to veterans' benefits. _ The Board's decisions are subject to review by the U.S. Court of Appeals for Veterans Claims. Abbr. BVA. [Cases: Armed Services (;:=135,154.] board of zoning appeals. See ADJUSTMENT BOARD.

boatable, adj. See NAVIGABLE. boatable water. See NAVIGABLE WATER (1). boc (bok), n. Hist. A written document, esp. one that conveys land. - Also spelled bock. bockland. See BOOKLAND. bocland. See BOOKLAND. bodily harm. See HARM. bodily heir. See heir of the body under HEIR. bodily injury. See INJURY. body. (15c) l. The main part of a written instrument, such as the central part of a statute (after the title and preamble) or the middle part of a complainant's bill in equity. 2. A collection oflaws. - Also termed body of laws. See CORPUS JURIS. 3. An artificial person created by a legal authority. See CORPORATION. 4. An aggregate of individuals or groups. See BODY POLITIC. 5. A deliberative assembly . See deliberative assembly under ASSEMBLY. 6. An aggregate of individuals or groups <student body>. 7. BODY OF A CLAIM. body corporate. See CORPORATION. body execution. l. See CAPIAS. 2. See EXECUTION. body of a claim. Patents. The portion of a patent claim that defines the elements or steps of the invention .• The body of the claim follows the preamble and transition phrase. In a combination claim, the body of a claim sets forth the elements of a patentable combination. Cf. PREAMBLE (2); TRANSITION PHRASE. [Cases: Patents C=> 101(1).] body of a county. A county as a whole. body oflaws. See BODY (2). body politic. (ISc) A group of people regarded in a political (rather than private) sense and organized under a common governmental authority. body-snatching, n. The unlawful removal of a corpse, esp. from a grave. - body-snatcher, n. bogus (boh-g;ls), adj. Not genuine; counterfeit; SPURIOUS (1). Cf. GENUINE. bogus check. See bad check under CHECK. bogus will. See WILL. boilerplate, n. (1893) l. Ready-made or all-purpose language that will fit in a variety of documents .• Originally, the term may have denoted a steel plate affixed to a boiler. But the modern sense comes from copy and artwork etched on metal plates (or molds made from a master plate) and distributed to newspapers and printers. The copy could not be edited. 2. Fixed or standardized contractual language that the proposing party often views as relatively nonnegotiable. [Cases: Contracts 1.] - boilerplate, adj. boiler-room transaction. (1988) Slang. A high-pressure telephone sales pitch, often of a fraudulent nature. Cf. PHISHING; TELESCAM.

Bolger test. The judicial test for determining whether a statement is commercial speech, by examining (1)

whether it is an advertisement; (2) whether it refers to a specific product or service; and (3) whether the speaker has an economic motivation for making the statement. Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60,66-67, 103 S.Ct. 2875, 2879-80 (1983) .• An affirmative answer to all three questions is "strong support" that the speech is commercial, but it is not dispositive; rather, the decision should be based on common sense. [Cases: Constitutional LawC=>1536.] bolster, vb. To enhance (unimpeached evidence) with additional evidence .• This practice is often considered improper when lawyers seek to enhance the credibility of their own witnesses. [Cases: Witnesses C=>318.] bolts. Hist. Student-argued cases in the Inns of Court. • These practice cases were held privately, in contrast to the more formal and public moots. - Also termed boltings. bombardment. Int'llaw. An attack from land, sea, or air with weapons that are capable of destroying enemy targets at a distance with bombs, missiles, or projectiles. bona (boh-n;l), n. [Latin "goods"] Chattels; personal property. Cf. BIENS. bona adventitia (boh-n;l ad-ven-tish-ee-;l). [Latin] 1. Roman law. Goods acquired by free persons in some way other than through their paterfamilias, or by slaves in a way other than through their owner. 2. Civil law. Goods acquired fortuitously, but not by inheritance. - Also spelled bona adventicia. - Also termed adventitia bona. bona confiscata (boh-n;l kon-fi-skay-t;l). Goods confiscated by - or forfeited to - the Crown. bonafelonum (boh-n;l f;l-loh-n;lm). Personal property belonging to a convicted felon. bona forisfacta (boh-n;l for-is-fak-t;l). Forfeited goods. bona fugitivorum (boh-m fyoo-j;l-ti-vor-;lm). Goods belonging to a fugitive. - Also termed bona utlagatorum. bona immobilia (boh-n;l i-moh-bil-ee-;l). Immovable property. bona mobilia (boh-n;l moh-bil-ee-;l). [Latin] Movable property. See MOVABLE. bona notabilia (boh-n;l noh-t;l-bil-ee-;l). Notable goods; property worth accounting for in a decedent's estate. [Cases: Executors and Administrators C=> 11, 12.] bona paraphernalia (boh-n;l par-;l-f;lr-nay-Iee-;l). Clothes, jewelry, and ornaments not included in a married woman's dowry.

bona peritura (boh-n;l per-;l-t[y]uur-;l). Perishable goods; goods that an executor or trustee must diligently convert into money. bona utlagatorum (boh-n;l ;It-Iay-g;l-tor-;lm). See bona fugitivorum.

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bona vacantia (boh-nd vd-kan-shee-51, 122.] junior bond. A bond subordinate in priority to another bond. junk bond. (1974) See high-yield bond. leasehold-mortgage bond. A bond issued by a lessee and secured by the lessee's leasehold interest. Lloyd's bond. Hist. English law. A corporate bond issued on work done or goods delivered .• A bond issued in this manner avoids any restriction on indebtedness existing either in law or in corporate bylaws. The term supposedly derives from an English lawyer named Lloyd, who is credited with devising the method. mortgage bond. A bond secured by the issuer's real property. multimaturity bond. See put bond. municipal bond. (1858) A bond issued by a nonfederal government or governmental unit, such as a state bond to finance local improvements .• The interest received from a municipal bond may be exempt from federal, state, and local taxes. - Often shortened (in plural) to municipals; munies. - Also termed municipal security. Cf. ex legal municipal bond. [Cases: Municipal Corporations C="o91 1.] noncallable bond. See noncallable security under SECURITY.

non-interest-bearing bond. See discount bond. nonstatutory bond. See voluntary bond. obligation bond. See general obligation bond.

205 open-end mortgage bond. A mortgage bond that can be used as security for another bond issue. optional bond. A bond that the holder may redeem before its maturity date if the issuer agrees. option tender bond. See put bond. participating bond. A bond that entitles the holder to a share of corporate profits but does not have a fixed interest rate. passive bond. A bond bearing no interest. See passive debt under DEBT. [Cases: Bonds perpetual bond. See annuity bond. post-obit bond. An agreement by which a borrower promises to pay to the lender a lump sum (exceeding the amount advanced) upon the death of a person whose property the borrower expects to inherit. Equity traditionally enforces such bonds only if the terms are just and reasonable. Also termed postobit agreement. premium bond. (1871) A bond with a selling price above face or redemption value. See PREMIUM (3). put bond. A bond that gives the holder the right to redeem it for full value at specified times before maturity. - Also termed multimaturity bond; option tender bond. Cf. put option under OPTION. railroad-aid bond. A bond issued by a public body to fund railway construction. redeemable bond. A bond that the issuer may call for payment. - Also termed callable bond. re-funding bond. A bond that retires an outstanding bond. [Cases: Municipal Corporations registered bond. (1865) A bond that only the holder of record may redeem, enjoy benefits from, or transfer to 86.] another. Cf. bearer bond. [Cases: Bonds reorganization bond. See adjustment bond. revenue bond. A government bond repayable from public funds. - Also termed improvement bond. [Cases: Municipal Corporations C:::>950(15).] savings bond. (1948) A nontransferable bond issued by the U.S. government. - Also termed government bond. [Cases: United States C:::>91.] school bond. A bond issued by a city or school district to fund school construction. [Cases: Schools secured bond. (1849) A bond backed by some type of security. Cf. DEBENTURE (1), (3). [Cases: Corporations C:::>473.]

serial bond. (1889) A bond issued concurrently with other bonds having different maturity dates. series bonds. (1920) A group of bonds issued under the authority of the same indenture, but offered publicly at different times and with different maturity dates and interest rates. single bond. See bill obligatory under BILL (7).

bonded debt

sinking-fund bond. A bond backed by a sinking fund for bond redemption. See sinkingfund under FUND (1). [Cases: Municipal Corporations special-tax bond. A municipal bond secured by taxes levied for a specific governmental purpose, usu. improvements. - Also termed special-assessment bond. [Cases: Municipal Corporations state bond. A bond issued by a state. 147.1

statutory bond. A bond given in accordance with a statute. [Cases: Bonds (;31,50.] subordinated bond. See junior bond. tax-exempt bond. A bond that pays tax-free interest. [Cases: Internal Revenue C:::>3132.l0; Taxation 3410,3462.]

term bond. A bond that matures concurrently with other bonds in that issue. TIPS bond. See TREASURY BOND. Treasury bond. See TREASURY BOND. unsecured bond. See DEBENTURE (3). voluntary bond. A bond not required by statute but given anyway. - Also termed nonstatutory bond. Z-bond. See accrual bond. zero-coupon bond. (1979) A bond paying no interest. - It is sold at a discount price and later redeemed at face value, the profit being the difference. Also termed passive bond. See zero-coupon security under SECURITY.

bond, vb. (16c) 1. To secure payment by providing a bond . 2. To record the name of (a person arrested)

207

boon day

in a sequential list of police arrests, with details of the person's identity (usu. including a photograph and a fingerprint), particulars about the alleged offense, and the name of the arresting officer . 3. To engage (someone) contractually as a performer or guest . See BOOKING CONTRACT.

book account. See ACCOUNT. book entry. (ISc) 1. A notation made in an accounting journaL 2. The method of reflecting ownership of publicly traded securities whereby a customer of a brokerage firm receives confirmations of transactions and monthly statements, but not stock certificates. See CENTRAL CLEARING SYSTEM. [Cases: Brokers 26.] book-entry bond. See BOND (3). book equity. The percentage of a corporation's book value allocated to a particular class of stock. Cf. BOOK VALUE; MARKET EQUITY.

bookie. See BOOKMAKER. booking contract. An agreement by which an actor or other performer is engaged. bookkeeping, n. (l7c) The mechanical recording of debits and credits or the summarizing of financial information, usu. about a business enterprise. Cf. ACCOUNTING.

double-entry bookkeeping. A method of bookkeepin which every transaction recorded by a business involves one or more "debit" entries and one or more "credit" entries .• The debit entries must equal the credit entries for each transaction recorded. single-entry bookkeeping. A method of bookkeeping in which each transaction is recorded in a single record, such as a record of cash or credit accounts. bookland (buuk-Iand). Hist. Land held under royal charter or deed; freehold land .• This was a privileged form of ownership (usu. free of the customary burdens on land) generally reserved for churches and leaders. Also spelled boc/and; bockland. - Also termed charterland. Cf. LOANLAND; FOLKLAND. "Charter-land is such as a man holds by charter, that is, by evidence in writing, which otherwise is called freehold. .. [Tlhis land was held with more easy and commodious conditions, than folkland and copy-hold land held without writing; ... it is a free and absolute inheritance; whereas land without writing is charged with payment and bondage; so that for the most part noblemen and persons of quality possess the former, and rustics the other. The first we call freehold and by charter: the other, land at the will of the lord." Termes de la Ley 80 (1st. Am. ed. 1812). "From very early times it was common to make grants of land to religious bodies or to individuals. The grants were effected by the king as the chief of the community, with the consent of the great men, who in conjunction with the great ecclesiastics, after the introduction of Christianity, formed the Witenagemot, or Assembly of the Wise. The grant was made by means of a 'book' or charter. Land thus granted was said to be 'booked' to the grantee, and was called bocland or bookland. Thus bookland comes to mean

land held under a written instrument by private persons or churches; who or whose predecessors are, or at least are supposed to have been, grantees of the community. The practice seems, after the introduction of Christianity, to have prevailed chiefly in favour of religious houses, and in this way the great ecclesiastical corporations acquired their property.... In process of time the conception of bookland seems to be coextensive with that of alodial land." Kenelm E. Digby, An Introduction to the History of the Law of Real Property 11-12 (5th ed. 1897). "Prior to the Conquest, property in land was divided into bocland, folcland, and laenland. The exact nature of these rights has been disputed, but probably hocland was held by owners of high station claiming under a charter of privileges originally granted by the King, while folclandwas held by ordinary owners according to the custom of the district in which the land lay. Laenland, or loanland, appears to have represented something in the nature of a tenancy of a less enduring character. It derived its existence from the loan of land by one person to another, and hence emphasises the relation later known as that of feudal landlord and tenant. Furthermore, as bocland became more common, a tendency for laenland and hocland to coalesce appeared." A.K.R. Kiralfy, Potter's Outlines of English Legal History 195 (5th ed. 1958).

bookmaker. A person who determines odds and receives bets on the outcome of events, esp. sports events. Also termed bookie. See BOOKMAKING. bookmaking. Gambling that entails the taking and recording of bets on an event, esp. a sporting event such as a horse race or football game. [Cases: Gaming book of original entry. A day-to-day record in which a business's transactions are first recorded. books of account. See SHOP BOOKS. Books of Adjournal. Scots law. The records of the High Court ofJusticiary. Books of Sederunt. Scots law. The records of the Court of Session. book value. (1894) 1. The value at which an asset is Also carried on a balance sheet. Cf. BOOK EQUITY. termed carrying value. 2. See OWNER'S EQUITY. adjusted book value. The current actual value of an asset or liability as compared to the value when it was first acquired or incurred or when changes were previously updated. net book value. See OWNER'S EQUITY. book-value stock. See STOCK. boomage. 1. A fee charged by a company for collecting and distributing logs that have accumulated in its boom (Le., a line of sawed logs collected and stored on 14.] a stream's surface). [Cases: Logs and Logging 2. A right to enter on riparian lands to fasten booms. 3. An anchorage fee charged by a canal proprietor. [Cases: Canals (::;;;)27.J boon, n. Hist. Unpaid services, rendered in kind or labor, without being fixed in amount or time, that some tenants owed to the landowner as a condition of tenancy. boon day. (usu. pI.) Hist. One of several days in the year when copyhold tenants were obliged to perform base

boot services for the lord (such as reaping corn) without pay. Also termed due day. Sometimes (erroneously) termed bind day. boot, n. 1. Tax. Supplemental money or property subject to tax in an otherwise tax-free exchange. [Cases: Internal Revenue (:::::::>3679.] 2. Corporations. In a corporate reorganization, anything received other than the stock or securities of a controlled corporation. 3. Commercial law. Cash or other consideration used to balance an otherwise unequal exchange. 4. Hist. ESTOVERS (1). 5. BOTE (1). boot camp. (1916) 1. A camp for basic training of Navy or Marine Corps recruits. 2. A military-like facility esp. for juvenile offenders. - Boot camps are specialized programs for offenders who are generally nonviolent males from 17 to 25 years old. While proponents applaud the success of these programs, others find their long-term success limited at best. See shock incarceration under INCARCERATION. boothage (boo-thij). See BOTHAGIUM. bootleg, vb. Copyright. To make, distribute, or traffic in unauthorized sound or video recordings of live. broadcast. or recorded performances that have not been commercially released by the copyright owner. - The term strictly applies only to unauthorized copies of commercially unreleased performances. Dowling v. United States, 473 U.S. 207, 209 n. 2, 105 S.Ct. 3127, 3129 n. 2 (1985) (Blackmun, J.). See PIRACY (4). bootleg, vb.bootleg; bootlegged, adj. bootleg copy. Copyright. See BOOTLEG RECORDING (1). bootlegger, n. A person who manufactures. transports, or sells something illegally, esp. alcoholic beverages. See MOONSHINE. [Cases: Intoxicating Liquors (:::::::>'137, 138,146.] bootleg recording, n. Copyright. 1. An unauthorized fixation or copy of a live or broadcast performance in a tangible medium or digital duplication made available over the Internet. - Also termed bootleg copy, underground recording, import recording. [Cases: Copyrights and Intellectual Property (:::::::>67.2.]2. See PIRATE RECORDING. 3. COUNTERFEIT RECORDING. bootstrap, vb. (1951) 1. To succeed despite sparse resources. 2. To reach an unsupported conclusion from questionable premises. bootstrap doctrine. (1940) Conflict oflaws. The doctrine that forecloses collateral attack on the jurisdiction of another state's court that has rendered final judgment. • The doctrine applies when a court in an earlier case has taken jurisdiction over a person. over status, or over land. It is based on the principle that under res judicata. the parties are bound by the judgment. whether the issue was the court's jurisdiction or something else. The bootstrap doctrine, however. cannot effectiveness to a judgment by a court that had no subject-matter jurisdiction. For example. parties cannot, by appearing before a state court, "bootstrap" that court into having jurisdiction over a federal matter. [Cases: Judgment C-'=' 488,818,829.]

208 "If the court which rendered the judgment has, with the parties before it. expressly passed upon the jurisdictional question in the case, or had opportunity to do so because the parties could have raised the question, that question is res judicata, and is therefore not subject to collateral attack in the state in which the judgment is sued on. This has been called the 'bootstrap doctrine,' the idea being that a court which initially had no jurisdiction can when the issue is litigated lift itself into jurisdiction by its own incorrect but conclusive finding that it does havejurisdictian." Robert A. Leflar. American Conflicts Law § 79, at 159 (3d ed. 1977).

bootstrap sale. See SALE. booty. 1. Int'llaw. Movables taken from the enemy as spoils in the course of warlike operations. - Also termed spoils of war. 2. Property taken by force or piracy; prize or loot. BOP. abbr. BUREAU OF PRISONS. bordage (bor-dij). Hist. A type of tenure in which a tenant holds a cottage and a few acres in exchange for providing customary services to the lord. Also termed bordagium. bordar (bor-d;:lr). Hist. A bordage tenant. - The status of such a tenants was less servile than that of a villein Also termed tenant. See BORDAGE; VILLEINAGE. bordarius (pI. bordarii). border. A boundary between one nation (or a political subdivision) and another. Border and Transportation Security Directorate. The division of the U.S. Department of Homeland Security responsible for maintaining the safety of the nation's borders and transportation systems. _ The Directorate includes the Transportation Security Administration, the U.S. Customs Service. the border security functions of the U.S. Citizenship and Immigration Service, the Animal & Plant Health Inspection Service. and the Federal Law Enforcement Training Center. It is the Department's largest division. Abbr. BTS. border control.lnt'llaw. A country's physical manifestation of its territorial sovereignty, by which it regulates which people and goods may enter and leave. As a practical matter, border controls are often used to contain plant and animal diseases, fight terrorism, and detect the movement of criminals. bordereau (bor-d;:l-roh). n. 1. A description of reinsured risks; esp., a periodic report provided by a cedent to a treaty reinsurer, consisting of basic information affecting the reinsurance treaty, such as the underlying insureds, the types of risks covered, policies, and dates ofloss. See REINSURANCE TREATY. 2. A detailed note of account. PI. bordereaux. bordereau, vb. border search. See SEARCH. border warrant. See WARRANT (1). bord-halfpenny (bord-hay-p;:l-nee). See BOTHAGIUM. bordlands. Hist. Land used by the nobility to produce food. _ Bordlands remained under the nobility's direct control or were given to tenants who produced provisions for the landowner. Cf. BORDAGE.

209

bote

borg (borg), n. Hist. Scots law. 1. A thing deposited as a security, esp. for bail or a suretyship. 2. A surety. Also spelled borghe; borh. borgh. 1. See BORG. 2. See BORROW. borh. 1. See BORG. 2. See BORROW. bork (bork), vb. (1987) Slang. 1. (Of the u.s. Senate) to reject a nominee, esp. for the U.S. Supreme Court, on grounds of the nominee's political and legal philosophy.• The term derives from the name of Robert Bark, President Ronald Reagan's unsuccessful nominee for the Supreme Court in 1987. 2. (Of political and legal activists) to embark on a media campaign to pressure U.S. Senators into rejecting a President's nominee. 3. Generally, to smear a political opponent. born-alive test. 1. Under the common law, a showing that an infant was completely expelled from the mother's womb and possessed a separate and independent existence from the mother. 2. A shoWing that an infant, at the time of birth, was capable of living a separate and independent existence (regardless of how long the infant actually lived) .• This test was first announced in Bonbrest v. Kotz, 65 F. Supp. 138 (D.D.C. 1946). [Cases: Abortion and Birth Control (~109.] born valid. Patents. Presumed to be good; entitled to the legal presumption that a patent was justified when issued and that challengers bear the burden of proving by dear and convincing evidence that the patent should not have been granted .• Defenses against infringement claims take three tacks: denying that the product infringes on the plaintiff's rights, challenging the validity of the patent itself, or challenging its enforceability. Also termed presumption of validity. [Cases: Patents ''The patent statute is unambiguous: 'A patent shall be presumed valid .... The burden of establishing invalidity of a patent or any claim thereof shall rest on the party asserting such invalidity.' A patent is born valid. It remains valid until a challenger proves it was stillborn or had birth defects, or is no longer Viable as an enforceable right." Roper Corp. v. Litton Sys., Inc., 757 F.2d 1266, 1270 (Fed. Or. 1985) (quoting 35 USCA § 282).

borough (b3r-d), n. 1. A town or township with a municipal charter, such as one of the five political divisions of New York City. [Cases: Municipal Corporations 2. English law. A chartered town that originally sent a member to Parliament. 3. Hist. A fortified or important town. - Also spelled burgh. borough court. English law. An inferior civil court of record, usu. preSided over by the municipal recorder. • Most borough courts were abolished by Parliament in 1972. Cf. BOROUGH SESSIONS; RECORDER (1). borough English. Hist. A common-law rule of descent whereby the youngest son (or sometimes the youngest daughter or collateral heir) inherited all his father's lands .• If the landowner had no issue, his youngest brother inherited the land. This practice applied to socage tenures in some parts of England. It was abolished by statute in 1925. Also termed postremogen-

iture; ultimogeniture. - Also termed burgh English; burgh Engloys. See PRIMOGENITURE. borough fund. English law. The revenue generated by a municipal borough. borough-holder. See BORSHOLDER. borough reeve. See REEVE. borough sessions. Criminal-court sessions held before a municipal recorder. Cf. BOROUGH COURTS; RECORDER (1).

borrow, n. A frankpledge. Also spelled borgh; borh. See DECENARY; FRANKPLEDGE. borrow, vb. 1. To take something for temporary use. 2. To receive money with the understanding or agreement that it must be repaid, usu. with interest. See LOAN. [Cases: Contracts C=:c 194.] borrowed capital. Funds lent to a corporation or other entity to finance its operations, such as cash dividends that are declared by a corporation but temporarily retained (with stockholder approval) to provide operating funds. [Cases: Internal Revenue C=:c4133; Taxation C=:c2545.] borrowed employee. See EMPLOYEE. borrowed servant. See borrowed employee under EMPLOYEE. borrowed-statutes doctrine. The principle that if one state adopts a statute identical to that of another state, any settled judicial construction of that statute by the courts of the other state is binding on the courts of the state that later enacts the statute. [Cases; Courts 95(2); Statutes 0;::;226.J borrower. A person or entity to whom money or something else is lent. borrowhead. See BORSHOLDER. borrowing statute. (1934) A legislative exception to the conflict-of-Iaws rule holding that a forum state must apply its own statute of limitations .• A borrowing statute specifies the circumstances in which a forum state will apply another state's statute oflimitations. [Cases; Limitation of Actions borsholder (bors-hohl-dar). Hist. 1. The chief of a tithing or frankpledge. 2. A petty constable. Also termed borough-holder; borrowhead; headborough. Boston interest. See INTEREST (3). bote (boht). [Anglo-Saxon] Hist. 1. A compensation or profit; esp., an allowance of wood; ESTOVERS (1). Also spelled bot; boot. brigbote. See BRIGBOTE. cartbote. See plowbote. firebote. See housebote. haybote. See HAYBOTE. hedgebote. See HAYBOTE. housebote. An allowance of wood from the estate used to repair a house or to burn in the fireplace. Also termed firebote.

bote less

plowbote. An allowance of wood for the construcAlso termed tion and repair of farm equipment. cartbote. wainbote. An allowance of wood for the repair of wagons. 2. A compensatory payment for causing an injury. Cf. BOTELESS.

"Bot (relief, remedy, compensation) was set at a certain number of shillings in case of wounding, a higher number if the wound injured not only flesh but also bone; indemnity had to be higher if the bone was broken. And so it went with other injuries." Charles Herman Kinnane, A First Book on Anglo-American Law 215 (2d ed. 1952).

Godbot~. A church fine paid for offenses against God. hadbote. Hist. Amends for an affront to or violence against a person in holy orders. - Also spelled had-bot. kinbote. See manbote. lowbote. See LOWBOTE. maegbote (mag-boht). Bote paid to the relatives of an injured person. manbote. Compensation for killing someone. - Also termed kinbote. theftbote (theft-boht). The acceptance of a payment from a thief in exchange i()r an agreement not to prosecute; COMPOUNDING A CRIME. - The payment might be either a bribe or a return of the stolen goods themselves. This was a form of compounding a felony. "Another offence of this class is theftbote or composition with a thief by which the person robbed takes his goods again and by contract suppresses the robbery and defrauds justice. This crime is punishable by fine and imprisonment." 1 Sir Robert Chambers, A Course of Lectures on the English Law: 1767-/773448 (Thomas M. Curley ed., 1986).

3. A tenant's right to use as much wood from the estate as necessary for fuel, fences, and other agricultural operations. - Bote in this sense is an earlier form of estovers. 4. BRIGBOTE. boteless (boht-Ias), adj. Hist. 1. Of or relating to an offense that cannot be expiated or otherwise remedied by the payment of a fine, the offender being required to suffer loss ofliberty or life. _ Boteless offenses appeared in Anglo-Saxon Britain about A.D. 700. They appear to have involved treason or violence against the king. 2. Without relief or remedy; without the privilege of making satisfaction for a crime by pecuniary payment. • The modern word bootless is derived from this term. Cf. BOTE (2). "In the laws of lne it appeared possible, in the discretion of the kind, to put certain offenders to death, rather than let them save themselves by paying a money fine. This involved a step in the modern direction, as far as criminal law is concerned. The 'boteless' offense, that is, the offense which can not be fully expiated by the payment of a money fine so that the gUilty person must suffer loss of liberty or life is so familiar to us that we take it as a matter of course; it seems, however, to have first appeared in Anglo-Saxon Britain about the year A.D. 700. In general, these 'bote less' offenses seem to have appeared in connection with matter that we would say now involved treason or Violence offered

210 to the king." Charles Herman Kinnane, A First Book on Anglo·American Law 216-17 (2d ed. 1952).

bothagium (bah-thay-jee-am). Hist. Customary dues paid to a lord for placing a booth in a fair or market. Also termed bard-halfpenny; boothage. botHer of the kiug. Hist. An officer who provided the king's wines. - By virtue of office, the botiler could choose two casks from every wine-laden ship. The modern word butler is derived from botiler. bottomage bond. See bottomry bond under BOND (2). bottom-hole agreement. Oil & gas. A support agreement in which the contributing party agrees to make a cash contribution to the drilling party in exchange for geological or drilling information if the well is drilled to the agreed depth. See SUPPORT AGREEMENT. [Cases: Mines and Minerals (;:~) 109.] . bottomland. (18c) Low-lying land, often located in a river's floodplain. bottomry. Maritime law. A contract by which a shipowner pledges the ship as security for a loan to finance a voyage (as to equip or repair the ship), the lender lOSing the money if the ship is lost during the voyage. - The term refers to the idea that the shipowner pledges the ship's bottom, or keel. Cf. RESPOKDEKTIA. [Cases: Shipping G~88.] bottomry bond. See BOND (2). bought and sold notes. Two memoranda prepared by a broker to record the sale of a note. - 'The broker sends the bought note to the purchaser, and sends the sold note to the seller. bought note. See NOTE (1). boulevard rule. The principle that the driver of a vehicle approaching a highway from a smaller road must stop and yield the right-of-way to all highway traffic. [Cases: Automobiles c;:=.17l(5).] boulwarism. Labor law. A bargaining tactic in which an employer researches the probable outcome of collective bargaining and uses the information to make a firm settlement ofter to a union on a take-it-or-Ieave-it basis, so that there is no real negotiation. _ Boulwarism is now considered to be an unfair labor practice by the National Labor Relations Board. The practice takes its name from Lemuel Boulware, vice president for employee relations at General Electric Company, who used the technique during the mid-20th century. [Cases: Labor and Employment c;:=.·1483(l).J bounced check. See bad check under CHECK. bound, adj. (lSc) 1. Constrained by a contractual or other obligation . 2. (Of a court) constrained to follow a precedent . bound, n. (usu. pI.) (l3c) 1. BOUNDARY <metes and bounds>. 2. A limitation or restriction on action <within the bounds of the law>.

boycott

211

bound, vb. (14c) To delineate a property boundary <property bounded by the creek>. Cf. BIND. boundary. (l598) 1. A natural or artificial separation that delineates the confines of real property . See METES AND BOUNDS. [Cases: Boundaries (;:::0 1-25.] "The object of all rules for the establishment of boundaries is to ascertain the actual location ofthe boundary as made at the time. The important and controlling consideration, where there is a conflict as to a boundary, is the parties' intention, whether express or shown by surrounding circumstances .... " 11 c.J.S. Boundaries § 3 (1995).

agreed boundary. A negotiated boundary by which adjacent landowners resolve uncertainties over the extent of their land. - Also termed boundary by agreement; boundary by acqUiescence. See DOCTRINE OF PRACTICAL LOCATION. [Cases: Boundaries (;:::046, 48.] land boundary. (l8c) The limit of a landholding, usu. described by linear measurements of the borders, by points of the compass, or by stationary markers. See FORTY; LEGAL DESCRIPTION. [Cases: Boundaries lost boundary. A boundary whose markers have decayed, changed, or been removed or displaced in such a manner that the boundary's correct location can no longer be determined with confidence. [Cases: Boundaries (;:::056.] natural boundary. Any nonartificial thing (such as a river or ocean) that forms a boundary of a nation, a Also political subdivision, or a piece of termed natural object. [Cases: Bounda ies private boundary. An artificial boundary marker. [Cases: Boundaries C=5.] public boundary. A natural formation that marks the beginning of a boundary line. - Also termed natural boundary. [Cases: Boundaries 2. Int'l law. A line marking the limit of the territorial jurisdiction of a state or other entity having an international status. [Cases: International Law (;:::oS.] boundary by acquiescence. See agreed boundary under BOUNDARY.

boundary by agreement. See agreed boundary under BOUNDARY.

boundary traffic. The movement of persons or goods across an international boundary. bound bailiff. See BAILIFF. bounded tree. A tree that marks a corner of a property's boundary. bounder. A visible mark that indicates a territorial limit in a land survey. bounty. (13c) 1. A premium or benefit offered or given, esp. by a government, to induce someone to take action or perform a service . Cf. REWARD. 2. A gift, esp. in a will; generosity in giving 312, 315.] "A breach may be one by non'performance, or by repudiation, or by both. Every breach gives rise to a claim for damages, and may give rise to other remedies. Even if the injured party sustains no pecuniary loss or is unable to show such loss with sufficient certainty, he has at least a claim for nominal damages. If a court chooses to ignore a trifling departure, there is no breach and no claim arises." Restatement(Second) of Contracts § 236 cmt. a (1979).

active breach ofcontract. Civil law. The negligent performance of a contractual obligation, to the point of acting outside the contract's terms .• Under Louisiana law before 1984, active breach of contract was contrasted with passive breach of contract, which was a failure to perform the obligations created by the contract. Unlike a passive breach, an active breach of contract could give rise to a claim in contract and in tort. The distinction was abolished in 1984. Cf. passive Contracts C=>312.] breach of contract. anticipatory breach. (1889) A breach of contract caused by a party's anticipatory repudiation, i.e., unequivocally indicating that the party will not perform when performance is due .• Under these circumstances, the nonbreaching party may elect to treat the repudiation as an immediate breach and sue for damages. Also termed breach by anticipatory repudiation; constructive breach. See anticipatory repudiation under REPUDIATION. [Cases: Contracts C=>313.J "A repudiation by one party may occur before the time for performance has arrived. Such a repudiation is called an anticipatory breach, and it gives the innocent party the option of treating the contract as terminated at once and suing for damages immediately if he chooses or, alternatively, of waiting until the time of performance has arrived, and then again calling on the other party to perform. Should he choose the latter course he runs the risk that the contract may possibly become frustrated in the interim, in which case he will have lost his right to damages." P.S. Atiyah, An Introduction to the Law of Contract 298 (3d ed. 1981).

constructive breach. See anticipatory breach. continuing breach. (18I7) A breach of contract that endures for a considerable time or is repeated at short intervals. efficient breach. (l977) An intentional breach of contract and payment of damages by a party who

breach of covenant

would incur greater economic loss by performing under the contract. See EFFICIENT-BREACH THEORY. immediate breach. (I820) A breach that entitles the nonbreaching party to sue for damages immediately. material breach. (1840) A breach of contract that is significant enough to permit the aggrieved party to elect to treat the breach as total (rather than partial), thus excusing that party from further performance and affording it the right to sue for damages. [Cases: Contracts 439.] Brussels Act. Copyright. A 1948 revision of the Berne Convention mandating the life-plus-50-years copyright term as a minimum standard, extending the moral rights of attribution and integrity in most member countries to the full copyright term, extending the broadcast right to television, strengthening protection of several forms of copyright protection, and extending some protection to industrial designs. Brussels Convention. See BRUSSELS SATELLITE CONVENTION.

Brussels Satellite Convention. Copyright. A 1974 treaty standardizing the regulation of broadcasting and cable retransmission using satellites .• Since the Convention addresses regulation of the signal rather than copyright or neighboring rights, what is transmitted is protected even if the content is not protected by any intellectualproperty right. The U.S. ratified the Brussels Satellite Convention in 1984. - Also termed Brussels Convention; Convention Relating to the Distribution of Program-Carrying Signals Transmitted by Satellite. Bruton error (broot-;ln). (1968) The violation of a criminal defendant's constitutional right of confrontation by admitting into evidence a nontestifying codefendant's confession that implicates both of them, where the statement is not admissible against the defendant under any exception to the hearsay rule .• The error is not cured by a limiting instruction to the jury to consider the confession only against the one who made it, because of the high risk that the jury will disregard the instruction. Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620 (1968). [Cases: Criminal Law C==>662.l0,662.11.] brutum fulmen (broo-t;lm fal-men or -m;ln). [Latin "inert thunder"] 1. An empty noise; an empty threat; something ineffectual. 2. A judgment void on its face;

budget

one that is, in legal effect, no judgment at all. [Cases: Judgment C==>27, 485, 486.] Bryan treaties. Int'llaw. Any of 48 treaties designed to avert war by requiring the signatories to submit disputes of any kind to standing peace commissions . • The first of these treaties, named after Secretary of State William Jennings Bryan, was signed between the United States and Great Britain in 1914. b.s. abbr. See bancus superior under BANCUS. BSA. abbr. BUSINESS SOFTWARE ALLIANCE. BSD license. See LICENSE. BSD-style license. See BSD license under LICENSE. BTA. abbr. Board of Tax Appeals. See TAX COURT, U.S. BTS. abbr. 1. BORDER AND TRANSPORTATION SAFETY DIRECTORATE.

2.

BUREAU OF TRANSPORTATION STA-

TISTICS.

bubble. (l8c) Slang. A dishonest or insubstantial business project, generally founded on a fictitious or exaggerated prospectus, designed to ensnare unwary investors. Bubble Act. An English statute passed in 1720 to prevent corporate fraud. bucketing. Securities. The illegal practice of receiving an order to buy or sell stock but not immediately performing the order.• The perpetrator profits by executing the order when the stock market goes down or up, respectively, but confirming the order to the customer at the original price. bucket shop. Securities. An establishment that is nominally engaged in stock-exchange transactions or some similar business, but in fact engages in registering bets or wagers, usu. for small amounts, on the rise or fall of the prices of stocks and commodities .• A bucket shop uses the terms and outward forms of the exchanges, but differs from exchanges because there is no delivery of and no expectation or intention to deliver or receive the securities or commodities nominally exchanged. Buckley Amendment. See FAMILY EDUCATIONAL RIGHTS AND PRIVACY ACT.

Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the Purpose of Patent Procedures. Patents. An international treaty promulgating standards and procedures for depositing microorganisms and requiring member countries to recognize a deposit of biological material made in any depository approved by the World Intellectual Property Organization .• The purpose of the Budapest Treaty is to allow inventors to satisfy the enablement requirement of national patent laws by depositing in a convenient depository a sample of a microorganism to be patented. The U.S. is a signatory to the Budapest Treaty. budget. (15c) 1. A statement of an organization's estimated revenues and expenses for a specified period, usu. a year. 2. A sum of money allocated to a particular purpose or project.

222

budget bill

balanced budget. A budget in which a period's total projected income equals the total estimated expenses.

budget bill. See BILL (3). Buenos Aires Convention. Copyright. A 1910 treaty regulating copyright reciprocity among Latin American nations and the United States .• Under this agreement, the phrase "all rights reserved" guaranteed copyright protection in member nations. Since all the Convention's signatories are now signatories to more recent and broader international-copyright treaties, this Convention now has little if any practical effect. buffer zone. (1908) Land-use planning. An area ofland separating two different zones or areas to help each blend more easily with the other, such as a strip of land between industrial and residential areas. [Cases: Zoning and Planning C='31, 272.] bug. 1. A flaw or mistake in a computer program that results in an error or undesired result. 2. The printed mark of a labor union. buggery, n. (14c) Sodomy or bestiality. See SODOMY. [Cases: SodomyC='1.]- bugger, vb. - bugger, n. bugging, n. (1955) A form of electronic surveillance by which conversations may be electronically intercepted, overheard, or recorded, usu. covertly; eavesdropping by electronic means. See EAVESDROPPING; WIRETAPPING. [Cases: Telecommunications C=' 1435.] building. A structure with walls and a roof, esp. a permanent structure .• For purposes of some criminal statutes, such as burglary and arson, the term building may include such things as motor vehicles and watercraft. accessory building. A building separate from but complementing the main structure on a lot, such as a garage .• The question whether a structure is an "accessory building" is often litigated in zoning disputes. [Cases: Zoning and Planning C='307.] building-and-Ioan association. (1857) A quasi-public corporation that accumulates funds through member contributions and lends money to the members buying or building homes. Cf. SAVINGS-AND-LOAN ASSOCIATION. [Cases: Building and Loan Associations C=' 1, 24-37.] building code. A law or regulation setting forth standards for the construction, maintenance, occupancy, use, or appearance of buildings and dwelling units. Also termed (for dwelling units) housing code. Cf. BUILDING RESTRICTIONS. [Cases: Health C='392.] building lease. See LEASE. building line. (1885) A boundary drawn along a curb or the edge of a municipality's sidewalks to establish how far a building must be set away from the street to maintain a uniform appearance .• This is often referred to as a setback requirement. [Cases: Zoning and Planning C='64, 252.] building loan. See LOAN.

building permit. A license granted by a government agency (esp. a municipality) for the construction of a new building or the substantial alteration of an existing structure. [Cases: Zoning and Planning C='385.] building restrictions. Regulations governing the type of structures that can be constructed on certain property. • The restrictions are usu. listed in zoning ordinances or restrictive covenants in deeds. Cf. BUILDING CODE; restrictive covenant under COVENANT (4). Cf. BUILDING CODE. [Cases: Zoning and Planning C='62, 251.] build-to-print contract. See CONTRACT. built-in obsolescence. See planned obsolescence under OBSOLESCENCE.

bulk, adj. (Of goods) not divided into parts . bulk discount. See volume discount under DISCOUNT. bulk mortgage. See MORTGAGE. bulk sale. (1902) A sale of a large quantity of inventory outside the ordinary course of the seller's business .• Bulk sales are regulated by Article 6 of the UCC, which is designed to prevent sellers from defrauding unsecured creditors by making these sales and then dissipating the sale proceeds. - Also termed bulk transfer. [Cases: Fraudulent Conveyances C='47.] bulk-sales law. A statute regulating the transfer of business assets, usu. by requiring public notice of any sale to prevent business owners from disposing of assets to the detriment of creditors and suppliers. See UCC §§ 6-101 et seq. See BULK SALE. [Cases: Fraudulent Conveyances C='47.] bulk transfer. See BULK SALE. bulky goods. See GOODS. bull. Eccles. law. 1. A document issued by a pope, so called from the leaden seal (bulla) attached to it. 2. A seal attached to an official document, esp. a papal edict. bulla (buul-d or bal-d). [Law Latin] A metal or wax papal seal or document. bullet ballot. See bullet vote under VOTE (1). bulletin des lois (buul-d-tan day lwah). French law. The publication that provides official notice of the text and effective date of a law or decree. bullet vote. See VOTE (1). bullion (buul-Ydn). An uncoined solid mass of gold or silver. bullion fund. Public money used by a mint to purchase precious metals for coinage and to pay bullion depositors. bull market. See MARKET. bullpen. (1809) Slang. 1. An area in a prison where inmates are kept in close confinement. 2. A detention cell where prisoners are held until they are brought into court. bumbailiff. See BAILIFF.

223 bumbershoot insurance. See INSURANCE. bum-marriage doctrine. Evidence. The principle that the marital-witness privilege may not be asserted by a partner in a marriage that is in fact moribund, though legally valid. See marital privilege (2) under PRIVILEGE (3). [Cases: Witnesses C=>Sl.j bumping. (1937) 1. Displacement of a junior employee's position by a senior employee. 2. An airline-industry practice of denying seats to passengers because of overbooking. [Cases: Carriers C-~'236(1.2).l bunco. (I872) A swindling game or scheme; any trick or ploy calculated to win a person's confidence in an attempt to deceive that person. Also spelled bunko. - Also termed bunco steering. Cf. CONFIDENCE GAME. [Cases: False Pretenses C-=·16.] bunco steerer. 1. One who uses tricks, schemes, or other illegal devices to obtain money or property from others; a swindler. 2. One who acts as a decoy in bunco. Also termed bunco operator; bunco man. See CONFIDENCE MAN.

bundle. See RECORD (4). bundle, vb. To sell related products or services in one transaction at an all-inclusive price. bundled software. Software that is sold together with hardware, other software, or services at a single price. bundle of rights. See PROPERTY (1). bundling, n. In the computer industry, the practice of charging a single price for a combination of hardware, software, or services .• Personal computers are typically sold with bundled software, such as an operating system and applications software that are preinstalled on the hardware. bunkhouse rule. The principle that an employee's injury suffered while living in an employer's housing is compensable even if the injury occurs during off-duty hours. lCases: Workers' Compensation C=>709.j burden, n. (bet'. 12c) 1. A duty or responsibility 90-98.] burden of proof. (I8c) 1. A party's duty to prove a disputed assertion or charge. _ The burden of proof includes both the burden ofpersuasion and the burden of production. - Also termed onus probandi. See SHIFTING THE BURDEN OF PROOF. 2. Loosely, BURDEN OF PERSUASION. [Cases: Evidence C::>90.j "In the past the term 'burden of proof' has been used in two different senses. (1) The burden of going forward with the eVidence. The party having this burden must introduce some evidence if he wishes to get a certain issue into the case. If he introduces enough evidence to require consideration of this issue, this burden has been met. (2) Burden of proof in the sense of carrying the risk of non persuasion. The one who has this burden stands to lose if his evidence or the judge in a nonjury trial. fails to convince the jury The present trend is to use the term 'burden of proof' only with this second meaning ." Rollin M. Perkins & Ronald N. Boyce, Criminal Law 78 (3d ed. 1982). 'The expression 'burden of proof' is tricky because it has been used by courts and writers to mean various things. Strictly speaking, burden of proof denotes the duty of establishing by a fair preponderance of the eVidence the truth of the operative facts upon which the issue at hand is made to turn by substantive law. Burden of proof is sometimes used in a secondary sense to mean the burden of going forward with the evidence. In this sense it is sometimes said that a party has the burden of countering with eVidence a prima facie case made against that party." William D. Hawkland, Uniform CommerCial Code Series § 2A-516:08 (1984).

middle burden ofproof. A party's duty to prove a fact by dear and convincing evidence .• This standard lies between the preponderance-of-the-evidence standard and the beyond-a-reasonable-doubt standard. See clear and convincing evidence under EVIDENCE. [Cases: Evidence C-=S96.] burden-shifting analysis. A court's scrutiny of a complainant's evidence to determine whether it is sufficient to require the opposing party to present contrary evidence .• Burden shifting is most commonly applied in discrimination cases. If the plaintiff presents sufficient evidence of discrimination, the burden shifts to the defendant to show a legitimate, nondiscriminatory basis for its actions. The precise components of the

Bureau of Alcohol, Tobacco, and Firearms

analysis vary depending on the context of the claim. Ct~ MCDONNELL DOUGLAS TEST. [Cases: Civil Rights 1536; Jury Cr~33(5.l5).l Bureau of Alcohol, Tobacco, and Firearms. I. See ALCOHOL AND TOBACCO TAX AND TRADE BUREAU. 2. See BUREAU OF ALCOHOL, TOBACCO, FIREARMS, AND EXPLOSIVES.

Bureau of Alcohol, Tobacco, Firearms, and Explosives. A unit in the u.s. Department of Homeland Security responsible for enforcing laws relating to firearms and explosives and laws relating to the production, taxation, and distribution of alcohol and tobacco products. Formerly called the Bureau of Alcohol, Tobacco, and Firearms and a part of the Department of the Treasury, its law-enforcement functions were transferred in the Homeland Security Act of 2002. Pub. 1. 107-296. Abbr. ATF. Cf. ALCOHOL AND TOBACCO TAX AND TRADE BUREAU. [Cases: Internal Revenue (;:::::'4311, 4314.] Bureau of Arms Control. A unit in the U.S. Department of State responsible for directing U.S. participation in multilateral arms-control negotiations and in the Orga· nization for the Prohibition of Chemical Weapons. It also monitors developments relating to arms control and weapons development. Bureau of Consular Affairs. A unit in the U.S. Department of State responsible for protecting U.S. citizens and interests abroad. _ Through its Office of Passport Services it issues over 7 million passports each year. Bureau of Customs. See UNITED STATES CUSTOMS SERVICE.

Bureau of Democracy, Human Rights, and Labor. A unit in the U.S. Department of State responsible for developing policy on human rights and freedoms and for preparing the annual Country Reports on Human Rights Practices. Abbr. DRL. Bureau of Diplomatic Security. A unit of the U.S. Department of State responsible for protecting the Secretary of State and domestic and foreign dignitaries, for investigating criminal activities such as identity-document fraud involving U.S. passports and visas, and for developing security programs protecting diplomats and American interests worldwide. - The Bureau employs special agents (members of the U.S. Foreign Service) who are located throughout the United States and in scores of embassies worldwide. It also operates the Diplomatic Courier Service and supervises the transportation of classified documents and materials. Abbr. DS. Also termed Diplomatic Security Service. Bureau of Economic Analysis. A unit in the U.S. Department of Commerce responsible for compiling and analyzing data about the U.S. economy. - It is a part of the Department's Economics and Statistics Administration. Abbr. BEA. Bureau of Economic and Business Affairs. A unit in the U.S. Department of State responsible for developing policy on international matters relating to food, communications, energy, air transportation, and maritime affairs. Abbr. EB.

224

Bureau of Engraving and Printing. A unit in the U.S. Department of the Treasury responsible for designing and printing the nation's paper currency, postage stamps, Treasury securities, and other documents. Abbr. BEP. [Cases: United States Bureau of Export Administration. The former name of a bureau in the U.S. Department of Commerce that issues export licenses and enforces export-control laws. - The unit's name was changed in 2002 to the Bureau of Industry and Security. - Abbr. BXA. Bureau of Indian Affairs. A unit in the U.S. Department of the Interior responsible for helping Indian and Alaskan native people manage their affairs under the trust relationship with the U.S., and for promoting programs for their benefit. _ Originally created as part of the War Department in 1824, the Bureau was transAbbr. ferred to the Interior Department in 1849. BIA. [Cases: IndiansC:'l13-118.J Bureau of Industry and Security. A unit in the U.S. Department of Commerce responsible for issuing export licenses and enforcing export-control laws. _ The Bureau is charged with furthering U.S. l1ational~ security, foreign-policy, and economic interests while furthering the growth of U.S. exports. It was named the Bureau of Export Administration until 2002. Abbr. BIS. Bureau ofIntelligence and Research. A unit in the U.S. Department of State responsible for coordinating activities of U.S. intelligence agencies to ensure consistency with u.s. foreign policy. _ The Bureau also monitors foreign public and media opinions. Abbr. INR. Bureau of International Labor Affairs. A unit in the U.S. Department of Labor responsible for helping formulate policy on international matters that affect American workers. - For example, the Bureau compiles and publishes worldwide data on child-labor practices and on foreign labor markets and programs. It also studies the labor consequences of immigration proposals and legislation. Bureau of International Narcotics and Law Enforcement. A unit in the U.S. Department of State responsible for coordinating the narcotics and anticrime~assistance activities of the Department and for adVising the Presi~ dent, the Secretary of State, and others on international narcotics matters. - Abbr. INL. Bureau of International Organization Affairs. A unit in the U.S. Department of State responsible for coordinating U.S. diplomatic participation in the United Nations and other international organizations and conferences. Abbr. 10. Bureau of Labor Statistics. An independent agency in the U.S. Department of Labor responsible for compiling and analyzing statistical information on employment and the economy. - The Bureau reports on employment, unemployment, consumer and producer prices, consumer expenditures, import and export prices, wages and employee benefits, productivity and tech-

225

nological change, employment projections, and occupational illness and injury. Abbr. BLS. Bureau of Land Management. The unit within the u.s. Department of the Interior responsible for managing the national-resource lands (some 450 million acres) and their resources and for administering the mineral resources connected with acquired lands and the submerged lands of the Outer Continental Shelf (OCS) .• The bureau was established on July 16, 1946, by consolidating the General Land Office (established in 1812) and the Grazing Service (established in 1934). See 35 USCA §§ 1731 et seq. [Cases: Public Lands ~~94.] Bureau of Nonproliferation. A unit in the u.s. Department of State responsible for leading efforts to prevent the proliferation of weapons of mass destruction, delivery systems, and advanced conventional arms. Also termed Nonproliferation Bureau. Bureau of Oceans and International Environmental and Scientific Affairs. A unit in the U.S. Department of State responsible for coordinating U.S. ocean, environment, and health policies. - Abbr. OES. Bureau of Political-Military Affairs. A unit in the U.S. Department of State responsible for analYZing defenserelated policy issues, managing security-assistance funds, and coordinating peace-keeping and humanitarian operations. Abbr. PM. - Also termed Political-Military Affairs Bureau. Bureau of Population. Refugees, and Migration. A unit in the U.S. Department of State responsible for formulating policy and administering U.S. assistance and admissions programs for refugees and others. Abbr.PRM. Bureau of Prisons. The unit in the u.s. Department ofJustice responsible for operating the federal prison system.• It oversees all federal penal and correctional facilities, assists states and local governments in improving their correctional facilities, and provides notice of prisoner releases. 18 USCA §§ 4041 et seq. See NATIONAL INSTITUTE OF CORRECTIONS. - Abbr. BOP. Bureau of Redamation. A unit in the U.S. Department of the Interior that built dams in 17 western states and is now responsible for selling hydroelectric power from those dams and water from the reservoirs. - Among the 600 dams constructed are Hoover Dam and Grand Coulee Dam. [Cases: Waters and Water Courses C= 222.] Bureau of the Budget. See OFFICE OF MANAGEMENT AND BUDGET.

Bureau of the Census. A unit in the U.S. Department of Commerce responsible for conducting and publishing the census required by the U.S. Constitution to be taken every ten years .• Established in 1902, the Bureau also conducts other population surveys and estimates as required by law. It is a part of the Department's Economics and Statistics Administration. - Also termed Census Bureau. Census 1.]

burglary

Bureau ofthe Mint. See UNITED STATES MINT. Bureau of the Public Debt. A unit in the u.s. Department of the Treasury responsible for issuing and redeeming Treasury bills, notes, and bonds, and for managing the U.S. Savings Bond Program. Bureau of Transportation Statistics. A unit in the U.S. Department of Transportation responsible for compiling and publishing transportation statistics. - Abbr. BTS. Bureau Veritas. See VERITAS. Bureaux Internationaux Reunis pour la Protection de la Propriete Intellectuelle. See INTERNATIONAL BUREAU FOR THE PROTECTION OF INTELLECTUAL PROPERTY.

Burford abstention. See ABSTENTION. burgage (b3r-gij). Rist. 1. A type of socage tenure in which tenants paid annual rents to the lord of the borough. See SOCAGE. 2. Scots law. The tenure by which a burgh held its land of the king, the service due being watching and warding. See WATCH AND WARD. - Also termed burgage tenure. burgator (b;r-gay-t;r). Rist. A burglar; a person who breaks into a house or an enclosed space. burgess (b3r-jis). Rist. 1. An inhabitant or freeman of a borough or town. 2. A magistrate of a borough. 3. A person entitled to vote at elections. 4. A representative of a borough or town in Parliament. "[Burgesses] are properly Men of Trade, or the Inhabitants of a Borow or Walled Town; yet we usually apply this name to the Magistrates of such a Town, as the Bailiff and Burgesses of Leominster. But we do now usually call those Burgesses who serve in Parliament, for any such Borow or Corporation." Thomas Blount, Nama·Lexicon: A Law· Dictionary (1670).

burgh English (barg ing-glish). See

BOROUGH

ENGLISH.

burgh Engloys (barg ing-gloiz). See

BOROUGH

ENGLISH.

burglar, n. (16c) One who commits burglary. burglarious (b;r-glair-ee-;s), adj. Of or relating to burglary . - burglariously, adv. burglarize, vb. To commit a burglary . - Also termed (esp. in BrE) burgle. burglary, n. (16c) 1. The common-law offense of breaking and entering another's dwelling at night with the intent to commit a felony. 2. The modern statutory offense of breaking and entering any building - not just a dwelling, and not only at night - with the intent to commit a felony.• Some statutes make petit larceny an alternative to a felony for purposes of proving burglariOUS intent. Also termed (in sense 2) breaking and statutory burglary. Cf. ROBBERY. lCases: Burglary generic burglary. An unlawful or unprivileged entry into, or remaining in, a building or structure with intent to commit a crime. Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143 (1990).

burglary tool. (often pI.) (1903) An implement designed to help a person commit a burglary.• In many jurisdictions, it is illegal to possess such a tool if the possessor intends to commit a burglary. lCases: Burglary C='12.] burgle. See BURGLARIZE. burial insurance. See INSURANCE. buried-facts doctrine. Securities. The rule that a proxystatement disclosure is inadequate if a reasonable shareholder could fail to understand the risks presented by facts scattered throughout the proxy.• In applying this rule, a court will consider a securities disclosure to be farse and misleading if its overall significance is obscured because material information is buried in footnotes, appendixes, and the like. [Cases: Securities Regulation C='49.21.] burking, n. The crime of murdering someone, usu. by smothering, for the purpose of selling the corpse .• This term arose from the Scottish murder team of Burke and Hare, whose practice in 1828 of suffocating their victims while leaving few visible marks made the corpses more salable to medical schools. - burke, vb. burlaw. See BYRLAW. burlawcourt. See BYRLAW COURT. burnt-records act. A statute that enables a property owner to quiet title if the public records for the property have been lost or destroyed in a disaster. [Cases: Records C='18.] bursting-bubble theory. (1941) Evidence. The principle that a presumption disappears once the presumed facts have been contradicted by credible evidence. [Cases: 89.] Evidence Bush doctrine. The policy announced by President George W. Bush after the September 11, 2001 attacks on the World Trade Center and the Pentagon, to the effect that nations harboring terrorists will be treated as terrorists themselves and may be subject to a firststrike strategy. Cf. SOVEREIGN EQUALITY. business. 1. A commercial enterprise carried on for profit; a particular occupation or employment habitually engaged in for livelihood or gain. 2. Commercial enterprises . 3. Commercial transactions . See DOING BUSINESS. 4. By extension, transactions or matters of a noncommercial nature 310(1).] "The business judgment rule is a presumption protecting conduct by directors that can be attributed to any rational business purpose. In order to plead and prove a claim, a plaintiff must plead and prove facts overcoming this presumption. Where the presumption is overcome, directors bear the burden of proving the fairness of the challenged conduct. The difference between these two levels of judicial scrutiny - a presumption in favor of directors that protects conduct that is rational, versus a burden of proving fairness frequently is outcome determinative." 1 Dennis 1. Block et aI., The Business judgment Rule 18-19 (5th ed. 1998).

business loss. See ordinary loss under LOSS. business meeting. See MEETING. business method. Patents. A way or an aspect of a way in which a commercial enterprise is operated. business-method exception. Intellectual property. The traditional doctrine that business methods are not protected by intellectual-property laws .• Early caselaw established that "pure methods of doing business" were unpatentable. But in 1998, the Federal Circuit held in State St. Bank & Trust Co. v. Signature Fin. Group (149 F.3d 1368) that business methods are not per se unpatentable if they otherwise meet the requirements for a valid patent. The European Patent Convention expressly excludes business methods from patent protection. [Cases: Patents C::::-7.14.] business-method patent. See PATENT (3). Business Methods Patent Initiative. A U.S. Patent and Trademark Office program that added a second level to business-method-patent reviews for the purpose of reducing the number of business-method patents issued .• The PTa created the initiative in response to complaints that examiners improperly approved many business-method patents. After an examiner approves the application and before a business-method patent is granted, a second examiner must completely review the application and either reject the application or affirm the issuance of the patent. business opportunity. The chance to buy or lease either a going business, or a product, service, or equipment that will enable the buyer or lessee to profit. [Cases: Antitrust and Trade Regulation C=>271.J business-partner insurance. See partnership insurance under INSURANCE. business plan. (1890) A written proposal explaining a new business or business idea and usu. covering financial, marketing, and operational plans. business-purpose doctrine. (1939) Tax. The principle that a transaction must serve a bona fide business purpose (i.e., not just for tax avoidance) to qualify for beneficial tax treatment. [Cases: Internal Revenue C::,-:> 3071, 3315, 3396.1 business record. A report, memorandum, or other record made usu. in the ordinary course of business.

• It may be ordered produced as part of discovery in a lawsuit. business-records exception. (1939) Evidence. A hearsay exception allOWing business records (such as reports or memoranda) to be admitted into evidence if they were prepared in the ordinary course of business .• If there is good reason to doubt a record's reliability (e.g., the record was prepared in anticipation of litigation), the exception will not apply. Fed. R. Evid. 803(6). - Also termed bUSiness-entry rule. [Cases: Criminal Law C=> 436; Evidence C=> 351.] business-riskexdusion. See EXCLUSION (3). Business Software Alliance. Copyright. An international trade organization representing leading software and e-commerce developers, formed to educate governments and the public about software issues and to fight software piracy and Internet theft. - Abbr. BSA. business-to-business, adj. Of or relating to commerce between businesses, as distingUished from commerce between a business and consumers. - Abbr. B2B. Cf. BUSINESS-TO-CONSUMER.

business-to-business e-commerce. Electronic commerce between businesses over the Internet. business-to-consumer, adj. Of or relating to commerce between a business and consumers, as distinguished from commerce between businesses. - Abbr. B2C. Cf. BUSINESS-TO-BUSINESS.

business-to-consumer e-commerce. Electronic commerce between a business and consumers over the Internet. business tort. See TORT. business transaction. An action that affects the actor's financial or economic interests, including the making of a contract. business trust. See TRUST (4). business visitor. 1. Torts. A person who is invited or permitted to enter or remain on another's land for a purpose directly or indirectly connected with the landowner's or possessor's business dealings. Also termed business invitee; business guest. See INVITEE. [Cases: Negligence C=> 1076.] 2. Immigration law. A non-U.S. citizen who has a B-1 visa, which allows the person to be employed while in the United States. bust-up merger. See MERGER. but-for cause. See CAUSE (1). but-for materiality. Patents. In an analysis of allegedly inequitable conduct, a test for determining the materiality of withheld information by assessing whether the withheld information, if disclosed, would have resulted in a finding of unpatentability.• Under this test, the issue is whether the patent would have issued if not for the misconduct of the applicant. By contrast, under the subjective but-for test, the issue is whether the misrepresentation caused the examiner to issue the patent. Although both tests have been applied by the courts, the Federal Circuit has rejected the but-for materiality

test in favor of the materiality test codified in 37 CFR 1.56. - Also termed objective but-for test. Cf. REASONABLE EXAMINER TEST. [Cases: Patents C'":::>97.] but-for test. (1925) Tort & criminal law. The doctrine that causation exists only when the result would not Also have occurred without the party's conduct. termed (in criminal law) had-not test. See but-for cause under CAUSE Cf. SUBSTANTIAL-CAUSE TEST. [Cases: Criminal Law Negligence butlerage. Hist. A duty on wine imported into England, payable to the royal butler. Cf. PRISAGE. but see. See SED VIDE. but so insane as not to be responsible. See GUILTY BUT MENTALLY ILL.

buttals (bat-alz). Archaic. See ABUTTALS. butterfly ballot. See BALLOT. butts and bounds. See METES AND BOUNDS. buy. See PURCHASE (1). buy-and-sell agreement. See BUY-SELL AGREEMENT. buy-back clause. 1. Contracts. A provision that requires a manufacturer or franchiser to buy back inventory and equipment if the distributor or franchisee's contract is terminated prematurely. 2. Contracts. A clause allowing the seller of property the right or opportunity to repurchase the property under stated conditions. 3. Insurance. An insurance-policy clause that provides for the reinstatement of coverage that the insurer excludes or cancels if the insured meets certain conditions .• For instance, buy-back clauses are often used to reinstate some of the c~verage taken away under pollution-exclusion clauses. [Cases: Contracts (;::0202(1).] buy-down, n. Money paid by the buyer of a house to reduce the mortgage-interest payments. buyer. (12c) One who makes a purchase. See PURCHASER.

buyer in ordinary course of business. (1915) A person who in good faith and without knowledge that the sale violates a third party's ownership rights or security interest in the goods - buys from a person regularly engaged in the business of selling goods of that kind .• Pawnbrokers are excluded from the definition. UCC § 1-201(9), - Also termed buyer in due course. [Cases: Sales (;::0234.] qualified institutional buyer. Securities. An institution with more than $100 million in invested assets. buyer's market. See MARKET.

buying in, n. (17c) The purchase of property by the original owner or an interested party at an auction or foreclosure sale. buy in, vb. buying on margin. See MARGIN TRANSACTION. buying syndicate. See SYNDICATE. buy order. See ORDER (8).

buyout, n. The purchase of all or a controlling percentage of the assets or shares of a business. Cf. MERGER (8). - buyout, vb. leveraged buyout. (1975) The purchase of a publicly held corporation's outstanding stock by its management or outside investors, financed mainly with funds borrowed from investment bankers or brokers and usu. secured by the corporation's assets. - Abbr. LBO. [Cases: Corporations (;::0 116.] management buyout. (I976) 1. A buyout of a corporation by its own directors and officers. 2. A leveraged buyout of a corporation by an outside entity in which the corporation's management has a material financial interest. - Abbr. MBO. See GOING PRIVATE. buy-sell agreement. (1956) 1. An arrangement between owners of a business by which the surviving owners agree to purchase the interest of a withdrawing or deceased owner. Also termed cross-purchase buy-sell agreement. Cf. CONTINUATION AGREEMENT. 2. Corporations. A share-transfer restriction that commits the shareholder to sell, and the corporation or other shareholders to buy, the shareholder's shares at a fixed price when a specified event occurs. - Also termed buy-andsell agreement. Cf. OPTION AGREEMENT. [Cases: Corporations (;::082, 116. ] BVA. abbr. BOARD OF VETERANS' APPEALS. BW. abbr. BID WANTED. BXA. abbr. BUREAU OF EXPORT ADMINISTRATION. by-bidder. At an auction, a person employed by the seller to bid on property for the sole purpose of stimulating bidding by potential genuine buyers; SHILL (2). - Also termed puffer. [Cases: Auctions and Auctioneers 7.] by-bidding. The illegal practice of employing a person to bid at an auction for the sole purpose of stimulating bidding on the seller's property. - Also termed puffing. Cf. BIDDING UP; SHILLING (1). [Cases: Auctions and Auctioneers by-election. See ELECTION (3). by God and my country. Hist. A customary reply for a criminal defendant when asked at arraignment, "Culprit, how wilt thou be tried?" bylaw rfr. Danish bye, Old Norse byr, "town"] (14c) 1. Parliamentary law. (usu. pl.) A rule or administrative provision adopted by an organization for its internal governance and its external dealings .• Although the bylaws may be an organization's most authoritative governing document, they are subordinate to a charter or articles of incorporation or association or to a constitution. The "constitution and bylaws" are sometimes a single document. See governing document under DOCUMENT; ARTICLES OF INCORPORATION. Cf. CONSTITUTION. [Cases: Associations Condominium Corporations (;::054,113,116.]2. ORDINANCE. Sometimes spelled by-law; byelaw. "By·law is now felt to be a compound of the preposition by and law, but originally bywas the Danish by 'town, village'

bystander

229 (found in Derby, Whitby, etc.), and the Danish genitiveending is preserved in the other English form byr-Iaw," Otto Jespersen, Growth and Structure of the English Language 7S (9th ed, 1938).

bylaw man. Hist. One of the chief men of a town, usu. appointed for some purpose under the town's corporate bylaws. by operation oflaw. See OPERATION OF LAW. bypass trust. See TRUST. byrlaw (bir-lah), n. Eng. & Scots Hist. 1. The local custom of a township or district for resolving disputes over boundaries, trespasses, and the use of common lands, as well as farming issues. 2. A particular custom established by the common consent of landholders

in a township or district. 3. The area over which a township or district court has jurisdiction. - Also spelled burlaw. byrlaw court. Hist. Scots law. A community assembly that judged minor disputes arising in the community. • The assembly members were called byrlawmen or birleymen. - Also spelled burlaw court. byrthynsak (bar-th.:ln-sak), n. [Anglo-Saxon byrthen "burden" + sacu "lawsuit"] Hist. The theft of a calf or ram that is the most a man can carryon his back. bystander. (16c) One who is present when an event takes place, but who does not become directly involved in it.

c

c. abbr. (1947) 1. CIRCA. 2. COPYRIGHT. ca. abbr. CIRCA. CA. abbr. CERTIFICATION AUTHORITY. ca. ad reo abbr. See capias ad respondendum under CAPIAS.

cabal (ka-.bal or ka-bahl). (17c) A small group ofpolitical schemers or conspirators .• The term is sometimes said to have originated as an acronym from a committee of five ministers of Charles II, whose surnames began with C, A, B, A, and L (Clifford, Arlington, Bucking­ ham, Ashley, and Lauderdale). Though colorful, this etymology is false: the term came into English directly from the French cabale "intrigue," which derives ulti­ mately from Hebrew kabbalah "received lore." cabala (kab-~-la or ka-bahl-a). An esoteric or obscure doctrine. caballeria (kah-bah-ye-ree-ah). [Spanish] Spanish law. An allotment of land in regions formerly conquered by Spain, such as Mexico and the southwestern United States.• Originally a Spanish feudal tenure held by a soldier, a caballeria eventually came to refer to an area ofland. It usu. measures 100 by 200 feet in the United States, and between 30 and 200 acres in Mexico and other former Spanish territories. cabinet. (often cap.) (17c) The advisory council to an executive officer, esp. the President. • The President's cabinet is a creation of custom and tradition, dating back to the term of George Washington. 1he U.S. Con­ stitution alludes to a group of presidential advisers ­ the President "may require the Opinion, in writing, of the principal Officer in each of the executive Depart­ ments' upon any Subject relating to the Duties of their but the term respective Offices" (art. II, § 2, c1. 1) cabinet is not specifically mentioned. The cabinet today comprises the heads of the 15 executive departments: the Secretary of State, the Secretary of the Treasury, the Secretary of Defense, the Attorney General, the Secretary of the Interior, the Secretary of Agriculture, the Secretary ofCommerce, the Secretary of Labor, the Secretary of Health and Human Services, the Secretary of Housing and Urban Development, the Secretary of Transportation, the Secretary ofEnergy, the Secretary of Education, the Secretary of Veterans Affairs, and the Secretary of Homeland Security. Other officials, such as the U.S. ambassador to the United Nations and the director of the Office of Management and the Budget, have been accorded cabinet rank. [Cases: United States

inner cabinet. The heads of the departments of State, Treasury, Defense, and Justice.• 1his group is so called because in most administrations it tends to be

closer to the executive and more influential than the rest of the cabinet (the outer cabinet). kitchen cabinet. An unofficial and informal body of noncabinet advisers who often have more sway with the executive than the real cabinet does.• This term was first used derisively in reference to some of Pres i­ dent Andrew Jackson's advisers, who, because oftheir reputation for unpolished manners, were supposedly not important enough to meet in the formal rooms of the White House. "The term [kitchen cabinet] began to lose its sting after Jackson's time. But because most Presidents do have circles of personal friends, the idea remains. Theodore Roosevelt had his 'tennis cabinet.' Jonathan Daniels referred to Warren Harding's 'poker cabinet.' Herbert Hoover had an exercise-loving 'medicine ball cabinet.' Even governors can play the game. In writing of New York's Alfred Smith, Ed Flynn mentions the 'golfing cabinet,''' William Safire, Satire's New Political Dictionary 389 (1993).

Cable and Satellite Directive. See

DIRECTIVE ON THE

COORDINATION OF CERTAIN RULES CONCERNING COPY­ RIGHT AND NEIGHBOURING RIGHTS APPLICABLE TO SAT­ ELLITE BROADCASTING AND CABLE RETRANSMISSION.

cabotage (kab-a-tij). Int'llaw. 1. The carrying on oftrade along a country's coast; the transport ofgoods or pas­ sengers from one port or place to another in the same country.• The privilege to carryon this trade is usu. limited to vessels flying the flag of that country. 2. 1he privilege of carrying traffic between two ports in the same country. 3. The right of a foreign airline to carry passengers and cargo between airports in the same country. "Some writers maintain [that cabotage] should be applied only to maritime navigation; in this context one can distin· guish between petit cabotage - transport between ports situated on the same sea (e.g. Bordeaux-Le Havre) - and transport between ports situated on grand cabotage different seas (e.g. Bordeaux-Marseille). However, the term is also properly applied to transport between two inland points on an international river within one State, although the term grand cabotage is sometimes incorrectly applied to transnational transport between the inland ports of different riparian States on the same waterway. River cabotage properly so called is sometimes also referred to as local transport. Finally, the term has also been adopted to describe commercial air transport between airports situated in the same State." Robert C. Lane, "Cabotage," in 1 Encyclopedia ot Public International Law 519--20 (1992).

ca'canny strike. See slowdown strike under STRIKE. cacicazgos (kah-see-kahz-gohs). Land held in entail by caciques (leaders of Indian villages) and their descen­ dants in Spanish America. cadastre (b-das-t~r). A survey and valuation of real estate in a county or region compiled for tax purposes. - Also spelled cadaster. - cadastral, adj.

231

calendar

cadena (ka-day-n632(2); Federal Civil Procedure C=> 1991, 1993; Trial (;=9.J court calendar. See COURT CALENDAR. short-cause calendar. A trial calendar on which a short-cause trial may be scheduled for the 10th day after the opposing party is given notice. _ The request for scheduling must include an affidavit that the trial will take no longer than a certain specified period (e.g., an hour). [Cases: Trial special calendar. A calendar marked with court cases that have been specially set for hearing or trial. See special setting under SETTING. [Cases: Trial C=> 13.] trial calendar. See DOCKET (2). 3. A list of bills reported out of a legislative commit­ tee for consideration by the entire legislature. 4. Par­ liamentary law. AGENDA. - Also termed calendar of business. action calendar. The list ofbusiness awaiting a deliber­ ative assembly's vote. Also termed action agenda. consent calendar. A list of business awaiting a delib­ erative assembly's vote that is not expected to be sub­ stantially opposed and is therefore scheduled for a vote without debate, or for automatic adoption unless a member objects. Also termed consent agenda; unanimous-consent agenda; unanimous-consent calendar. "An assembly with a large number of routine or noncon­ troverSial matters on its agenda may find it not only con­ venient but expeditious to consider these matters under unanimous consent procedure. This gives every member an opportunity to object. At the same time, it gives the presiding officer an opportunity to dispose of a great deal of the agenda confronting the assembly quickly and effi­ ciently, particularly when it would be most helpful to the assembly to get its job done. This can even be done by taking en bloc action (that is, dispOSing of various items at the same time without taking separate consideration of them) when matters are not controversial or are of minor importance to the assembly, though every member has the right to object." Floyd M. Riddick & Miriam H. Butcher, Riddick's Rules of Procedure 56 (1985).

calendar

debate calendar. The list of business that is awaiting a deliberative assembly's vote and that is not on the consent calendar. - Also termed debate agenda. report calendar. The list of business coming before a deliberative assembly for information only rather than for its vote. _ An item on the report calendar Also may be the subject of a vote in the future. termed report agenda. special-order calendar. The list of business scheduled as special orders. - Also termed special-order agenda. See special order under ORDER (4). unanimous-consent calendar. See consent calendar. calendar; vb. 1. To place an important event on a calendar, esp. so that the event will be remembered. 2. To place a case on a calendar. calendar call. (1918) A court session in which the judge calls each case awaiting trial, determines its status, and assigns a trial date. calendar day. See DAY. calendar month. See MONTH (1). calendar motion. See MOTION (1). calendar of prisoners. Hist. A list kept by the sheriffs containing the names of all the prisoners in custody alongside notes about each prisoner's present and past convictions. calendar year. See YEAR (1). Calends (kal-;mdz). Roman law. In the ancient Roman Also spelled calendar, the first day of the month. Kalends. ct: IDES; NONES. call, n. (13c) 1. A request, demand, or command, esp. to come or assemble; an invitation or summons. call for the orders of the day. Parliamentary law. A demand that the meeting proceed according to its order of business. - Also termed call for the regular order. callfor the regular order. See call for the orders of the day. call ofa meeting. Parliamentary law. Formal written notice of a meeting's time and place, sometimes stating its business, sent to each member in advance. call of the house. A legislative body's order compel­ ling each absent member's attendance, usu. instruct­ ing that the sergeant at arms arrest and present each absentee. "In legislative bodies or other assemblies that have legal power to compel the attendance of their members, a pro· cedure that can be used to obtain a quorum, if necessary, is the motion for a Call of the House. This is a motion that unexcused absent members be brought to the meeting under arrest. A Call of the House is not applicable in vol­ untary societies." Henry M. Robert, Robert's Rules of Order Newly Revised § 40, at 339 (10th ed. 2000).

call ofthe roll. See roll call. call to order. Parliamentary law. 1. The chair's dec­ laration that a deliberative assembly has properly convened and is ready for business. Also termed

232

convocation. 2. The chair's request that a member follow the applicable rules or observe appropriate decorum. See DECORUM. quorum call. A roll call to determine whether a quorum is present. See QUORUM. roll call. Parliamentary law. A calling of the roll to take attendance or a vote. See roll-call vote under VOTE (4). - Also termed call of the roll. 2. A demand for payment of money. margin call. A securities broker's demand that a customer put up money or stock as collateral when the broker finances a purchase of securities. - A margin call usu. occurs when the market prices of the securities are falling. Also termed maintenance call. [Cases: Brokers C=:>24(2).] 3. See call option under OPTION. 4. A demand for the presentation of a security (esp. a bond) for redemption before the maturity date. [Cases: Corporations (::::,473.] 5. A landmark designating a property boundary. _ The landmarks are chosen by the surveyor and recorded in his field notes or in the accompanying deed. See DIREC­ TORY CALL; LOCATIVE CALL; METES AND BOUNDS.

call, vb. (bef. 12c) 1. To summon. 2. To demand payment of money. 3. To redeem (a bond) before maturity. callable, adj. (Of a security) redeemable by the issuing corporation betore maturity. See REDEMPTION. [Cases: Corporations C=:>68.] callable bond. See redeemable bond under BOND (3). callable preferred stock. See STOCK. callable security. See redeemable security under SECURITY.

called meeting. See special meeting under MEETING. call equivalent position. Securities. A security position that increases in value as the value of the underly­ ing equity increases. - It includes a long convertible security, a long call option, and a short put option. SEC Rule 16a-l(b) (17 CFR § 240.16a-l(b)). [Cases: Securities Regulation C-'JS.2S(3).J call for the orders of the day. See CALL (1). call for the regular order. See call for the orders of the day under CALL (1). calling to the bar. See CALL TO THE BAR. call loan. See LOAN. call of a meeting. See CALL (1). call of the house. See CALL (1). call of the roll. See roll call under CALL (1). call option. See OPTION, call patent. See PATENT (2). call premium. The percentage amount of a bond's face value that a company pays, along with the face value, to redeem a callable bond; the difference between a bond's call price and its par value. call price. See PRICE.

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call-protection clause. A clause in a bond issue or a callable preferred stock issue prohibiting the issuer from recalling the during a specified period. [Cases: Corporations call the question. Parliamentary law. 1. (Of a member) to move to close debate. 2. (Of a deliberative assembly) to adopt a motion to close debate. See CLOSE DEBATE. call to order. See CALL (1). call to the bar, n. lhe admission of a person to practice law.• This common phrase is a loan translation of the Latin ad barram evocatus ("called to the bar"). See AD BARRAM EVOCA TUS. Also termed calling to the bar. [Cases: Attorney and Client call up, vb. Parliamentary law. To bring before a delibera­ tive assembly business that is ready for consideration . calumnia (k-ldm-nee-d), n. pl. [Latin "vexatious pro­ ceedings"] Roman law. Vexatiously instituted civil proceedings or knowingly false criminal charges made against someone .• The victim had civil or criminal remedies depending on the circumstances. calumniae judicium (b-ldm-nee-ee joo-dish-ee-m). [Latin "action for vexation"] Roman law. A countersuit that a defendant who was maliciously sued could bring after winning a judgment in the principal action. calumniae jusjurandum (b-Idm-nee-ee js-j-ran­ dm). [Law Latin "oath of calumny"] Roman law. An oath given by a litigant that he is not suing or defend­ ing vexatiously. calumniate (k. 2. To formally count ballots and report the returns . "When all the ballots have been collected, including those of the presiding officer, the secretary, and the tellers, the ballots are canvassed by the tellers, Canvassing the ballots means more than just counting, It includes evaluating ballots to identify those that are invalid, blank, cast for illegal nominees, illegible, abstaining, and the like, and reporting the total results to the presiding officer for his announcement of the results." Ray E. Keesey, Modem Par­ liamentary Procedure 113 (l994).

3. To solicit political support from voters or a voting district; to take stock ofpublic opinion . canvass,

n. cap, n. (1947) An upper limit, such as a statutory limit on the recovery in a tort action or on the interest a bank can charge. - cap, vb.

capacitate (b-pas-.• Unless necessary to show the court's jurisdiction, a plaintiffs pleadings need not assert the legal capacity ofany party. A party wishing to raise the issue of capacity must do so by specific negative pleading. Fed. R. Civ. P.9(a). Also termed (specif.) capacity to sue; power over oneselj: See STANDING. Cf. I,ACK OF CAPACITY. [Cases: Contracts C:=> 11,92; Federal Civil Procedure C=::> Ill; Infants 5,6,22,46,70.] 3. The mental ability to understand the nature and effect of one's acts 46; Homicide (;::;816.] disposing capacity. See testamentary capacity, testamentary capacity. (1819) The mental ability that a person must have to prepare a valid will. • This capacity is often described as the ability to recognize the natural objects of one's bounty, the nature and extent ofone's estate, and the fact that one is making a plan to dispose of the estate after death. Traditionally, the phrase "oflegal age and sound mind" refers to the

testator's capacity. - Also termed disposing capacity; disposing mind; sound mind. See age ofcapacity under AGE. [Cases: Wills (;:::J21-55.] 4. The ability or power to do or experience some­ thing. decreased capacity. A diminution in a person's physical ability because of an illness, injury, or impairment. capacity defense. See DEFENSE (1). capacity to sue. See CAPACITY (2). capax doli (kay-paks doh-h). See DOLI CAPAX. capax negotii (kay-paks ni-goh-shee-l), adj. [Latin "capable' of entering into a transaction") (Of a person) having capacity to enter into a contract; capable of transacting business. cape (kay-pee). His!. [Latin "take"] A writ filed to recover possession ofland. cape magnum (kay-pee mag-nam). [Latin "grand" cape] A writ granting possession ofland before a Also termed tenant's appearance in the action. magnum cape; grand cape. cape parvum (kay-pee pahr-vam). [Latin "little" cape] A writ for the recovery ofland issuing after the appearance of the tenant in the action. Also termed petit cape. "Cape is a writ judicial I touching plee of land or tenements, so tearmed (as most writs be) of that word in itselfe, which carieth the especial lest intention or end thereof. And this writ is divided in (Cape magnum, & Cape parvum:) both which ... take hold of things immoveable, and seeme to differ betweene themselves in these points. First, because (cape magnum) or the (grand Cape) Iyeth before appear­ ance, and (Cape parvum) afterward. Secondly, the (Cape magnum) summoneth the tenent to aunswer to the default, and over to the demaundant: (Cape parvum) summoneth the tenent to aunswer to the default onely: and therefore is called (Cape parvum) or in French English (petit Cape.)" John Cowell. The Interpreter (1607).

capias (kay-pee-as or kap-ee-as). [Latin "that you take"] (15c) Any of various types of writs that require an officer to take a named defendant into custody.• A capias is often issued when a respondent fails to appear or when an obligor has failed to pay child support. Also termed writ of capias; body execution. [Cases: Process capias ad audiendumjudicium (ad aw-dee-en-dam joo-dish-ee-.->m). [Latin "that you take to hear the judgment"] In a misdemeanor case, a writ issued to bring the defendant to hear the judgment to be imposed after having failed to appear. capias ad computandum (ad kom-pyoo-tan-dam). [Latin "that you take for computation"] Hist. A writ issued when a debtor has failed to appear and make account after losing in an action of account render. See ACCOUNTING (3). capias adfaciendum. Hist. A writ used to enforce a creditor's judgment against a debtor by authorizing the debtor's arrest and imprisonment.

capias ad respondendum (ad ree-spon-den-dam). [Latin "that you take to answer"] A writ command­ ing the sheriff to take the defendant into custody to ensure that the defendant will appear in court. Abbr. ca. resp.; ca. re.; ca. ad reo capias ad satisfaciendum (ad sat-is-fay-shee-en -dam). [Latin "that you take to satisfy"] Hist. A postjudgment writ commanding the sheriff to imprison the defen­ Abbr. ca. sa. dant until the judgment is satisfied. [Cases: Execution C:')42 1.] capias extendi facias (ek-sten-dr fay-shee-as). [Latin "take for extending"] Hist. A writ ofexecution issued against one who is indebted to the Crown, command­ ing the sheriff to arrest the debtor. capias in withernam (kay-pee-as in with-.->f-nahm). [Law Latin "taking again"] A writ authoriZing the sheriff to seize the goods or cattle of a wrongful dis­ trainor. - Also termed writ ofwithernam. See WITH­ ERNAM.

capias pro fine (kay-pee-9.) 3. Hist. An agreement between a Christian state and a non-Christian one (such as the Ottoman Empire) giving subjects of the former certain privileges in the territory of the latter. 4. Hist. International law. A special, usu. nonreciprocal, right established by a treaty through which one nation could exercise jurisdiction over its citizens and their property within the territory of another nation .• Capitulations were a common feature of trade treaties in particular because merchants often accumulated wealth in foreign nations. Capitulations became disfavored before World War I and were gradually abolished during the 20th century. - capitulate, vb. capitulatory, adj. CAPJ. abbr. See chief administrative patent judge under JUDGE. capper. L One who solicits business for an attorney. See BARRATRY (1); RUNNER (2). 2. Slang. A person who acts as a lure for others (as in a gambling or confidence game). - Also termed (in sense 2) stool pigeon. cap rate. See CAPITALIZATION RATE. caprice (k;}-prees), n. 1. Arbitrary or unfounded motiva­ tion. 2. The disposition to change one's mind impul­ sively. capricious (kd-prish-dS), adj. (17c) 1. (Of a person) char­ acterized by or gUided by unpredictable or impulsive behavior. 2. (Of a decree) contrary to the evidence or established rules oflaw. Cf. ARBITRARY. CAPTA. abbr. CHILD ABUSE PREVENTION AND TREAT­ MENTACT. captain-of-the-ship doctrine. In medical-malpractice law, the doctrine imposing liability on a surgeon for the actions of assistants who are under the surgeon's control but who are employees of the hospital, not the surgeon. [Cases: Health (;::;:>787.] captain's mast. See MAST (1). captation (kap-tay-sh;}n). Civil law. Coercion ofa testator resulting in the substitution of another person's desires for those ofthe testator.• The term formerly applied to the first stage of a trance. Cf. UNDUE INFLU­ ENCE. [Cases: Wills captator (kap-tay-tdr). Civil law. A person who obtains or tries to obtain a gift or legacy through artifice. See UNDUE INFLUENCE. captio (kap-shee-oh). Hist. 1. An arrest of a person, or a seizure of a thing. 2. The holding of court. caption_ (17c) L The introductory part of a court paper stating the names ofthe parties, the name ofthe court, the docket or file number, and a description of the paper. Fed. R. Civ. P. lO(a). Cf. STYLE (1). [Cases: Federal Civil Procedure Pleading (;::;:>4,43-46.]2. The arrest or seizure a person by legal process. 3. See HEADING.

captive, n. 1. A person who is unlawfully seized and held by another. Cf. PRISONER. 2. PRISONER OF WAR. 3. An animal, esp. a wild one, that is caught and kept confined. captive-audience doctrine. 1. Constitutional law. The principle that when the listener cannot, as a practical matter, escape from intrusive speech, the speech can be restricted. [Cases; Constitutional Law ~ 1502.] 2. Labor law. The rule that prohibits either party to a union election from making a speech on company time to a mass assembly of employees within 24 hours ofan election. - Also termed captive-audience rule. captive insurance. See INSURANCE. captive insurance company. See INSURANCE COM­ PANY.

captive insurer. See captive insurance company under INSURANCE COMPANY.

captive law firm. See LAW FIRM. capture. See RULE OF CAPTURE. capture-and-hold rule. Oil & gas. For royalty-calcula­ tion purposes, the doctrine that "production" occurs when oil or gas is pumped to the surface and stored, whether at the wellhead or elsewhere on the leased property. Cf. MARKETABLE-PRODUCT RULE. [Cases: Mines and Minerals ~ 79.1(1).] caput (kap-~t), n. [Latin "head"] 1. Hist. A head, chief, or principal person. 2. Roman law. A person. 3. Roman law. A person's condition or status. "A 'natural,' as opposed to an 'artificial,' person is such a human being as is regarded by the law as capable of rights or duties: in the language of Roman law as having a 'status.' , , , Besides possessing this general legal capacity, or status, a man may also possess various special capaci­ ties, such as the 'tria capita' of liberty, citizenship, and family rights, A slave having, as such, neither rights nor liabilities, had in Roman law, strictly speaking, no 'status,' 'caput,' or 'persona.' ... It must however be remembered that the terms 'persona' and 'caput' were also used in popular language as nearly equivalent to 'homo,' and in this sense were applied to slaves as well as to freemen." Thomas E, Holland, The Elements ofJurisprudence 80-81 (4th ed. 1888),

caput comitatus (kap-~t kom-~-tay-t~s), [Latin "head of the county"] Hist. The head of a county; a sheriff. caput gerat lupinum (kap-;:)t jeer-;:)t 100-pI-n~m). [Latin "let him bear the head of a wolf"] Hist. An outlawed a lone wolf open to felon considered a pariah attack by anyone. See OUTLAWRY. "He who breaks the law has gone to war with the commu­ nity; the community goes to war with him. It is the right and duty of every man to pursue him, to ravage his land, to burn his house, to hunt him down like a wild beast and slay him; for a wild beast he is; not merely is he a 'friend­ less man,' he is a wolf. , , . Caput gerat lupinum, , in these words the court decreed outlawry," 2 Frederick Pollock & Frederic W, Maitland, The History of English Law Before the Time of Edward 1449 (2d ed, 1899),

caput mortuum. Archaic. A matter or thing that is void as to all persons and for all purposes. carcanum (kahr-kay-n;:)m). "iron collar, pillory"] Hist. A prison or workhouse.

carcelage (kahr-s~-lij). [fro Latin carcer "prison"] Hist. Prison fees. career (kahr-s~r), n. [Latin "jail, prison"] Hist. A prison or jail, esp. one used to detain rather than punish.• Career, as used in English law and Roman law, usu, referred to a jail used as a place of detention during trial or after sentence pending execution, rather than as a place of punishment. The modern term incarceration derives from this word. cardinal-change doctrine. Contracts. The principle that if the government makes a fundamental, unilat­ eral change to a contract beyond the scope of what was originally contemplated, the other party (usu. a con­ tractor) will be released from the obligation to continue work under the contract. • A contractor's allegation of cardinal change is essentially an assertion that the government has breached the contract. [Cases: United States (;.-=>73(17).] cardo controversiae (kahr-doh kon-tr~-var-shee-ee). [Law Latin] Hist. The hinge ofthe controversy; the main point of a controversy. ca. reo See capias ad respondendum under CAPIAS. care, n, (bef. 12c) 1. Serious attention; heed <written with care>. 2. Under the law of negligence or of obligations, the conduct demanded ofa person in a given situation, • Typically, this involves a person's giving attention both to possible dangers, mistakes, and pitfalls and to ways of minimizing those risks <standard of care>. See DEGREE OF CARE; REASONABLE PERSON. [Cases: Neg­ ligence (::;:::'230,] adequate care. See reasonable care.

due care. See reasonable care.

extraordinary care. See great care.

great care. (lSc) 1. The degree of care that a prudent

person eXercises in dealing with very important personal affairs. 2. The degree of care exercised in a given situation by someone in the business or pro­ fession of dealing with the situation. Also termed extraordinary care; high degree ofcare; utmost care. high degree ofcare. See great care. highest degree ofcare. l. The degree of care exercised commensurate with the danger involved. [Cases: Negligence 3, 235.] common carrier. (15c) A commercial enterprise that holds itself out to the public as offering to transport freight or passengers for a fee.• A common carrier is generally required by law to transport freight or passengers or freight, without refusal, if the approved fare or charge is paid. - Also termed public carrier. [Cases: Carriers (::=>4.] "[AJ 'common carrier' is bound to take all goods of the kind which he usually carries, unless his conveyance is full, or the goods be specially dangerous; but may charge differ· ent rates to different customers." Thomas E. Holland, The Elements ofJurisprudence 299 (l3th ed. 1924).

marine carrier. A carrier operating on navigable waters subject to the jurisdiction of the United States. non-vessel-operating common carrier. Maritime law. A freight forwarder that does not own the means of transportation, but that contracts with a shipper to transport freight, and with a carrier to perform the transportation.• The non-vessel-operating common carrier becomes the carrier in the contract with the original shipper, and the shipper in the contract with the eventual carrier. See FREIGHT FORWARDER. Abbr. NVOCC. [Cases: Shipping (::=> 112.] private carrier. (18c) Any carrier that is not a common carrier by law.• A private carrier is not bound to accept business from the general public. - Also termed contract carrier. [Cases: Automobiles (::=>76; Carriers (::=>3.] 2. INSURER. carrier's lien. See LIEN. Carroll doctrine. The principle that a broadcast licensee has standing to contest any grant of a competitive license by the Federal Communications Commission because the grant could lead to a diminution in broad­ cast service by causing economic injury to an existing licensee. Carroll Broadcasting Co. v. FCC, 258 F.2d 440 (D.C. Cir. 1958). [Cases: Telecommunications (::=>

mo.]

carry, vb. 1. To sustain the weight or burden of; to hold or bear <more weight than a single person can carry>. 2. To conveyor transport . 3. To possess and convey (a firearm) in a vehicle, including the locked glove compartment or trunk of a car .• The United States Supreme Court adopted this defini­ tion in interpreting the phrase carries a firearm as used in a statute imposing a mandatory prison term on a person who uses or carries a firearm while commit­ ting a drug-trafficking crime. Muscarello v. U.S., 524 U.S. 125, 118 S.Ct. 1911 (1998). [Cases: Wills (::=>6.] 4. In a figurative sense, to possess or hold (insurance, etc.)

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. 5. Parlia­ mentary law. To adopt.• In this sense, the verb may be either intransitive or transi­ tive (in a passive construction) . See ADOPTION (5). 6. To provide funds or credit for the payment of (stock, etc.), often as an advance, for an agreed-on period . 7. To absorb the cost of holding or having, usu. temporarily . carry away, vb. To take or move (stolen property, etc.). • The traditional count for larceny was that the defen­ dant "did steal, take, and carry away" the property. A "carrying away" can be a slight movement of the property. See ASPORTATION. [Cases: Larceny (::=> 17; Robbery (::=> 10.] carryback. (1942) Tax. An income-tax deduction (esp. for a net operating loss) that cannot be taken entirely in a given period but may be taken in an earlier period (usu. the previous three years). - Also termed loss carryback; tax-loss carryback. Cf. CARRYOVER. [Cases: Internal Revenue (::=> 3438; Taxation (::=>3515.] carryforward. See CARRYOVER. carrying away. See ASPORTATION. carrying back the date of invention. See ANTEDATING OF A PRIOR-ART REFERENCE.

carrying charge. 1. A cost, in addition to interest, paid to a creditor for carrying installment credit. 2. Expenses incident to property ownership, such as taxes and upkeep. carrying cost. See COST (1). carrying value. See BOOK VALUE (1). carryover. (1925) Tax. An income-tax deduction (esp. for a net operating loss) that cannot be taken entirely in a given period but may be taken in a later period (usu. the next five years). - Also termed loss carryover; tax-loss carryover; carryforward; loss carryforward; tax-loss car­ ryforward. Cf. CARRYBACK. [Cases: Internal Revenue (::=>3438,3439; Taxation (::=>3515.] carryover basis. See BASIS. carta (kahr-t368.] 2. Rist. A procedure used by the Court of Chancery to refer difficult legal questions to a com­ mon-law court .• This procedure was abolished in 1852. 3. English law. An appeal from a Magistrates' Court to the Divisional Court of Queen's Bench on a point of criminal law.• After ruling, the magistrate states the facts for the appeal and the Queen's Bench rules on the question of law presented by the magis­ trate's ruling. congressional-reference case. A request by Congress for the United States Court ofClaims to give an advisory opinion on the merits of a non pension claim against the United States. See 28 USCA §§ l492, 2509. inactive case. (1981) A pending case that is not pro­ ceeding toward resolution .• This may occur for several reasons, such as non service, want of prose­ cution, or (in a criminal case) the defendant's having absconded. instant case. See case at bar. present case. See case at bar. reference case. Canadian law. An advisory opinion issued by the Supreme Court of Canada at the request of the executive or legislative branch of the federal government. • A reference is exceptional because

the opinion interprets, and often resolves, a dispute even though no case or controversy is presented to the court. See, e.g., Reference re Secession of Quebec, [1998] 2 S.C.R. 217. special case. See case reserved (1). test case. (1894) 1. A lawsuit brought to establish an important legal principle or right.• Such an action is frequently brought by the parties' mutual consent on agreed facts - when that is so, a test case is also sometimes termed amicable action or amicable suit. "The suit is spoken of, in the affidavits filed in support of it, as an amicable action, and the proceeding defended on that ground. But an amicable action, in the sense in which these words are used in courts of justice, presupposes that there is a real dispute between the parties concern· ing some matter of right. And in a case of that kind it sometimes happens, that, for the purpose of obtaining a decision of the controversy, without incurring needless expense and trouble, they agree to conduct the suit in an amicable manner, that is to say, that they will not embar· rass each other with unnecessary forms or technicalities, and will mutually admit facts which they know to be true, and without requiring proof, and will bring the point in dispute before the court for decision, without subjecting each other to unnecessary expense or delay. But there must be an actual controversy, and adverse interests. The amity consists in the manner in which it is brought to issue before the court. And such amicable actions, so far from being objects of censure, are always approved and encouraged, because they facilitate greatly the administration of justice between the parties. The objection in the case before us is, not that the proceedings were amicable, but that there is no real conflict of interest between them; that the plaintiff and defendant have the same interest, and that interest adverse and in conflict with the interest of third persons, whose rights would be seriously affected if the question of law was decided in the manner that both of the parties to this suit desire it to be." Lord v. Veazie, 49 U.S. 251, 255 (1850) (Taney,

c.n

2. An action selected from several suits that are based on the same facts and evidence, raise the same question of law, and have a common plaintiff or a common defendant.• Sometimes, when all parties agree, the court orders a consolidation and all parties are bound by the decision in the test case. - Also termed test action. 2. A criminal investigation . 3. An individual suspect or convict in relation to any aspect of the criminal-justice system . 4. An argument . 5. An instance, occurrence, or situation . 6. See trespass on the case under TRESPASS . case abstract. See CASE NOTE. case agreed on. See case stated (1) under CASE. casebook. (18c) A compilation of extracts from instruc­ tive cases on a particular subject, usu. with commentary and questions about the cases, designed as a teaching aid. See SOCRATIC METHOD. Cf. HORNBOOK. casebook method. (1915) An inductive system of teaching law in which students study specific cases

to learn general legal principles .• Professor Christo­ pher C. Langdell introduced the technique at Harvard Law School in 1869. The casebook method is now the most widely used form of instruction in American law schools. - Also termed case method; case system; Langdell method. Cf. SOCRATIC METHOD; HORNBOOK METHOD.

case brief. See CASE NOTE. case evaluation. 1. Assessment of a case's strengths and weaknesses, along with the cost of litigation and the amount ofpotential liability or recovery, typically done to decide whether to accept a case or to advise a client or potential client about how to proceed. 2. MEDIATION (1). caseflow. (1957) 1. The movement of cases through the judicial system, from the initial filing to the final appeal. 2. An analysis of that movement. case-in-chief. (1853) 1. The evidence presented at trial by a party between the time the party calls the first witness and the time the party rests. 2. The part of a trial in which a party presents evidence to support the claim or defense. Cf. REBUTTAL (1), (2). caselaw. (1861) The law to be found in the collection of reported cases that form all or part of the body of law within a given jurisdiction. - Also written case law; case-law. - Also termed decisional law; adjudicative law; jurisprudence; organic law. "Case law in some form and to some extent is found wherever there is law. A mere series of decisions of individ· ual cases does not of course in itself constitute a system of law. But in any judicial system rules of law arise sooner or later out of the solution of practical problems, whether or not such formulations are desired, intended or consciously recognized. These generalizations contained in, or built upon, past decisions, when taken as normative for future disputes, create a legal system." Karl N. Llewellyn, "Case Law" in 3 Encv. Soc. Sci. 249 (1930).

case lawyer. An attorney whose knowledge is largely confined to a specific field of expertise. "A working lawyer cannot expect to keep abreast of all this output of ideas, but he can at least study some portion so as to liberalize his views of law and to avoid the reproach of being a mere case lawyer." Lord Wright, The Study of Law, 54 Law Q. Rev. 185, 185 (1938).

caseload. (1938) The volume of cases assigned to a given court, agency, officer, judge, law firm, or lawyer. case made. See case reserved (1) under CASE. case-management order. A court order designed to control the procedure in a case on the court's docket, esp. by limiting pretrial discovery. - Abbr. CMO. [Cases: Federal Civil Procedure (';:::J 1935; Pretrial Pro­ cedure (';:::J747.] case method. See CASEBOOK METHOD. case note. A short statement summarizing a case, esp. the relevant facts, the issues, the holding, and the court's reasoning. - Sometimes written casenote. - Also termed brief, case brief; case statement; case abstract. case number. The number assigned to a lawsuit when it is filed with the clerk of the court.• Each case has

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cashier

a distinct number that distinguishes it from all other suits filed within the jurisdiction. case of first impression. See CASE. case-or-controversy requirement. (1937) The consti­ tutional requirement that, for a federal court to hear a case, the case must involve an actual dispute. See CON­ 'I'ROVERSY (3); advisory opinion under OPINION (1). [Cases: Federal Courts ~~ 12.] 'The courts of the United States do not sit to decide ques­ tions of law presented in a vacuum, but only such questions as arise in a 'case or controversy.' The two terms can be used interchangeably, for, we are authoritatively told, a 'controversy,' if distinguishable at all from a 'case,' is distin­ guishable only in that it is a less comprehensive term, and includes only suits of a civil nature." Charles Alan Wright, The Law of Federal Courts 60 (5th ed. 1994).

case plan. A written procedure for the care and man­ agement of a child who has been removed from his or her home and placed in foster care or in an institution. • The case plan includes (1) a description of the place where the child has been placed, (2) a plan for provid­ ing the child with safe and proper care, and (3) a plan for services that will be provided to the child's parents. Each state must have a case-review system formulated to ensure that the child is placed in the least restrictive and most appropriate place and that the plan is in the best interests of the child; the plan must be reviewed every six months. See ADOPTION AND SAFE FAMILIES ACT. [Cases: Infants case reserved. See CASE. case stated. See CASE. case statement. See CASE NOTE. case system. See CASEBOOK METHOD. case-within-a-case rule. Torts. lhe requirement that a legal-malpractice- action plaintiff show that, but for the attorney's negligence, the plaintiff would have won the case underlying the malpractice action. [Cases: Attorney and Client (;=> 112.] cas fortuit (kah for-twee). [French "fortuitous case"] Insurance. A unforeseeable event; an inevitable accident; FORTUITOUS EVENT. cash, n. (16c) 1. Money or its equivalent. 2. Currency or coins, negotiable checks, and balances in bank accounts. - cash, vb. petty cash. Currency kept on hand for incidental expenditures. cash-against-documents sale. See documentary sale under SALE. cash-and-carry clause. Int'llaw. A regulation that, before U.S. involvement in World War II, allowed bel­ ligerent countries to pay cash for goods whose export was prohibited.• Formally, this regulation was entirely neutral, but in practice it favored Great Britain. cash bail. See BAIL (1). cash-basis accounting method. See ACCOUNTING METHOD.

cash book. An account book of all cash received and paid out by a business. cash budget. A period-by-period schedule of a business's opening cash on hand, estimated cash receipts, cash disbursements, and cash balance.• A cash budget is used to project a business's cash receipts and disburse­ ments over some future period. cash collateral. See COLLATERAL. cash cycle. The time it takes for cash to flow into and out of a business, such as the time between the purchase of raw materials for manufacture and the sale of the finished product. cash discount. See DISCOUNT. cash dividend. See DIVIDEND. cash equivalent. A short-term security that is liquid enough to be considered equivalent to cash. cash-equivalent doctrine. Tax. The doctrine requiring income to be reported even ifit is not cash, as when the taxpayer barters to receive in-kind payments. [Cases: Internal Revenue (;=> 3116, 37l4.] cash-expenditure method. Tax. A technique used by the IRS to reconstruct a taxpayer's unreported income by comparing the amount spent on goods and services during a given period with the income reported for that period .• If the expenditures exceed the reported revenue, the IRS treats the difference as taxable income. [Cases: Internal Revenue (>4530.1.] cash flow. (1954) 1. The movement of cash through a business, as a measure of profitability or liquidity. 2. The cash generated from a business or transaction. 3. Cash receipts minus cash disbursements for a given period. Sometimes written cashflow. cash flow per common share. The cash flow from oper­ ations minus preferred stock dividends, divided by the number of outstanding common shares. discounted cash flow. A method ofevaluating a capital investment by comparing its projected income and costs with its current value .• Discounted cash flow is used to determine the value of a company by cal­ culating the present value of its future cash flows. In theory, the value of the corporation's assets equals the present value of the expected cash flow generated by those assets. - Also termed discounted-cash-flow method. Abbr. DCF; DCF method. incremental cash flow. The net increase in cash flow attributable to a particular capital investment. negative cash flow. A financial situation in which cash outflow exceeds cash inflow. See INSOLVENCY. net cash flow. Cash inflow minus cash outflow. cashier, n. 1. One who receives and records payments at a business. 2. A bank's or trust company's executive officer, who is responsible for banking transactions. [Cases: Banks and Banking (;=> 105(3)-109(3),314.] cashier, vb. (16c) To dismiss from service dishonorably .

cashier's check

cashier's check. See CHECK. cashlite. See AMERCEMENT. cash merger. See MERGER. cash-option transaction. Mergers & acquisitions. A pro­ vision in a merger agreement giving the target com­ pany's stockholders a choice between receiving either a tax-free exchange of stock or a taxable cash buyout. cash or deferred arrangement. A retirement -plan provi­ sion permitting an employee to have a certain amount of compensation paid in cash or contributed, on behalf ofthe employee, to a profit-sharing or stock-bonus plan. • A 401(k) plan is a type of cash or deferred arrange­ ment. Abbr. CODA. cashout, n. (1971) An arrangement by a seller to receive the entire amount of equity in cash rather than retain an interest in the property. - cash out, vb. cash-out merger. See cash merger under MERGER. cash-refund annuity. See ANNUITY. cash sale. See SALE. cash surrender value. See VALUE (2). cash tender offer. See TENDER OFFER. cash-transaction report. IRS Form 4789, which requires banks and other financial institutions to report cash transactions above a certain amount. [Cases: Internal Revenue cash value. 1. Seefair market value under VALUE (2). 2. See full cash value under VALUE (2). cash-value option. See OPTION. casing. Oil & gas. The pipe in a wellbore hole, cemented into place to prevent pollution and to protect the hole. intermediate casing. Casing that protects deep forma­ tions against pollution from drilling and producing operations. production casing. Wellbore pipe through which oil and gas is produced .• Production casing is the last pipe set in the hole. surface casing. Casing that protects groundwater against pollution from drilling and producing oper­ ations.• Surface casing is the first pipe set in the hole. casinghead gas. Oil & gas. Natural gas in a liqUid solution with crude oil, produced at the casinghead (top) ofa oil well. • CaSinghead gas separates from the oil at the time of production or shortly afterward. casing point. Oil & gas. The point at which a well has been drilled to the desired depth and the owners must decide whether to place production pipe ("casing") in the hole to complete and equip the well for produc­ tion. cassare (k. See STOCK CER­ TIFICATE. 2. A document certifying the bearer's status or authorization to act in a specified way . 3. A notice by one court to another court of the action it has taken <when issuing its opinion, the Seventh Circuit sent a certificate to the Illinois Supreme Court>. certificate creditor. See CREDITOR. certificated security. See SECURITY. certificate into chancery. English law. The decision of a common-law court on a legal question submitted by the chancery court. certificate land. See LAND. certificate of acknowledgment. See ACKNOWLEDGMENT (5).

certificate of amendmeut. A document filed with a state corporation authority, usu. the secretary of state, reflecting changes made to a corporation's articles of incorporation. [Cases: Corporations (;::::040.] certificate of appealability. In an appeal from the denial of federal habeas corpus relief, a document issued by a United States circuit judge certifying that the prisoner showed that a constitutional right may have been denied. 28 USCA § 2253(c)(2).• The prisoner does not have to show that the case would succeed on the merits, only that reasonable jurists would find the claim at least debatable. Miller-EI v. Cockrell, 537 U.S. 322, 123 S.Ct. 1029, 1039 (2003). If the certificate is not issued, no appeal is possible. 28 USCA § 2253 (c)(l); Fed. R. App. P. 22(b). - Abbr. COA. Also termed (before 1996) certificate ofprobable cause (Abbr. CPC); certificate of reasonable doubt; writ ofprobable cause . [Cases: Habeas Corpus (;::::0818.] certificate of assize. Hist. In England, a writ granting a retrial. • The certificate of assize has been replaced by a court order granting a new trial.

certificate of authority. (1808) 1. A document authen­ ticating a notarized document that is being sent to another jurisdiction.• The certificate assures the out-of-state or foreign recipient that the notary public has a valid commission. - Also termed certificate of capacity; certificate of official character; certificate of authentication; certificate ofprothonotary; certificate of magistracy; apostille; verification. 2. A document issued by a state agency, usu. the secretary of state, granting an out-of-state corporation the right to do business in the state. Also termed (in some states) certificate of qualification. [Cases: Corporations C=c648.] certificate of bad faith. In a case in which a party has been allowed to proceed in a United States District Court in forma pauperis, a court-issued document attesting that an appeal by that party would be frivo­ lous and therefore should not be allowed unless the party pays the ordinary filing fees and costs. 28 USCA § 1915 (a)(3). Cf. CERTIFICATE OF GOOD FAITH. [Cases: Federal Civil Procedure C=c2734.] certificate of capacity. See CERTIFICATE OF AUTHOR­ ITY (1).

certificate of conference. (l979) A section of a pleading or motion filed with the court, usu. contained sepa­ ratelyon a page near the end of the document, whereby the party filing the pleading or motion certifies to the court that the parties have attempted to resolve the matter, but that a judicial determination is needed because an agreement could not be reached .• Courts require some motions to have a certificate of confer­ ence attached to them. This compels the parties to try to resolve the issue themselves, without burdening the court unless necessary. Fed. R. Clv. P. 26(c), 37. certificate of convenience and necessity. A certificate issued by an administrative agency granting operat­ ing authority to a utility or transportation company. ­ Also termed certificate of public convenience and necessity. [Cases: Automobiles Carriers Public Utilities C=c 113.] certificate of conviction. A signed and certified warrant authorizing a person's imprisonment after an adjudica­ tion of guilt. certificate of correction. 1. A document that corrects an error in an official document, such as a certificate of incorporation. 2. Patents. A document issued by the U.S. Patent and Trademark Office after a patentee or assignee rectifies a minor error unrelated to either questions of ownership or else defects in a patent appJi­ cation's specifications or drawings .• The certificate can correct only three types oferrors: (1) mistakes made by the PTO, (2) minor clerical or typographical errors, and (3) the omission or misidentification of an inventor's name. 35 USCA §§ 254-256. Cf. reissue patent under PATENT (3). [Cases: Patents certificate of deposit. (1846) 1. A banker's certificate acknowledging the receipt of money and promising to repay the depositor. Also termed certificate ofindebt­ edness. 2. A bank document showing the existence of a

time deposit, usu. one that interest. - Abbr. CD. [Cases: Banks and Banking 152.] negotiable certificate ofdeposit. A security issued by a financial institution as a short-term source offunds, usu. with a fixed interest rate and maturity ofone year or less. [Cases: Banks and Banking C=c 152.] certificate of discharge. See SATISFACTION PIECE. certificate of dishonor. See NOTICE OF DISHONOR. certificate of dissolution. A document issued by a state authority (usu. the secretary of state) certifying that a corporation has been dissolved. certificate of election. A document issued by a governor, board of elections, or other competent authority cer­ tifying that the named person has been duly elected. [Cases: Elections C=c 126(7), 265.J certificate of good faith. In a case in which a party has been allowed to proceed in a United States District Court in forma pauperis, a document issued by the court attesting that an appeal by the party would not be frivolous, so the party should not be required to pay costs or security.• District judges occaSionally issue certificates of good faith even though they are never required: a party is allowed to appeal in forma pauperis unless the court issues a certificate of bad faith. 28 USCA § 1915(a)(3). Cf. CERTIfICATE OF BAD FAITH. [Cases: Federal Civil Procedure~' 2734.] certificate ofholder of attached property. A certificate given by a person who holds but does not own property attached by a sheriff.• The certificate sets forth the holder's interest in the property. [Cases: Attachment C~) 187.] certificate of incorporation. (18c) 1. A document issued by a state authority (usu. the secretary of state) granting a corporation its legal existence and the right to function as a corporation. Also termed charter; corporate charter. 2. ARTICLES OF INCORPORATION. [Cases: Corporations (:::::> 18.] certificate of indebtedness. 1. See DEBENTURE. 2. See TREASL'RY BILL. 3. See CERTIFICATE OF DEPOSIT (1). certificate of insurance. A document acknowledging that an insurance policy has been written, and setting forth in general terms what the policy covers. [Cases: Insurance certificate of interest. Oil & gas. A document evidenc­ ing a fractional or percentage ownership in oil-and-gas production. certificate of magistracy. See CERTIFICATE OF AL'THOR­ ITY (1).

certificate of marriage. See MARRIAGE CERTIFICATE. certificate of merit. A certificate, Signed by the plain­ tiff's attorney and filed with the complaint in a civil suit, declaring that the plaintiff's attorney has con­ ferred with at least one competent expert and after­ ward concluded that the suit has merit.• Many states have a law mandating certificates of merit in certain types of cases, such as professional malpractice. The

257

certification of labor union

law's purpose is to weed out frivolous claims as early as possible. Jn those states, if a certificate is not filed with the complaint, the action is usu. dismissed. If the law requires the certificate to be signed under oath or penalty of perjury, it is sometimes called an affidavit of merit. [Cases: Attorney and Client c? 129(1); Health ~804; Negligence {.;: 1506.] certificate of occupancy. A document indicating that a building complies with zoning and building ordi­ nances, and ready to be occupied. - A certificate of occupancy is often required before title can be trans­ ferred and the building occupied. [Cases: Health 392; Zonillg and Planning ~371.] certificate of official character. See CERTIFICATE OF AUTHORITY (1).

certificate of probable cause. See

CERTIFICATE OF

APPEALABILITY.

certificate of proof. See PROOF OF ACKNOWLEDGMENT. certificate of protest. See NOTICE OF DISHONOR. certificate of prothonotary. See CERTIFICAn: OF AUTHORITY (1).

certificate ofpublic convenience and necessity. See CER­ TIFICATE OF CONVENIENCE AND NECESSITY.

certificate of purchase. A document reflecting a suc­ cessful bid for property at a judicial sale. - The bidder receives a property deed if the land is not redeemed or if the sale is confirmed by court order. - Also termed certificate ofsale. [Cases; Judicial Sales (,'-='61.] certificate of qualification. See CERTIFICATE OF AUTHORITY (2).

certificate of reasonable doubt. See CERTIFICATE

OF

APPEALABILITY.

certificate ofredemption. A document issued by a sheriff or other statutorily designated officer to a debtor whose property has been foreclosed as evidence that the debtor paid the redemption price for the foreclosed property. See statutory redemption under REDEMPTION. certificate of registration.!. Copyright. A U.S. Copy­ right Office document approving a copyright applica­ tion and stating the approved work's registration date and copyright registration number. [Cases: Copyrights and Intellectual Property C::>SO.25.] 2. Trademarks. A document affirming that the U.S. Patent and Trademark Office has allowed and recorded a trademark or ser­ vicemark. - The certificate identifies (1) the registered mark, (2) the date of first use, (3) the type ofproduct or service the mark applies to, (4) the registration number and date, (5) the registration's term, (6), the original application date, and (7) any conditions or limitations on registration. [Cases; Trademarks ~ 1249.J certificate of registry. Maritime law. A document certi­ fying that a ship has been registered as required by law. See REGISTRY (2). [Cases; Shipping C;)S.] certificate of rehabilitation.!. A document issued in some states by a court or other authorized governmen­ tal agency, such as a parole board, as evidence that a

convicted offender is entitled to recover at least some of the rights and privileges of citizenship. - The terms and conditions under which certificates of rehabilitation are issued vary widely among the states that use them. Some states, such as New York, issue different kinds of rehabilitation certificates based on the number or type 2. A document of convictions. [Cases: Convicts issued by a (usu.local) government on the renovation, restoration, preservation, or rehabilitation of a historic building. - The certificate usu. entitles the property owner to favorable tax treatment. 3. A document attest­ ing that substandard housing has been satisfactorily renovated and meets hOUSing-code standards. certificate of sale. See CERTIFICATE OF PURCHASE. certificate of service. (1819) A section of a pleading or motion filed with the court, usu. contained separately on the last page, in which the filing party certifies to the court that a copy has been mailed to or otherwise served on all other parties. - A certificate of service is usu. not included with the initial pleading that the plaintiff files to begin a suit, because that pleading is usu. filed before it is served (although the plaintiff may be required to file proof of service). Other pleadings and motions are usu. required to have a certificate of service. Fed. R. Civ. P. Sed). - Also termed proof of service. [Cases: Federal Civil Procedure ~66S; Pleading ~ 336; Process ~ 132.] certificate of stock. See STOCK CERTIFICATE. certificate oftide. (1831) A documentindicating owner­ ship of real or personal property. UCC § 9-102(a)(1O). ­ This document usu. identifies anv liens or other encum­ brances. [Cases; Property~9.j certification, n. (ISc) 1. 'Ihe act of attesting. 2. 'The state of having been attested. 3. An attested statement. 4. The writing on the face of a check by which it is certified. 5. A procedure by which a federal appellate court asks the U.S. Supreme Court or the highest state court to review a question oflaw arising in a case pending before the appellate court and on which it needs gUidance. - Certification is commonly used with state courts, but the U.S. Supreme Court has steadily restricted the number of cases it reviews by certification. See 28 USCA § 1254(2). Cf. CERTIORARI. [Cases: Federal Courts C~392, 463.] certification authOrity. An organization that issues digital certificates and maintains a database of cer­ tificates available on the Internet. - Many states have licenSing laws for certification authorities. - Also termed certifying authority. Abbr. CA. certification hearing. See transfer hearing under HEARING.

certification mark. See certification trademark under TRADEMARK.

certification of bargaining agent. See UNION

CERTIFI­

CATION.

certification oflabor union. See TION.

UNION CERTIFICA­

258

certification to state court

certification to state court. The procedure by which a federal court ofappeals defers deciding a novel question of state law by certifying the question to the highest court of the state. See CERTIFICATION (5). [Cases: Federal Courts 64(1).] certiorari petition. See PETITION. cert pool. A group of clerks in the U.S. Supreme Court who read petitions for certiorari and write memoran­ dums fOf the justices with a synopsis of the facts and issues and often a recommendation of whether a grant of certiorari is warranted. "The cert pool is not without its critics. Some commenta· tors have contended that inexperienced clerks in the cert pool give short shrift to cases of practical importance in favor of cases presenting esoteric legal questions .... Other critics have contended that the cert pool does little to advance its stated goal of efficiency.... Pool clerks fre· quently must take the time to formally summarize petitions that would occasion only a brief, candid recommendation to 'deny' from their own Justices." Robert L. Stern et aI., Supreme Court Practice 291 (8th ed. 2002).

certum an et quantum debeatur? (S3r-t"m an et kwon-t"m dee-bee-ay-t"r). [Law Latin] Hist. Certain whether there is a debt due at all, and how much is owed? • These were the two questions that had to be resolved before a defendant could make a plea in com­ pensation. certus plegius (S"f-t 78.1(9).] "Many oil and gas leases contain provisions intended to give lessees more certainty than is given by the temporary cessation of production doctrine. Usually, such provision takes the form of a temporary cessation of production clause, a provision in the lease that states that the lease will be maintained so long as production does not cease for more than an agreed period of time, usually sixty to ninety days ... : So long as sixty days does not elapse without operations on the property, the lease will not terminate even though there is no production." John S. Lowe, Oil and Gas Law in a Nutshell 258 (3d ed. 1995).

cessavit per biennium (se-say-vit par bI-en-ee-Jm). [Latin "he ceased for two years"] Hist. A writ of right available to a landlord to recover land from a tenant who has failed to pay rent or provide prescribed services for a two-year period .• The writ could also be used to recover land donated to a religious order if the order has failed to perform certain spiritual services. - Also termed cessavit. cesse. See CESS. cesser (ses-Jr). 1. Hist. A tenant whose failure to pay rent or perform prescribed services gives the landowner the right to recover possession of the land. - Also spelled cessor; cessure. 2. The termination of a right or interest. "A proviso of cesser is usually annexed to long terms, raised by mortgage, marriage settlement, or annuity, whereby the term is declared to be determinable on the happening of a certain event; and until the event prOVided for in the declaration of cesser has occurred, the term continues." 4 James Kent, Commentaries on American Law'90 (George Comstock ed., 11th ed. 1866). "The cesser of a term, annuity or the like takes place when it determines or comes to an end. The expression was formerly chiefly used with reference to long terms of years created by a settlement for the purpose of securing portions, etc., given to the objects of the settlement. In such cases, it was usual to introduce a proviso that the term should cease when the trusts thereof were satisfied (as, for example, on the death of the annuitant where the term was created to secure an annuity). This was called a proviso for cesser." jowitt's Dictionary of English Law 308 Uohn Burke ed., 2d ed. 1977).

cesset executio (ses-2005.] 2. Family law. CHANGE IN CIRCUMSTANCES.

change-of-ownership clause. Oil & gas. A provision in an oil-and-gas lease specifying what notice must be given to a lessee about a change in the leased land's ownership before the lessee is obliged to recognize the new owner. Also termed assignment clause. [Cases: Mines and Minerals (;::>74(2).] change of venue. (18c) The transfer of a case from one locale to another court in the same judicial system to cure a defect in venue, either to minimize the preju­ dicial impact of local sentiment or to secure a more sensible location for trial. Also termed transfer of venue. See VENUE. [Cases: Venue (~33-84.l change order. 1. A modification ofa previously ordered item or service. See VALUE (2). 2. A directive issued by the federal government to a contractor to alter the specifications of an item the contractor is producing for the government. [Cases: United States (;::>70(25.1).] changing fund. See FUND (1). channel. (14c) 1. The bed of a stream ofwater; the groove through which a stream flows . main channel. The bed over which the principal volume of water flows; the deepest and most navigable part ofa channeL natural channel. The naturally formed bed and banks of a stream. natural flood channel. A channel through which flood­ waters naturally accumulate and flow downstream. 2. The line of deep water that shipping vessels follow . 3. A water route between two islands or an island and a continent . 4. A mode of transmitting something . channel of distribution. See DISTRIBUTION CHANNEL.

264

channel of trade. See DISTRIBUTION CHANNEL. chantry (chan-tree), n. Rist. Eccles. law. 1. A benefice endowed for the saying of Mass by chantry priests for the soul of the founder or his deSignees .• This practice was abolished in England by the Chantry Acts of 1545 and 1547. 2. A chapel or part of a church so endowed. Also spelled chauntry. chapiter (chap-. 3. JURY CHARGE . 4. An aSSigned duty or task; a responsibility 41.J "The "demise" or "bareboat" charter is conceptually the easiest to understand. The charterer takes possession and operates the ship durin9 the period of the charter as though the vessel belonged to the charterer. The bareboat charter is thus analogous to the driver who leases a car for a specified period or a tenant who rents a house for a term of years. The charterer provides the vessel's master and crew (much as the lessee-driver personally drives the car) and pays the operating expenses (much as the lessee­ driver buys the gasoline." David W. Robertson, Steven F.

in the United States 371-72 (2002).

"Slot charters (and vessel·sharing agreements) have become increasingly popular in the container trades, as they enable two or more carriers to combine their capacities and offer more frequent service on their routes. If three carriers all serve the New York to Rotterdam route, for example, and each devotes one vessel to the route every three weeks, they can implicitly (with slot charters) join forces and each offer weekly service." David W. Robertson, Steven F. Friedell & Michael F. Sturley, Admiralty and Maritime Law in the United States 377 (2001).

space charter. A charter for a part ofa vessel '8 capacity, such as a specified hold or deck or a specified part of the vessel's carrying capacity. _ A space charter is a form of vessel-sharing agreement. Cf. slot charter. time charter. A charter for a specified period, rather than for a specific task or voyage; a charter under which the shipowner continues to manage and control the vessel, but the charterer deSignates the ports of call and the cargo carried.• Each party bears the expenses related to its functions and for any damage it causes. Cf. voyage charter. [Cases: Shipping C::::>40.] voyage charter. A charter under which the shipowner provides a ship and crew, and places them at the disposal of the charterer for the carriage of cargo to a designated port. - The voyage charterer may lease the entire vessel for a voyage or series ofvoyages or may (by "space charter") lease only part of the vesseL Cf. time charter. [Cases: Shipping C=41.J "The fundamental difference between voyage and time charters is how the freight or 'charter hire' is calculated. A voyage charter party specifies the amount due for carrying a specified cargo on a specific voyage (or series of voyages), regardless of how long a particular voyage takes. A time charter party specifies the amount due for each day that the vessel is 'on hire,' regardless of how many voyages are completed." David W. Robertson, Steven F. Friedel! & Michael F. Sturley, Admiralty and Maritime Law in the United States 377 (2001).

charter, vb. 1. To establish or grant by charter . 2. To hire or rent for temporary use . charter agreement. See CHARTERPARTY. chartered life underwriter. See UNDERWRITER. chartered ship. See SHIP. charter-land. Hist. See BOOKLAND. charter member. See MEMBER. charter of affreightment. See AFFREIGHTMENT. charterparty. (l6c) A contract by which a ship, or a prin­ cipal part ofit, is leased by the owner, esp. to a merchant for the conveyance ofgoods on a predetermined voyage to one or more places or for a specified period oftime; a

268

chartis reddendis

special contract between the shipowner and charterer, esp. for the carriage of goods by sea. Also written charter-party; charter party. Often shortened to charter. Also termed charter agreement. [Cases: Shipping "Charter partie (charta partita) is nothing but that which we call a paire of indentures, conteining the covenants and agreements made betweene merchants, or sea faring men touching their marine affaires." John Cowell, The Interpreter (1607). 'The instrument by which a vessel is leased is a charter party. The term is derived from charta partita, Le., a deed of writing divided; in earlier times the charta partita, like the indenture agreement, was prepared in two parts, the ship owner retaining one part and the charterer the other.... While a charter party need not be in writing, most charters today are detailed written documents drawn to accommodate the particular needs of shipper and carrier in a certain type of trade or commerce." Frank L Maraist, Admiralty in a Nutshe//44-45 (3d ed. 1996).

chartis reddendis (kahr-tis ri-den-dis). [Latin "for returning charters"] Hist. A writ seeking the return of a charter of feoffment from a person who has been entrusted with the charter but who has refused to deliver it as instructed. See FEOFFMENT. chartophylax (kahr-tof-d-Iaks). Hist. A keeper of records or public instruments; a registrar. chase, n. Hist. A franchise granted by the Crown empow­ ering the grantee to keep, within a certain district, animals for hunting, i.e., the objects of the chase. _ This franchise was also known as a free chase to contrast it with a chase royal- a chase held by the Crown. common chase. A chase in which everyone is entitled to hunt. chattel (chat-dl). (usu. pI.) (14c) Movable or transferable property; personal property; esp., a physical object capable of manual delivery and not the subject matter of real property. "That Money is not to be accounted Goods or Chattels, because it is not of it self valuable .... Chattels are either personal or real. Personal, may be so called in two respects' One, because they belong immediately to the person of a Man, as a Bow, Horse, etc. The other, for that being any way injuriously withheld from us, we have no means to recover them, but Personal Actions. Chattels real, are such as either appertain not immediately to the person, but to some other thing, by way of dependency, as a Box with Charters of Land, Apples upon a Tree, or a Tree it self growing on the Ground .... [O]r else such as are issuing out of some immoveable thing to a person, as a Lease or Rent for the term of years." Thomas Blount, Nomo-Lexicon: A Law-Dictionary (1670).

chattel personal. (16c) A tangible good or an intan­ gible right (such as a patent). - Also termed personal chattel. [Cases: Property C=-4. chattel real. (16c) A real-property interest that is less than a freehold or fee, such as a leasehold estate. _ The most important chattel real is an estate for years in land, which is considered a chattel because it lacks the indefiniteness oftime essential to real property.­ Also termed real chattel. [Cases: Property C=-4.] chattel vegetable. A movable article of a vegetable origin, such as timber, undergrowth, corn, or fruit

local chattel. Personal property that is affixed to land; FIXTURE.

personal chattel. See chattel personal.

real chattel. See chattel real.

unique chattel. A chattel that is absolutely irreplaceable

because it is one of a kind. chattel lien. See mechanic's lien under LIEN. chattel mortgage. See MORTGAGE. chattel-mortgage bond. See BOND (3). chattel paper. (1935) A writing that shows both a monetary obligation and a security interest in or a lease of specific goods. UCC § 9-102(1)(11). - Chattel paper is generally used in a consumer transaction when the consumer buys goods on credit The consumer typically promises to pay for the goods by executing a promis­ sory note, and the seller retains a security interest in the goods. See SECURITY AGREEMENT. [Cases: Secured Transactions C=-88, 142.] "'Chattel paper' means a record or records that evidence both a monetary obligation and a security interest in or a lease of specific goods or of speCific goods and software used in the goods. The term does not include a charter or other contract involving the use or hire of a vessel. If a transaction is evidenced both by a security agreement or lease and by an instrument or series of instruments, the group of records taken together constitutes chattel paper." UCC § 9-102(a)(8).

electronic chattel paper. (1998) Chattel paper evi­ denced by a record or records consisting of informa­ tion stored in an electronic medium and retrievable in perceivable form. UCC § 9-102(a)(31). tangible chattel paper. Chattel paper evidenced by a record or records consisting of information inscribed on a tangible medium. UCC § 9-102(a)(78). chattel personal. See CHATTEL. chattel real. See CHATTEL. chattel vegetable. See CHATTEL. chaud-medley (showd-med-lee). See CHANCE-MEDLEY. chauntry (chon-tree), n. See CHANTRY. cheapgild. Hist. See ORFGILD (1). - Also spelled cheape­ gild. cheap stock. See STOCK. cheat, n. 1. CHEATING. 2. A person who habitually cheats; a swindler. cheat, vb. To defraud; to practice deception. cheater. 1. A person who cheats. 2. ESCHEATOR. cheating. (16c) The fraudulent obtaining of another's property by means of a false symbol or token, or by other illegal practices. - Also termed cheating at common law; common-law cheat; cheat. See FRAUD. cheating by false pretenses. (1827) The intentional obtaining of both the possession and ownership of money, goods, wares, or merchandise by means of misrepresentations, with the intent to defraud. See PALSE PRETENSES. Cf. larceny by trick under LARCENY. [Cases: False Pretenses C=-1; Larceny (;:::.) 14.J

check-kiting

269

check, n. (18c) A draft signed by the maker or drawer, drawn on a bank, payable on demand, and unlimited in negotiability.• Under UCC § 3-104(f), an instrument may be a check even though it is described on its face by another term, such as "money order." - Also spelled cheque. See DRAFT. Banks and Banking(;:::::> 137; Bills and Notes 15, 149.] bad check. (1856) A check that is not honored because the account either contains insufficient funds or does not exist. Also termed hot check; worthless check; rubber check; bounced check; cold check; bogus check; false check; dry check. blank check. (1819) A check signed by the drawer but left blank as to the payee or the amount, or both. bogus check. See bad check. bounced check. See bad check. canceled check. (1839) A check bearing a notation that it has been paid by the bank on which it was drawn.• A canceled check is often used as evidence of payment. Also spelled cancelled check. cashier's check. (1846) A check drawn by a bank on itself, payable to another person, and eVidencing the payee's authorization to receive from the bank the amount of money represented by the check; a draft for which the drawer and drawee are the same bank, or different branches of the same bank. [Cases: Banks and Banking 189.] certified check. (1841) A depositor's check drawn on a bank that guarantees the availability of funds for the check. • The guarantee may be by the drawee's signed agreement to pay the draft or by a notation on the check that it is certified. [Cases: Banks and Banking cold check. See bad check. crossed check. A check that has lines drawn across its face and writing that specifies the bank to which the check must be presented for payment. • The same effect is achieved by stamping the bank's name on the check. The check's negotiability at that bank is unaffected, but no other bank can honor it. Cf. open check. depository-transfer check. (1976) An unsigned, nonne­ gotiable check that is used by a bank to transfer funds from its branch to the collection bank. dry check. See bad check. e-check. A paper check that is supplied by a consumer to a payee (usu. a merchant) who uses the check to make an electronic funds transfer.• The payee elec­ tronically scans the check's magnetic-ink charac­ ter-recognition coding to obtain the bank-routing, account, and serial numbers, then enters the amount of the check. This is usu., but not always, done at a point-of-sale terminal. Also termed electronic check. Cf. e-money under MONEY. electronic check. See e-check. false check. See bad check.

hot check. See bad check. memorandum check. A check that a borrower gives to a lender for the amount of a short-term loan, with the understanding that it is not to be presented for payment but will be redeemed by the borrower when the loan falls due. open check. A check that may be cashed by any bank. Cf. crossed check. personal check. A check drawn on a person's own account. postdated check. A check that bears a date after the date of its issue and is payable on or after the stated date. raised check. (1867) A check whose face amount has been increased, usu. without the knowledge of the issuer an act that under the UCC is considered an alteration. UCC § 3-407. See RAISING AN INSTRU­ MENT.

registered check. A check purchased at a bank and drawn on bank funds that have been set aside to pay that check. rubber check. See bad check. stale check. (1899) A check that has been outstanding for an unreasonable time - more than six months under the Ucc. • Banks in jurisdictions adopting the UCC may choose not to honor such a check. UCC § 4-404. [Cases: Banks and Banking (;:::::> 137; Bills and Notes (;:::::>404.] teller's check. A draft drawn by a bank on another bank or payable at or through a bank. [Cases: Banks and Banking traveler's check. A cashier's check that must be signed by the purchaser at the time ofpurchase and counter­ Signed when cashed; an instrument that (I) is payable on demand, (2) is drawn on or payable at or through a bank, (3) is deSignated by the term "traveler's check" or by a substantially similar term, and (4) requires, as a condition to payment, a countersignature by a person whose specimen signature appears on the instrument. UCC § 3-104(0.• Traveler's checks, which are avail­ able in various denominations, are typically pur­ chased from a bank or financing company. [Cases: Banks and Banking (;:::::> 189.] worthless check. See bad check. check, vb. (14c) 1. To control or restrain . • In this sense, check is typically used with up, on, or out. 4. To leave for safekeeping with an attendant . check-kiting. (1892) The illegal practice of writing a check against a bank account with insufficient funds to cover the check, in the hope that the funds from a preViously deposited check will reach the account before the bank debits the amount of the outstanding check. Also termed kiting; check-flashing. [Cases: Banks and Banking (;:::::> 150.]

3:

check-off system "Check kiting consists of drawing checks on an account in one bank and depositing them in an account in a second bank when neither account has sufficient funds to cover the amounts drawn. Just before the checks are returned for payment to the first bank, the kiter covers them by depositing checks drawn on the account in the second bank." United States v. Stone, 954 F.2d 1187, 1188 n.l (6th Cir. 1992).

check-off system. The procedure by which an employer deducts union dues directly from the employees' wages and remits those dues to the union. checkpoint search. See SEARCH. checks and balances. (18c) 1he theory ofgovernmental power and functions whereby each branch of govern­ ment has the ability to counter the actions ofany other branch, so that no single branch can control the entire government. • For example, the executive branch can check the legislature by exercising its veto power, but the legislature can, by a sufficient majority, override any veto. See SEPARATION OF POWERS. chefe (chef). [Law French fr. French chef"head"] See WERGILD.

chemical warfare. See WARFARE. cheque. See CHECK. cherry-stem annexation. See ANNEXATION. chevage (chee-vij). [fr. French chej"head"] Rist. An annual tribute payment from a villein to a lord.• Chevage was commonly exacted from villeins for per­ mission to marry or permission to work outside a lord's domain. Also spelled chivage; chiefage. "Chevage, (chevagium) commeth of the French 31O(l).] chief rents. Hist. A small, fixed, annual rent payable to the lord by a freeholder ofa manor; annual quit rent. ­ Chief rents 'were abolished in 1922. See QUIT RENT. chiefry (cheef-ree). Hist. A small rent paid to the sov­ ereign by a feudal landholder. - Also spelled chiefrie; chiefery. chief use. A standard for determining a proper tariff clas­ sification in which a commodity's use is understood by examining the intended users as a whole, rather than individually. child. (bef. 12c) 1. A person under the age of majority. 2. Hist. At common law, a person who has not reached the age of 14.3. A boyar girl; a young person. 4. A son or daughter. "The word 'children' is normally used to denote issue of the first generation only." Restatement of Property § 267, cmt. c (1940).

5. A baby or fetus. See JUVENILE; MINOR. PI. children. abortive child. Civil law. A stillborn child or a child born so prematurely that it cannot and does not survive 24 hours. abused child. A child who has been subjected to physical or mental neglect or harm. See child abuse under ABUSE. [Cases: Infants adopted child. A child who has become the son or daughter of a parent or parents by virtue oflegal or equitable adoption; ADOPTEE. See ADOPTION. [Cases: Adoption (::::::> 18] afterborn child. (18c) A child born after execution of a will or after the time in which a class gift closes. ­ Also spelled after-born child. See afterborn heir under HEIR. Cf. posthumous child. [Cases: Wills ~~524.] battered child. A child upon whom physical or sexual abuse has been inflicted, usu. by a relative, caregiver, or close family friend. See child abuse under ABUSE; domestic violence under VIOLENCE; BATTERED-CHILD SYNDROME. [Cases: Criminal Infants 15,156.] biological child. See natural child (1). child in need ofsupervision. A child who has commit­ ted an offense that only children can commit, such as being ungovernable and disobedient to parents, running away from home, violating a curfew, being habitually truant from school, violating age restric­ tions on the purchase or possession of liquor or tobacco, or the like. - Also termed person in need

ofsupervision; minor in need ofsupervision. - Abbr. CHINS. [Cases: Infants (::::::> 151.] child out ofwedlock. See illegitimate child. child with disabilities. Under the Individuals with Dis­ abilities Education Act, a child who needs special­ education or related services because of (1) mental retardation, (2) a hearing, language, or visual impair­ ment, (3) a serious emotional disturbance, or (4) another health impairment or specific learning dis­ abilitv. See INDIVIDUALS WITH DISABILITIES EDUCA­ TION ~CT. [Cases: Schools~) 148(2.1).] delinquent child. (1902) A child who has committed an offense that would be a crime if committed by an adult. • A delinquent child may not be subject to the jurisdiction of the juvenile court if the child is under a statutory age. Cf. child in need ofsupervi­ sion; JUVENILE DELINQUENT. [Cases: Infants ('>;:'153.] [Cases: InfantsC:::> 154.1,157,158; Social Security and Public Welfare (::::::> 194.2.] dependent child. A needy child who has been deprived of parental support or care because of the parent's or other responsible person's death, absence from the home, phYSical or mental incapacity, or (in some cases) unemployment. - This definition was formerly found in Aid to Families with Dependent Children (AFDC), 42 USCA § 606(a). When that program was replaced with Temporary Assistance to Needy Families (TANF), the definition was eliminated although sections of TANF refer to it (see, e.g., 42 USCA § 672(h». C-=' 154.1, 157, 158; Social Security and Public Welfare 194.2.] deprived child. A child who (1) lacks proper parental care or control, subsistence, education, or other care and control for his or her phYSical, mental, or emo­ tional well-being, (2) has been placed for care or adoption in violation of the law, (3) has been aban­ doned, or (4) is without a parent, guardian, or legal custodian. Uniform Juvenile Delinquency Act, 18 USCA §§ 5031 et seq. Cf. neglected child. [Cases: Infants disobedient child. See incorrigible child. foster child. (12c) A child whose care and upbring­ ing are entrusted to an adult other than the child's natural or adoptive parents, usu. by an agency. - A foster child may receive informal, voluntary care by someone (often a grandparent, other relative, or neighbor) who enters into an agreement with the parent or who simply substitutes for the parent as nec­ essary to ensure the child's protection. More formally, the child may be part of the federal-state foster-care program that identifies, trains, and pays caregivers who will provide family care for children who lack parents or cannot safely remain with their biologi­ calor adoptive parents. - Also termed (archaically) fosterling. See foster parent under PARENT. [Cases: Infants e=-~226.] genetic child. See natural child (1).

handicapped child. A child who is mentally retarded, deaf or hearing-impaired, speech-impaired, blind or visually disabled, seriously emotionally disturbed, or orthopedically impaired, or who because of specific learning disabilities requires special education. Schools c)::> 148(2.1).] illegitimate child. (17c) A child who was not conceived or born in lawful wedlock, nor later legitimated.• At common law, such a child was considered the child of nobody (nullius filius) and had no name except one that was gained by reputation. Being no one's child, an illegitimate child could not inherit, even from the mother, but all states now allow maternal inheritance. In cases such as Levy v. Louisiana, 391 U.S. 68, 88 S.Ct. 1509 (1968), and Glona v. American Guar. & Liab. Ins. Co., 391 U.S. 73,88 S.Ct. 1515 (1968), the Supreme Court held that limitations on a child's right to inherit from his or her mother were unconstitu­ tional. As a result, states changed their laws to permit full maternal inheritance. Full paternal inheritance is permitted if the child can prove paternity in accor­ dance with state law (the proof varies from state to state). This burden of proof, uniquely imposed on an illegitimate child, is constitutionally permissible. Lalli v. Lalli, 439 U.S. 259, 99 S.Ct. 518 (1978). ~ Also termed bastard; child out of wedlock; nonmarital child; (archaically) natural child. Cf. BASTARD. [Cases: Children Out-of-Wedlock incorrigible child. (17c) A child who habitually refuses to obey his or her parents or guardians. ~ Also termed disobedient child. intended child. The child who is intended to result from a surrogacy contract. See surrogate parent under PARENT; surrogate mother under MOTHER; intentional parent under PARENT; legalfather under FATHER; SUR­ RoGAcy CONTRACT. [Cases: Infants C':-;) 15; Parent and Child legitimate child. (l7c) 1. At common law, a child con­ ceived or born in lawful wedlock. 2. Modernly, a child conceived or born in lawful wedlock, or legitimated either by the parents' later marriage or by a declara­ tion or judgment of legitimation. [Cases: Children Out-of-Wedlock (;:;;, l.] mantle child. Hist. A child born out of wedlock and later legitimated when the parents are married, tra­ ditionally by standing under a cloak with the parents during the marriage ceremony. [Cases: Children Out­ of-Wedlock (;:;;, 11.] "Our law. . has no need to distinguish between various sorts of illegitimate children. A child is either a legitimate child or a bastard .... In the sharp controversy over this principle ... the champion of what we may call the high­ church party alleged that old English custom was in accord with the law of the church as defined by Alexander III. Probably there was some truth in this assertion. It is not unlikely that old custom, though it would not have held that the marriage in itself had any retroactive effect, allowed the parents on the occasion of their marriage to legitimate the already existing offspring of their union. The children were placed under the cloak which was spread over their parents during the marriage ceremony, and became

'mantle children.' We hear of this practice in Germany and France and Normandy; but we have here rather an act of adoption than a true legitimation. and it would not have fully satisfied the church." 2 Frederick Pollock & Frederic W. Maitland, The History of English Law Before the Time of Edward I 397-98 (2d ed. 1899).

natural child. (16c) 1. A child by birth, as distinguished from an adopted child. Also termed biological child; genetic child. [Cases: Children Out-of-Wedlock (;:;;, 1; Parent and Child 1.] 2. A child that is genetically related to the mother and father as opposed to a child conceived by donor insemination or by egg donation. [Cases: Children Out-of-Wedlock (;:;;, 15; Parent and Child (;:;;'20.]3. Archaic. An illegitimate child, usu. one acknowledged by the father. neglected child. (l7c) 1. A child whose parents or legal custodians are unfit to care for him or her because of cruelty, immorality, or incapacity. [Cases: Infants (;:;;, 156.] 2. A child whose parents or legal custodi­ ans refuse to provide the necessary care and medical services for the child. Cf. deprived child. [Cases: Infants nonmarital child. See illegitimate child. posthumous child. (17c) A child born after a parent's death.• Ordinarily, the phrase posthumous child suggests one born after the father's death. But in at least one case, a legally dead pregnant woman was kept on life-support machines until the child could be safely delivered; so it is possible for a mother's post­ child. [Cases: humous child to be born. Cf. Wills C=:>497(7).] Descent and Distribution prostituted child. See child prostitute under PROSTI­ TUTE.

quasi-posthumous child. Civil law. A child who becomes a direct heir of a grandfather or other male ascendant because of the death of the child '8 father. special-needs child. 1. A child with medical problems or with a physical, mental, or emotional handicap. 2. A child that is likely to be unadoptable because of medical problems or phYSical, mental, or emotional handicaps, or by reason of age or ethnic background. See ADOPTION ASSISTANCE AND CHILD WELFARE ACT.

stepchild. The child of one's spouse by a previous marriage.• A stepchild is generally not entitled to the same legal rights as a natural or adopted child. For example, a stepchild has no right to a share of an intestate stepparent's property. [Cases: Descent and Distribution (;:;;,31; Wills (;:;;,497(7).] unborn child. A child not yet born, esp. at the happen­ ing of some event. child abuse. See ABUSE. child-abuse and -neglect reporting statute. Family law. A state law requiring certain persons, among them healthcare providers, teachers, and child-care workers, to report suspected child abuse .• By 1967, every state had adopted some form of reporting statute. In the Child Abuse Prevention and Treatment Act (42 USCA

child-sexual-abuse accommodation syndrome

273 §§ 5101-5157), Congress provided federal funding for all states that implement federal standards in their reporting statutes and defined child maltreatment broadly. See CHILD ABUSE PREVENTION AND TREAT­ MENT ACT. [Cases: Infants C~ 13.5.J Child Abuse Prevention and Treatment Act. Family law. A federal statute that provides limited funding to states for preventing, identifying, and treating child abuse and neglect.• Enacted in 1974, the Act was amended in 1996 to reinforce an emphasis on child safety. The Act established the National Center on Child Abuse and Neglect in the Department of Health and Human Services. Its function is to study child abuse, conduct research into its causes, and make grants to agencies for the study, prevention, and treatment of child abuse. 42 USCA §§ 5101-5157. Abbr. CAPTA. See CHILD­ ABUSE AND -NEGLECT REPORTING STATUTE.

child-access prevention statute. See

SAFE-STORAGE

STATUTE.

child- and dependent-care tax credit. See TAX CREDIT. child application. See PATENT APPLICATION. child-benefit theory. See STUDENT-BENEFIT THEORY. child-care fund. Family law. State-government funds set aside to reimburse counties for part of the payments for children's foster care and expenses. child-care rules. Family law. State administrative rules for the care of foster children .• In most states, departments concerned with social services establish and enforce the rules governing the welfare of foster children. A few states have created agencies expressly dedicated to services for children. [Cases: Infants C=" 17,226.] child custody. See CUSTODY (2). child destruction. L See FETICIDE. 2. See INFANTICIDE (1).

.c hild endangerment. (1981) The placing of a child in a place or position that exposes him or her to danger to life or health. Also termed endangering the welfare ofa child. [Cases: Infants C='13, 156.] physical child endangerment. Reckless behavior toward a child that has caused or could cause serious physical injury. - Sometimes shortened to physical endangerment. [Cases: Infants 13, 156.J child in need of supervision. See CHILD. child-kidnapping. See KIDNAPPIKG. child labor. The employment ofworkers under the age of majority.• This term typically focuses on abusive prac­ tices such as exploitative factory work; slavery, sale, and trafficking in children; forced or compulsory labor such as debt bondage and serfdom; and the use of children in prostitution, pornography, drug-trafficking, or anything else that might jeopardize their health, safety, or morals. Some writers restrict the term to activities forbidden by the International Labor Organization's minimum-age conventions. See ILO Minimum Age Convention ch. 138 (1973). See FAIR LABOR STANDARDS

Cf. CHILD WORK. [Cases: Infants C='14; Labor and Employment ::>2245.] oppressive child labor. Under the Fair Labor Standards Act, the employment of workers under the age of 16 in any occupation, or the employment of those 16 to 18 years old in particularly hazardous occupations. 29 USCA § 203(1); 29 CFR § 570.1(b). The Secretary of Labor may assess civil penalties of up to $10,000 per violation. 29 USCA § 216(e). Also termed harmful child labor. [Cases: InfantsC= 14; Labor and Employ­ ment child-labor law. (1904) A state or federal statute that protects children by prescribing the necessary working conditions for children in a workplace. See FAIR LABOR STANDARDS ACT. [Cases: Infants C;=> 14.J child maltreatment. See child abuse under ABUSE. child molestation. See MOLESTATION. childnapping. See child-kidnapping under KIDNAP­ ACT.

PING.

child neglect. See KEGLECT. Child Online Protection Act. A 1998 federal statute designed to control child pornography on the Internet by prohibiting Internet speech that is "harmful to minors." • Unlike the Communications Decency Act, COPA does not apply to e-mail or chat-room com­ munications. Among other things, COPA applies to sexually explicit material that appears to depict minors, even if the people are actually over 18 or the images are computer-generated and do not depict living people. After several court challenges, COPA was held uncon­ stitutional and never became effective. Abbr. COPA. [Cases: Telecommunications C;=> 1349.] child out of wedlock. See illegitimate child under CHILD.

child pornography. See PORNOGRAPHY. child prostitute. See PROSTITUTE • child prostitution. See PROSTITUTION. Child Protective Services. A governmental agency responsible for investigating allegations of child abuse and neglect, providing family services to the parent or guardian of a child who has been abused or neglected, and administering the foster-care program. - Abbr. CPS. - Also termed (in some states) Department of Social Services; (esp. in Michigan) family independence agency. [Cases: Infants C;=> 17.J child-rearing. Family law. The practices and customs followed in the upbringing of children, whether in a particular family or in society generally. - Sometimes written childrearing. children's court. See juvenile court under COURT. child's attorney. See attorney ad litem under ATTORNEY. child-sexual-abuse accommodation syndrome. The supposed medical and psychological condition of a child who has suffered repeated instances of sexual abuse, usu. from a relative or family friend .• This 50­ called "syndrome" has been repudiated by the scientific

DEADBEAT PARENTS PUNISHMENT ACT. [Cases: Child Support C=652.] childwit. Hist. A fine levied by a master on a servant who became pregnant without the master's consent. child with disabilities. See CHILD. child work. A minor's salutary employment, esp. within the family. _ This term is sometimes used in contrast to child labor, the idea being that child work within the family unit can be a positive experience. Some scholars and courts note that child work can facilitate vocational skills and social adaptation, and is often viewed as an expression of family solidarity. Cf. CHILD LABOR. chill, vb. To inhibit or discourage 60.32(3).] 2. Tax. A transfer of property that does not result in a significant change of ownership or use of the property, usu. to make the property eligible for amortization or a more favorable method of deprecia­ churn, vb. tion. See ANTICHURNING RULE. CIA. abbr. (1951) CENTRAL INTELLIGENCE AGENCY. CID. abbr. CIVIL INVESTIGATIVE DEMAND. CIF. abbr. COST, INSURANCE, AND FREIGHT. CIF destination. See COST, INSURANCE, AND FREIGHT. CIF pla470.] circuit-riding, n. Hist. The practice of a judge's travel­ ing within a legislatively defined circuit to hear cases in one place for a time, then another, and so on.• The American practice of circuit-riding was based on the English eyre system, in which justices rode between the shire towns to hold assizes. See circuit-ridingjustice under JUSTICE (2). "The Judiciary Act of 1789 required that the justices of the Supreme Court serve also as judges of the circuit courts. Thejustices complained that circuit riding caused serious physical hardships and diverted them from more impor­ tant duties in the nation's capital. ... Congress in 1801 abolished circuit riding on grounds of efficiency, but a year later a new Jeffersonian Republican majority restored the practice, obliging each justice to hold circuit court along with a district judge. Gradually, however, improved commu­ nications, increasing business in the nation's capital, and the strengthening of American nationhood following the Civil War rendered circuit riding anachronistic. Congress in the Judiciary Act of 1869 established a separate circuit court judiciary, although the justices retained nominal circuit riding duties until the Circuit Court of Appeals Act of 1891. Congress officially ended the practice in 1911." The Oxford Companion to the Supreme Court of the United States 145 (Kermit L. Hall ed., 1992).

circuit-riding justice. See JUSTICE (2). circuity of action. (17c) A procedure allowing dupli­ cative lawsuits, leading to unnecessarily lengthy and indirect litigation, as when a defendant fails to bring a counterclaim, but later brings a separate action to recover what could have been awarded in the original lawsuit. _ Civil-procedure rules have eliminated many problems associated with circuity of action. [Cases: Equity C:=>52.] "Circuity of action is, when an action is rightfully brought for a duty, but yet about the bush, as it were, for that it might as well have been otherwise answered and deter­ mined, and the suit saved: and because the same action was more than needful, it is called circuity of action." Termes de la Ley 87 (1 st Am. ed. 1812).

circular letter of credit. See LETTER OF CREDIT. circular note. See LETTER OF CREDIT. circulating capital. See floating capital under CAPITAL. circumduction (sar-kam-d;)k-shan). Annulment; can­ cellation. circumduction of the term. Scots law. A judicial decla­ ration that the time allowed for the parties to present evidence has expired.

277

circum sacra (sar-k. cite, n. See CITATION (3). cite, vb. (I5c) 1. To summon before a court oflaw . 2. To refer to or adduce as precedent or authority . 3. To commend or honor . citeable. See CITABLE. citizen, n. (l4c) I. A person who, by either birth or natu­ ralization, is a member of a political community, owing allegiance to the community and being entitled to enjoy all its civil rights and protections; a member of the civil state, entitled to all its privileges. Cf. RESIDENT; DOMI­ CILIARY. [Cases: Aliens, Immigration, and Citizenship

citizen by naturalization. See naturalized citizen. federal citizen. A citizen of the United States. natural-born citizen. A person born within the juris­ diction of a national government. [Cases: Aliens, Immigration, and Citizenship (;=:689-728.]

naturalized citizen. A foreign-born person who attains citizenship by law. Also termed citizen by natural­ ization. [Cases: Aliens (;=:60-70.] 2. For diversity-jurisdiction purposes, a corporation that was incorporated within a state or has its principal place of business there. 28 USCA § 1332(c)(1). [Cases: Federal Courts (;=:297,300.] citizen-informant. See INFORMANT. citizen's arrest. See ARREST. citizenship, n. 1. The status of being a citizen. 2. The quality of a person's conduct as a member of a com­ munity.

corporate citizenship. See CORPORATE CITIZENSHIP. dual citizenship. See DUAL CITIZENSHIP. Citizenship Clause. (1896) The clause of the U.S. Con­ stitution providing that all persons born or naturalized in the United States are citizens of the United States and the state they reside in. U.S. Const. amend. XIV, § 1, cl. 1. [Cases: Aliens, Immigration, and Citizenship C=652,678.] citizen suit. An action under a statute giving citizens the right to sue violators ofthe law (esp. environmental law) and to seek injunctive relief and penalties.• In the 1970s, during the heyday of antipollution statutes such as the Clean Water Act and the Clean Air Act, legislators believed that regulators sometimes become too close to the industries they oversee and, as a result, lack the aggreSSiveness that individual citizens bring to litigation. The statutes therefore authorize, among other things, "private attorneys general" (citizens) to protect the environment. This includes not only injunc­ tions to stop pollution but also penalties to be paid to the U.S. Treasury. A federal plaintiff must sue under a statutory citizen-suit provision and also satisfy consti­

279

civil-damage law

tutional-standing requirements. See STANDING. [Cases: Environmental Law (;=>20.] citology. See LEGAL CITOLOGY. citra causae cognitionem (sit-rJ kaw-zee kog-nish-ee­ oh-nJm). [Latin] Hist. Without investigating the cause; absent a judicial investigation. "Citra causae cognitionem .... Formerly all interdiction was judicial, and proceeded upon an investigation of the facts and on its necessity or expediency being made out to the satisfaction of the Court. No other kind of interdiction was allowed, but voluntary interdiction, without such inves­ tigation, was afterwards admitted." John Trayner, Trayner's Latin Maxims 78 (4th ed. 1894).

city. 1. A municipal corporation, usu. headed by a mayor and governed by a city council; a municipality of the highest grade. [Cases: Municipal Corporations (;=> 1.1.1 2. The territory within a city's corporate limits. 3. Collec­ tively, the people who live in this territory. Cf. TOWN. city attorney. (1837) An attorney employed by a city Also to advise it and represent it in legal matters. termed municipal attorney; city counsel; corporation counsel; city solicitor. [Cases: Municipal Corporations (;=>2l4(3).] "There may have been a time in this country when the function of the City Attorney of the average city consisted mainly of advising the Council, preparing an occasional ordinance or handling an infrequent lawsuit. The legal business of the average city is no longer so simple, so infrequent and so nonconsuming of the time of the City Attorney. Every action of the City must be justified by its legal powers, and the City Attorney is the municipal officer whose responsibility it is to decide whether any act or action is within the city's legal powers. The demands of citizens for augmented municipal services, and the result­ ing diversification of city operations have increased the volume of work to the point where the City Attorney, in many cities, has become a central consultant of the city officers and employees on a day-to-day, hour-to-hour basis." Allen Grimes, The CitV Attomev: A Practice Manual 6 (1978).

city auditor. See AUDITOR. city clerk. See CLERK (1). city council. A city's legislative body, usu. responsible for passing ordinances, levying taxes, appropriating funds, and generally administering city government. ­ Also termed (in some states) board ofaldermen. [Cases: Municipal Corporations (;=>80.] city counsel. See CITY ATTORNEY. city court. See municipal court under COURT. city manager. A local official appointed to manage and administer the executive affairs of a municipality in accordance with the policies established by the city councilor other governing body. city judge. See municipal judge under JUDGE. city solicitor. See CITY ATTORNEY. city treasurer. See TREASURER. Civ. Ct. See civil court under COURT. civic, adj. (1656) 1. Of or relating to citizenship or a par­ ticular citizen . 2. Of or relating to a city .

civil, ad). (14c) 1. Ofor relating to the state or its citizenry . 2. Of or relating to private rights and remedies that are sought by action or suit, as distinct from criminal proceedings . [Cases: Action C~ IS.] 3. Of or relating to any of the modern legal systems derived from Roman law . civil action. See ACTION (4). civil arrest. See ARREST. civil assault. See ASSAULT. civil-authority clause. Insurance. A clause, esp. in a fire­ insurance policy, insuring against damages caused by firefighters, police, or other civil authority. [Cases: Insurance (;=>2157,2163.] civil bail. See BAIL (1). civil code. (lSc) 1. A comprehensive and systematic leg­ islative pronouncement of the whole private, noncom­ mercia I law in a legal system of the continental civil-law tradition. 2. (caps.) The code that embodies the law of France, from which a great part of the Louisiana civil code is derived. - Abbr. Cc. - Also termed Code Civil. See NAPOLEONIC CODE. 3. A codification ofnon­ criminal statutes. civil cognation. See COGNATION. civil commitment. (1945) 1. A commitment of a person who is ill, incompetent, drug-addicted, or the like, as contrasted with a criminal sentence .• In contrast to a criminal commitment, the length of a civil commit­ ment is indefinite because it depends on the person's recovery. [Cases: Chemical Dependents (;=>10; Mental Health (;;.;31.) 2. A public demonstration by two people of their intent to be bound together in a marriage-like relationship.• The demonstration is usu. in the form of a ceremony, often identical to a wedding, but the rela­ tionship is usu. not legally recognized and can be dis­ solved without legal formalities. See CIVIL UNION. 3. A residential program characterized by intense and strict supervision of sex offenders who have completed their prison sentences but are found to be likely to commit more sex crimes. [Cases: Mental Health (;=>465.] civil-commitment statute. A law that provides for the confinement of a person who is mentally ill, incom­ petent, drug-addicted, or the like .• Unlike criminal incarceration, civil commitment is for an indefinite period. [Cases: Chemical Dependents (;=>12; Mental Health (;=>37.] civil commotion. (16c) A public uprising by a large number of people who, acting together, cause harm to people or property.• A civil commotion usu. involves many more people than a riot. - Sometimes shortened to commotion. Cf. RIOT. [Cases: Riot civil conspiracy. See CONSPIRACY. civil contempt. See CONTEMPT. civil corporation. See CORPORATION. civil court. See COURT. civil-damage law. See DRAM-SHOP ACT.

civil day

civil day. See artificial day under DAY. civil death. See DEATH. civil defense. 1. The practice of protecting civilians from dangers caused by hostilities or disasters and helping them recover from the immediate effects of such events. 2. The policies that underlie this practice. civil disability. See DISABILITY (3). civil disobedience. (1866) A deliberate but nonviolent act oflawbreaking to call attention to a particular law or set oflaws believed by the actor to be ofquestionable legitimacy or morality. "Social protest and even civil disobedience serve the law's need for growth. Ideally, reform would come according to reason and justice without self-help and disturbing, almost violent, forms of protest .... Still, candor compels one here again to acknowledge the gap between the ideal and the reality. Short of the millennium, sharp changes in the law depend partly upon the stimulus of protest." Archibald Cox, Civil Rights, the Constitution, and the Courts, 40 N.Y. State B.J. 161, 169 (1968).

civil disorder. (l8c) A public disturbance involving three or more people who commit violent acts that cause immediate danger or injury to people or property. See RIOT. [Cases: Riot (;::::> 1.] civil embargo. See EMBARGO (2). civil forfeiture. See FORFEITURE. civil fraud. See FRAUD. civil fruit. See FRUIT. civilian, n. 1. A person not serving in the military. 2. A lawyer practicing in a civil-law jurisdiction. Also termed civilista. 3. A scholar in civil or Roman law. civilian, adj. civil impediment. See IMPEDIMENT. civil imprisonment. Rist. See IMPRISONMENT FOR DEBT.

civil infraction. See INFRACTION. civil injury. See INJURY. civil investigative demand. 1. A request for information served by the U.S. Attorney General on any person who may have documents or information relevant to a civil antitrust investigation or to an investigation authorized by section 3 of the International Antitrust Enforcement Assistance Act (15 USCA § 6202).• A civil investiga­ tive demand can be issued before a civil or criminal action is begun, and can be served on anyone - not just potential defendants thought to possess information pertinent to the investigation. If the Attorney General begins a civil or criminal action, this demand may not be served on persons within the scope of the proceed­ ing. [Cases: Antitrust and Trade Regulation G::::>954.] 2. A similar request for information served by a differ­ ent governmental entity, esp. a state attorney general. [Cases: Attorney General (>~J6.1- Abbr. cm. civilis (S;;l-VI-lis), adj. [Latin] Of or according to civil law. civilista (siv-a-lis-ta). [Latin] Rist. See CIVILIAN (2).

280

civiliter (sa-vil-a-tar), adv. [Latin "civilly"]!. Bya civil, as distinguished from a criminal, proceeding. Cf. CRIMI­ 2. Civilly; as a citizen. civiliter mortuus (sa-vil-a-tar mor-choo-as). [LatinJ Civilly dead . See civil death (1) under DEATH. civilization. (l8c) The transformation of a criminal matter to a civil one by law or judgment. Cf. CRIMI­ NALITER.

NALIZATION (1).

civil justice. (I6c) The methods by which a society redresses civil wrongs. Cf. CRIMINAL JUSTICE (1). civil law. (14c) I. (usu. cap.) One of the two prominent legal systems in the Western world, originally admin­ istered in the Roman Empire and still influential in continental Europe, Latin America, Scotland, and Louisiana, among other parts of the world; ROMAN LAW. • In reference to Romans, civil law (commonly referred to as jus civile) denotes the whole body of Roman law, from whatever source derived. But it is also used to denote that part of Roman law peculiar to the Romans, as opposed to the common law of all peoples (jus gentium). Also termed jus civile; Romanesque law. Cf. COMMON LAW (2). 2. The body oflaw imposed by the state, as opposed to moral law. 3. The law of civil or private rights, as opposed to criminal law or admin­ istrative law. - Abbr. CL. "The difference between civil law ... and criminal law turns on the difference between two different objects which the law seeks to pursue ~ redress or punishment. The object of civil law is the redress of wrongs by compelling com· pensation or restitution: the wrongdoer is not punished, he only suffers so much harm as is necessary to make good the wrong he has done. The person who has suffered gets a definite benefit from the law. or at least he avoids a loss. On the other hand, in the case of crimes, the main object of the law is to punish the wrongdoer; to give him and others a strong inducement not to commit the same or similar crimes, to reform him if pOSSible, and perhaps to satisfy the public sense that wrongdoing ought to meet with retribution." William Geldart, Introduction to English Law 146 (O.CM. Yardley ed., 9th ed. 1984).

civil liability. See LIABILITY. civil-liability act. See DRAM-SHOP ACT. civil liberty. (usu. pl.) (17c) Freedom from undue govern­ mental interference or restraint. • This term usu. refers to freedom of speech, freedom of the press, freedom of religion, freedom of association, and other liberties associated with the Bill of Rights. In American law, early civil liberties were promulgated in the Lawes and Libertyes ofMassachusetts (1648) and the Bill of Rights (1791). In English law, examples are found in Magna Carta (1215), the Petition of Right (1628), and the Bill of Rights (1689). Also termed civil right. [Cases: Civil Rights G:::::: 1027.] civil list. An annual sum granted by Parliament for the expenses of the royal household. civil marriage. See MARRIAGE (3). civil month. See MONTH (1). civil obligation. 1. See conventional obligation under OBLIGATION (3). 2. See OBLIGATION (2).

claim

281

civil offense. See public tort under TORT. civil partnership. See CIVIL UNION. civil penalty. See PENALTY (1). civil possession. See POSSESSION. civil power. See POLITICAL POWER. civil procedure. (18c) 1. 'The body oflaw usu. rules enacted by the legislature or courts - governing the methods and practices used in civil litigation .• An example is the Federal Rules of Civil Procedure. 2. A particular method or practice used in carrying on civil litigation in a particular jurisdiction. civil process. See PROCESS. civil remedy. See REMEDY (1). civil right. (usu. pI.) (l7c) 1. The individual rights of personal liberty guaranteed by the Bill of Rights and by the 13th. 14th, 15th. and 19th Amendments, as well as by legislation such as the Voting Rights Act. • Civil rights include esp. the right to vote, the right of due process. and the right ofequal protection under the law. [Cases: Civil Rights (:::::>1027.]2. CIVIL LIBERTY. "At common law a person conVicted of a felony became an outlaw. He lost all of his civil rights and all of his property became forfeited. This harsh rule no longer prevails. Under modern jurisprudence the civil rights of a person convicted of a crime, be it a felony or misdemeanor, are in nowise affected or diminished except insofar as express statutory provisions so prescribe." Alexander Holtzoff, "Civil Rights of Criminals," in Encyclopedia of Criminology 55 (Vernon C. Branham & Samuel B. Kutash eds., 1949).

civil-rights act. (1867) One of several federal statutes enacted after the Civil War (1861-1865) and, much later, during and after the civil-rights movement ofthe 1950s and 1960s, for the purpose of implementing and giving further force to the basic rights guaranteed by the Constitution, and esp. prohibiting discrimination in employment and education on the basis of race, sex, religion, color, or age. [Cases: Civil Rights 1002, 1102.1 civil-rights removal. See REMOVAL. civil service, n. 1. The administrative branches ofa gov­ ernment. [Cases: Officers and Public Employees (:::::> 1l.] 2. The group of people employed by these branches. civil servant, n. Civil Service Commission. A former independent federal agency that supervised the government's per­ sonnel system .• 'The agency was created in 1883 and abolished by Reorganization Plan No.2 of 1978. Its functions were transferred to the Merit Systems Pro­ tection Board and the Office of Personnel Management. See MERIT SYSTEMS PROTECTION BOARD; OFFICE OF PERSONNEL MANAGEMENT. [Cases: Officers and Public Employees C;:;:, 72.20.) civil-service reform. 'The use ofbusiness principles and methods instead of the spoils system in the conduct of the civil service, esp. in awarding contracts and appointing officials. civil society. See SOCIETY.

civil term. See TERM (5). civil union. Family law. A marriage-like relationship, often between members ofthe same sex, recognized by civil authorities within a jurisdiction .• Vermont was the first state to recognize civil unions. In December 1999, the Vermont Supreme Court ruled that denying gay couples the benefits of marriage amounted to unconstitutional discrimination. Baker v. State, 744 A.2d 864 (Vt. 1999). Several months later the legislature passed a civil-unions law, which took effect on July 1, 2000. - Also termed civil partnership. Cf. DOMESTIC PARTNERSHIP; same-sex marriage under MARRIAGE (1). [Cases: Marriage (:::::> 17.5,54.] civil war. See WAR. civil wrong. (17c) 1. See WRONG. 2. See TORT. 3. See DELICT.

civis (siv-is). [Latin) Roman law. A Roman citizen; a person entitled to the public and private rights associ­ ated with Roman citizenship.• Female citizens had only private rights. - Also termed civis Romanus; civis Romana. civitas (siv-a-tas), n. [Latin) Roman law. 1. A state. 2. An organized community; a territorial unit. civitatis amissio (siv-i-tay-tis a-mish-ee-oh). [Latin] Hist. Loss of citizenship. C.}. abbr. 1. See chiefjustice under JUSTICE (2). 2. See chiefjudge under JUDGE. 3. See circuit judge under JUDGE.

4.

CORPUS JURIS.

CJC. abbr. CODE OF JUDICIAL CONDUCT. CJE. abbr. CONTINUING JUDICIAL EDUCATION. C.J.S. abbr. Corpus Juris Secundum. - Also written

CIS. CL. abbr. CIVIL LAW. Claflin trust. See indestructible trust under TRUST. Claflin-trust principle. The doctrine that a trust cannot be terminated by the beneficiaries if the termination would defeat one of the settlor's material purposes in establishing the trust. even if all the beneficiaries seek its termination. _ The Claflin principle, which derives from Claflin v. Claflin, 20 N.E. 454 (Mass. 1889), is often cited as the purest illustration of«deadhand control," in which the wishes of the now dead settlor prevail over the wishes and needs ofliving beneficiaries. If the settlor is alive and consents to the modification or ter­ mination ofthe trust, the trust may usu. be terminated, unless it is irrevocable. Trusts in the Claflin category are spendthrift trusts, support trusts, trusts in which the trustee has discretion to make distributions, and trusts in which the beneficiary is entitled to income until a certain age, at which point the beneficiary will receive the principal. claim, n. (13c) 1. The aggregate of operative facts giving rise to a right enforceable by a court , 3. A demand for money, property, or a legal remedy to which one asserts a right; esp" the part of a complaint in a civil action specifying what relief the plaintiff asks for, [Cases: Federal Civil Procedure (;:::J680; Pleading (;:::J,72.]

donation claim. Property law. A claim for ownership ofland under a donation act or bounty-land warrant. See DONATION ACT; BOUNTy-tAND WARRANT. honest claim. A claim made by someone who believes, however unreasonably, that he or she has a right to something or that there is a chance that such a right exists. liquidated claim. 1. A claim for an amount previously agreed on by the parties or that can be precisely determined by operation oflaw or by the terms of the parties' agreement. 2. A claim that has been deter­ mined in a judicial proceeding. - Also termed liqui­ dated demand, [Cases: Accord and Satisfaction C:::.) 10; Interest (;:::.39(2.15).] matured claim. A claim based on a debt that is due for payment. stale claim. (I8c) A claim that is barred by the statute oflimitations or the defense oflaches. Also termed stale demand. [Cases: Equity (;:::J67; Limitation of Actions (;:::J 1, 165.] unliquidated claim. A claim in which the amount owed has not been determined. [Cases: Accord and Satisfaction C:;:, 10; Interest (;:::J39(2.15).] 4. An interest or remedy recognized at law; the means by which a person can obtain a privilege, possession, or enjoyment of a right or thing; CAUSE OF ACTION (1) . ancillary claim. (1906) A claim that is collateral to, dependent on, or auxiliary to another claim, such as a state-law claim that is sufficiently related to a federal claim to permit federal jurisdiction over it.• The concept of ancillary federal jurisdiction is now contained in the supplemental-jurisdiction statute, 28 USCA § 1367. See ancillary jurisdiction and sup­ plemental jurisdiction under TURISDICTION. [Cases: Federal Courts 20.] colorable claim. 1. A claim that is legitimate and that may reasonably be asserted, given the facts presented and the current law (or a reasonable and logical exten­ sion or modification of the current law). 2. A claim in which the debtor and property holder are, as a matter oflaw, not adverse .• An example of a colorable claim is one made by a person holding property as an agent or bailee of the bankrupt. contingent claim. A claim that has not yet accrued and is dependent on some future event that may never happen. counterclaim. See COUNTERCLAIM. cross-claim. See CROSS-CLAIM.

frivolous claim. A claim that has no legal basis or merit, esp. one brought for an unreasonable purpose such as harassment. Fed. R. Civ. P. l1(b). supplemental claim. A claim for further reliefbased on events occurring after the original claim was made. S. Bankruptcy. (1842) A right to payment or to an equi­ table remedy for breach of performance if the breach gives rise to a right to payment.• It does not matter whether the right has been reduced to judgment or whether it is liquidated or unliquidated, fixed or con­ tingent, matured or unmatured, disputed or undis­ puted, or secured or unsecured. creditor's claim. A claim that a creditor has against a debtor. [Cases: Bankruptcy (;:::J,2825.] involuntary gap claim. A claim that accrues in the ordinary course of business after an involuntary bankruptcy petition has been filed but before the order for relief or the appointment of a trustee .• The Bankruptcy Code gives priority to creditors with claims of this type to encourage creditors to continue dealing with a debtor until the debtor has a chance to challenge the involuntary petition. [Cases: Bank­ ruptcy (;:::J2833.] priority claim. An unsecured claim that, under bank­ ruptcy law, must be paid before other unsecured claims.• The Bankruptcy Code sets forth nine classes of claims, to be paid in order of priority: (1) administrative expenses of the bankruptcy estate, (2) involuntary gap claims, (3) wage claims, (4) contribu­ tions to employee benefit plans, (5) claims of grain farmers and fishermen, (6) consumer deposits, (7) alimony, maintenance, and child-support claims, (8) tax claims, and (9) capital requirements of an insured depository institution. [Cases: Bankruptcy (;:::J2951-2972.] secured claim. A claim held by a creditor who has a lien or a right of setoff against the debtor's property. 1] [Cases: Secured Transactions unsecured claim. 1. A claim by a creditor who does not have a lien or a right of setoff against the debtor's property. 2. A claim by a creditor to the extent that its lien on or right of setoff against the debtor's property is worth less than the amount ofthe debt. 6. Patents. PATENT CtAIM. claim and delivery. (1842) A claim for the recovery of specific personal property wrongfully taken or detained, as well as for any damages caused by the taking or detention.• This claim derives from the common-law action of replevin. - Sometimes written claim-and-delivery. See REPtEVIN. [Cases: Replevin 1.] claimant, n. (ISc) One who asserts a right or demand, esp, formally; esp., one who asserts a property interest in land, chattels, or tangible things, occupying claimant. See OCCUPYING CLAIMANT.

claim check. A receipt obtained for bailed or checked property and surrendered by the holder when the bailee returns the property. claim differentiation. Patents. A canon ofconstruction presuming that each claim in a patent is different in scope and meaning from all other claims; the presump­ tion that different terms in separate claims must have different meanings ifone ofthe claims would otherwise be rendered superfluous. - The presumption cannot be used by the patentee to broaden claims, and a court will ignore it when convinced that its own interpreta­ tion of the claims is correct. The presumption is stron­ gest when a different interpretation would be the only way to make a dependent claim more limiting than the independent claim it refers to. - Also termed doctrine ofclaim differentiation. [Cases: Patents (;::) 165(5).] claim dilution. Bankruptcy. The reduction in the like­ lihood that a debtor's claimants will be fully repaid, including considerations of the time value of money. claim for relief. (1808) See CLAIM (1). claim in equity. Rist. A summary proceeding created to eliminate protracted pleading procedure in simple cases. - The claim in equity was established in England in 1850 and abolished in 1860. claim-jumping. 1. The extension of the borders of a mining claim to infringe on other areas or claims. 2. The filing of [Cases: Mines and Minerals a duplicate claim to take advantage of a flaw in the original claim. claim limitation. Patents. In a patent application, a state­ ment that describes the means for performing a speci­ fied function without reciting the structure, materials, or acts that support that function. - Claim limitations define the invention by distinguishing it from prior art. [Cases: Patents (;::::clOl(3).] claim of appeal. See NOTICE OF APPEAL. claim of cognizance. Rist. An intervention seeking the return of a case to the claimant's own court. - Cogni­ zance may be claimed by a person, city, or public corpo­ ration granted the right to hold court. - Also termed claim ofconusance. See COGNIZANCE; CONUSANCE. claim of conusance. See CLAIM OF COGNIZANCE. claim of liberty. Hist. A petition to the Crown, filed in the Court of Exchequer, seeking the Attorney General's confirmation ofliberties and franchises. claim of ownership. (1818) 1. The possession of a piece of property with the intention of claiming it in hostil­ ity to the true owner. [Cases: Adverse Possession 68.] 2. A party's manifest intention to take over land, regardless of title or right. Also termed claim ofright; claim of title. claim of priority. See BENEFIT OF AN EARLIER FILING DATE. claim of right. 1. Rist. A criminal defendant's plea that the defendant committed the act in question under the mistaken but honest belief that it was legaL - Defendants accused of theft often raised this plea,

asserting an honest belief in a superior right to the property taken. The claim of right could also be raised as a defense against bigamy if the defendant honestly believed that an earlier marriage had been legally dis­ solved. The usual phrase today is honesty defense. Cf. honesty defense under DEFENSE (1). 2. Hist. An owner's action to recover unjustly taken land in fee simple by employing a writ of course. See WRIT OF COURSE. 3. CLAIM OF OWNERSHIP. claim-of-right doctrine. Tax. The rule that any income constructively received must be reported as income, whether or not the taxpayer has an unrestricted claim to it. [Cases: Internal Revenue (;::::c 3086, 3118.] claim of title. See CLAIM OF OWNERSHIP. claim preclusion. See RES JUDICATA. "[T)he prinCipal distinction between claim preclusion and issue preclusion is ... that the former forecloses litigation of matters that have never been litigated. This makes it important to know the dimensions of the 'claim' that is foreclosed by bringing the first action, but unfortunately no precise definition is possible." Charles Alan Wright, The Law of Federal Courts § 100A, at 723 (5th ed. 1994).

claim-property bond. See repleVin bond under BOND (2). claims adjuster. See ADTt:STER. claims-consciousness, n. The quality characterizing a legal culture in which people have firm expectations of justice and are willing to take concrete steps to see that justice is done . - Also termed rights­ consciousness. claims-conscious, adj. claims court. See court ofclaims under COURT. Claims Court, U.S. See UNITED STATES COURT OF FEDERAL CLAIMS. claims-made policy. See INSURANCE POLICY. claim the floor. Parliamentary law. To address the chair for the purpose of being recognized as entitled to speak. See FLOOR (1). clam (klam), adv. [Latin] Roman & civil law. Secretly; covertly. _ Under Roman law, an act (such as occupying or altering the condition of someone else's property) was committed clam when it was done with the intent to conceal it in an effort to avoid liability. See INTER­ DICTUM QUOD VI AUT CLAM. clamea admittenda in itinere per attornatum (klay­ mee-67; Federal Civil Procedure C=> 161.1.J class action. (1909) A lawsuit in which the court autho­ rizes a Single person or a small group of people to represent the interests of a larger group; specif., a lawsuit in which the convenience either of the public or of the interested parties requires that the case be settled through litigation by or against only a part of the group of similarly situated persons and in which a person whose interests are or may be affected does not have an opportunity to protect his or her interests by appearing personally or through a personally selected representative, or through a person specially appointed to act as a trustee or guardian.• Federal procedure has several prerequisites for maintaining a class action: (1) the class must be so large that individual suits would be impracticable, (2) there must be legal or factual ques­ tions common to the class, (3) the claims or defenses of the representative parties must be typical of those of the class, and (4) the representative parties must ade­ quately protect the interests of the class. Fed. R. Civ. P. 23. Also termed class suit; representative action. [Cases: Federal Civil Procedure (;:::> 161-189; Parties C=> 35.1-35.89.] "The class action was an invention of equity ... mothered by the practical necessity of providing a procedural device so that mere numbers would not disable large groups of individuals, United in interest, from enforcing their equi­ table rights nor grant them immunity from their equitable wrongs. .. By rule 23 the Supreme Court has extended the use of the class action device to the entire field of federal civil litigation by making it applicable to all civil actions." Montgomery Ward & Co. v. Langer; 168 F.2d 182, 187 (8th Or. 1948).

hybrid class action. (1937) Hist. A type of action in which the rights to be enforced were several and varied, but the object was to adjudicate claims that affected or might have affected the specific property in the action. [Cases: Federal Civil Procedure 35.19.] spurious class action. Hist. A former category of class action in which the interests of class members are several, not interdependent, and joinder is allowed to avoid multiplicity of suits. [Cases: Federal Civil Pro­ cedure C=> 166; Parties 35.19.]

class-based animus. See ANIMUS (1). class director. See DIRECTOR. class gift. See GIFT. classification. See CHARACTERIZATION (1). classification of patents. Patents. 1. The sorting ofinven­ tions by type into broad classes and narrow subclasses, as an aid in patent searches. 2. Anyone of the several classes into which the inventions are sorted. Also termed (in both senses) office classification; (in sense 2) field ofinvention; (in sense 2) field ofsearch. [Cases: Patents (::::>97.1 classified board of directors. See staggered board of directors under BOARD OF DIRECTORS. classified information. Data or material that, having been designated as secret or confidential, only a limited number of authorized persons may know about. classified risk. See RISK.

classified tax. See TAX.

class legislation. See local and speciallegislatiorl under

LEGISLATION.

class lottery. See Dutch lottery under LOTTERY. class of stock. A category of corporate shares used when more than one type of stock is issued. See preferred stock and common stock under STOCK. [Cases: Corpo­ rations (;:::062.] class-one insured. See INSURED. class rate. See RATE. class representative. See REPRESENTATIVE. class suit. See CLASS ACTION. class-two insured. See INSURED. class voting. See VOTING. clausa rebus sic stantibus (klawz-,) ree-b221(3).] pay-when-paid clause. In a construction contract, a provision requiring a general contractor to pay a subcontractor within a specified period of time after the property owner pays the general contrac­ tor.• A minority of courts have held that the sub­ contractor bears the risk ofnonpayment if the owner becomes insolvent. But because the general contractor normally bears the risk of nonpayment, most courts hold that a subcontractor is entitled to payment for work done despite the owner's insolvency. Cf. pay-if­ paid clause. [Cases: Contracts (::::>221(3).]

resolving clause. The clause that introduces a resolu­ tion's operative text, usu. beginning with "Resolved, That ...." • A resolving clause is comparable to a stat­ ute's enacting clause.- Also termed operative clause. See enacting clause; RESOLUTION (1). Cf. PREAMBLE (1).

strong-arm clause. A provision of the Bankruptcy Code allowing a bankruptcy trustee to avoid a security interest that is not perfected when the bankruptcy case is filed. 11 USCA § 544(a)(1). [Cases: Bankruptcy (;:::::>2571-2588,2704,2705.) title-object clause. A provision in a state constitution rendering a statute unconstitutional if the contents of the statute are not reasonably reflected in the title or the statute has more than one object. • The purpose of the clause is to ensure that the public and legisla­ ture have notice of the content oflegislation. [Cases: 105, 107.) Statutes whereas clause. 1. See RECITAL (2). 2. See PREAMBLE (1).

claused bill oflading. See BILL OF LADING. clause ofaccrual. A provision, usu. found in a gift by will or in a deed between tenants in common, that grants a predeceasing beneficiary's shares to the surviving ben­ eficiary. Also termed clause ofaccruer. clause paramount. Maritime law. A provision in a charterparty that specifies what jurisdiction's law will govern the agreement, typically incorporating the Carriage of Goods by Sea Act into the charter. See CHARTERPARTY; CARRIAGE OF GOODS BY SF.A ACT. [Cases: Shipping C=)39(1).] clause potestative (poh-tes-tay-tiv). French law. A con­ tractual provision in which one party reserves the right to annul the contract. clause rolls. Hist. Sealed rolls containing royal writs (close writs) and other documents that the sovereign deemed inappropriate for the public record. - Also termed close rolls. See close writ under WRIT. clausula (klawz-YJ-b), n. [Latin) A clause; a sentence or part of a sentence in a written instrument or statute. clausula codicillaris (klawz-YJ-b kod-J-si-Iair-is). [Latin] Roman law. A codicillary clause; a codicil that, having been confirmed by a will (even in advance), operated as part of the wilL. An unconfirmed codicil created directives that could be effective even in the absence or failure of a will. See FIDEICOMMISSUM. clausula derogativa (klawz-YJ-IJ dJ-rog-J-tI-VJ). [Latin] See DEROGATORY CLAUSE. clausula derogatoria (klawz-YJ-IJ dJ-rog-J-tor-ee-J). See DEROGATORY CLAUSE. clausula rebus sic stantibus (klawz-YJ-IJ ree-bJs sik stan-tJ-bJs). See CLAUSA REBUS SIC STANTIBUS. clausula tenoris (klawz-YJ-b te-nor-is). [Law Latin) Hist. The clause of tenure - that is, the clause in a charter describing the nature of a tenure.

clausum (klawz-Jm). [Latin "close; closed") Hist. 1. CLOSE (1). - Also termed clausum. 2. See close writ under WRIT. clausum fregit (klawz-Jm free-jit). [Latin "he broke the close"] See trespass quare clausum fregit under TRESPASS.

clausura (klaw-zhuur-a). See CLAUSUM (1). clawback, n. (1953) 1. Money taken back. 2. The retrieval or recovery of tax allowailces by additional forms of taxation. - claw back, vb. claw-back option. The right to require repayment of funds earmarked for a specific purpose if the funds are disbursed for another purpose or in a manner inconsistent with the document governing the speci­ fied purpose. Clayton Act. A federal statute enacted in 1914 to amend the Sherman Act - that prohibits price dis­ crimination, tying arrangements, and exclUSive-dealing contracts, as well as mergers and interlocking director­ ates, if their effect might substantially lessen competi­ tion or create a monopoly in any line of commerce. IS USCA §§ 12-27. [Cases: Antitrust and Trade Regula­ tion (;:::::>524, 614.) Cl. Ct. abbr. Court of Claims. See UNITED STATES COURT OF FEDERAL CLAIMS.

CLE. abbr. CONTINUING LEGAL EDUCATION. clean hill. See BILL (3). clean bill of lading. See BILL OF LADING. clean draft. See DRAFT. clean-hands doctrine. (1914) The principle that a party cannot seek equitable relief or assert an equitable defense if that party has violated an equitable prin­ ciple, such as good faith .• Such a party is described as having "unclean hands." For example, section 8 of the Uniform Child Custody Jurisdiction Act contains an unclean-hands provision that forbids a court from exercisingjurisdktion in a child-custody suit in certain situations, as when one party has wrongfully removed a child from another state, has improperly retained custody of a child after visitation, or has wrongfully removed a child from the person with custody. The clean-hands doctrine evolved from the discretionary nature of eqUitable relief in English courts of equity, such as Chancery. - Also termed unclean-hands doctrine. [Cases: Equity (;:::::>65.] dean house, vb. Slang. 1. To discharge a considerable number ofemployees, usu. in management, so that new employees may be brought in. 2. To sell securities not meeting an investor's requirements. clean letter of credit. See LETTER OF CREDIT. clean-slate rule. Criminal procedure. The doctrine that the double-jeopardy prohibition does not apply to the retrial of a defendant who appealed and obtained a reversal of an earlier conviction. [Cases: Double Jeopardy (;:::::> 107.1.]

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cleanup clause. In a loan agreement, a clause that calls for the loan to be repaid in full within a given period, after which no further loans will be afforded to the debtor for a specified "cleanup" period. cleanup doctrine. The jurisdictional principle that once an equity court has acquired jurisdiction over a case, it may decide both equitable and legal issues as long as the legal issues are ancillary to the equitable ones. [Cases: EquityC'J39.j clear, adj. 1. Free from encumbrances or claims. 2. Free from doubt; sure. 3. Unambiguous. clear, vb. (IS.c) 1. To acquit or exonerate <she was cleared of all wrongdoing>. 2. (Of a drawee bank) to pay (a check or draft) out of funds held on behalf of the maker 21.J - clement (klem-cmt), adj. Clementines (klem-an-tinz or -trnz or -teenz). Eccles. law. A collection of decretals of Pope Clement V, pub­ lished in 1317 by his successor, Pope John XXII, and forming the fourth of the six parts of the Corpus Juris Canonici, completed in 1502. Also termed Clemen­ tine Constitutions. clergy, benefit of. See BENEFIT OF CLERGY. clergyable, adj. Archaic. 1. (Of an offense) not triable if benefit of clergy is claimed. 2. (Of a person) eligible to claim benefit of clergy. clergyman-penitent privilege. See priest-penitent privi­ lege under PRIVILEGE (3). clergy privilege. See BENEFIT OF CLERGY (1). clericale privilegium (kler-3-kay-Iee priv-3-1ee­ jee-am). [Law Latin "clerical privilege"J See BENEFIT OF CLERGY. clerical error. See ERROR (2). clerical misprision. See MISPRISION. clerid de cancellaria (kler-3-s1 dee kan-sa-Iair-ee-a). [Law Latin "clerks ofthe chancery"] Cursitors. Also termed clerici de cursu. See CURSITOR. clerici praenotarii (kler-d-sI pree-nd-tair-ee-I). [Law Latin "prenotary clerks"] See SIX CLERKS. derico capto per statu tum mercatorium. See DE CLERICO CAPTO PER STATUTUM MERCATORIUM DELIBERANDO.

clerico convicto commisso gaolae in defectu ordinarii deliberando (kler-3-koh kan-vik-toh kd-mis-oh jay­ [d]-lee in di-fek-t[y]oo di-lib-d-ran-doh). [Law Latin "for delivering a cleric convicted and committed to gaol in defect of his ordinary"] Hist. A writ ordering the delivery of a clerk to the ordinary (Le., a superior) after the clerk was convicted of a felonv, and without the ordinary's questioning the clerk's right to claim benefit of clergy. - Also termed de clerico convicto commisso gaolae in defectu ordinarii deliberando. See ORDINARY (1); BENEFIT OF CLERGY (1).

derico infra sacros ordines constituto, non eligendo in officium. See DE CLERICO INFRA SACROS ORDINES CON­ STITUTO, NON ELIGENDO IN OFFICIUM.

dericus (kler-d-kds). [Law Latin "clergyman"] Hist. 1. Eccles. law. A person in holy orders; a priest or deacon. 2. A court clerk or officer of the royal household. 3. AMANUENSIS. clericus mercati (kler-3-kas mdr-kay-tI). [Law LatinJ See CLERK OF THE MARKET. clerk, n. (bef. 12c) 1. A public official whose duties include keeping records or accounts. dty clerk. A public official who records a city's official proceedings and vital statistics. [Cases: Municipal Corporations (;::::> 170.] town clerk. An officer who keeps the records, issues calls for town meetings, and performs the duties of a secretary to the town's political organization. [Cases: Towns C.::~'30.1 2. A court officer responsible for filing papers, issuing process, and keeping records of court proceedings as generally specified by rule or statute. - Also termed clerk of court. [Cases: Clerks of Courts district derk. The clerk of a district court within a state or federal system. See district court under COURT. [Cases: Clerks of Courts (;::::> 1.] 3. An employee who performs general office work. 4. A law student or recent law-school graduate who helps a lawyer or judge with legal research, writing, and other tasks. - Also termed law clerk; extern; or (depending on the time of year) summer clerk; summer associate. See INTERN. [Cases: Courts (>55.] 5. A lawyer who assists a judge with research, writing, and case man­ agement. - Also termed briefing attorney; research attorney; staffattorney. [Cases: Courts (;::::>55.] "[Mlodern American judging in all courts of national sig· nificance - the federal courts and the more prominent state appellate courts - staggers along despite the burden of bloated caseloads and the shortcomings of distinctly human judges only by the delegation of a great deal of the labor of judging to law clerks: subordinate, anonymous, but often quite powerful lawyers who function as the non· commissioned officers in the army of the jUdiciary." John Bilyeu Oakley & Robert S. Thompson, Law Clerks Clnd the Judicial Process 2 (l980).

elbow clerk. An individual judge's personal clerk; esp., one who works closely with the judge.• The name derives from the metaphoric expectation that the clerk is always at the judge's elbow. pool clerk. A clerk who does not work for only one judge but performs a range ofduties for several judges or for the entire court. 6. Hist. A cleric. "Eventually the rule was established that 'clerks' of all kinds, who committed any of the serious crimes termed felonies, could be tried only in an ecclesiastical court, and therefore were only amenable to such punishments as that court could inflict. Any clerk accused of such crime was accordingly passed over to the bishop's court. He was there tried before ajury of clerks by the oaths of twelve compurgators; a mode of trial which usually ensured him an acquittal." J,W. Cecil Turner. Kenny's Outlines of Criminal Law 75 (16th ed. 1952).

7. SECRETARY (3).

reading clerk. A legislative officer charged with reading bills to the body. derk, vb. To work as a clerk <she clerked for a Chicago law firm last summer>. derk of arraigns (J-raynz). Hist. A deputy of the clerk of assize responsible for arraigning defendants and putting the formal questions to the jurors as they deliver their verdict. • The office was abolished in England in 1946. derk of assize (J-SIZ). Hist. An assize associate respon­ sible for record-keeping and other clerical and admin­ istrative fllnctions. See ASSOCIATE (3). derk of court. See CLERK (2). derk ofenrollments. Hist. The former chief of the Enroll­ ment Office, which the British Parliament abolished in 1879, reassigning its duties to the Central Office. See ENROLLMENT OFFICE; CENTRAL OFFICE.

clerk of indictment. Hist. An officer of England's Central Criminal Court, responsible for preparing indictments and assisting the Clerk of Arraigns.• The office was abolished in 1946, when its duties were moved to the Central Office. See CENTRAL OFFICE. Clerk of Nichils. See NICHIL. clerk ofrecords and writs. Hist. An officer of the English Court of Chancery responsible for filing documents and sealing bills of complaint and writs of execution. • The office was abolished in 1879, when its duties were moved to the Central Office. See CENTRAL OFFICE. derk of the corporation. See SECRETARY (2). Clerk of the Crown in Chancery. The head of the per­ manent staff of the Crown Office in Chancery (of the Central Office), responsible for reading the title ofBills in the House of Lords, sending out writs of summons to peers, and issuing election writs. . Clerk of the House of Commons. An officer of the House ofCommons who keeps the House journal, signs orders, indorses bills sent to the House of Lords, and has custody ofall records .• The Clerk is appointed for life by the Crown. derk of the market. Hist. 'The overseer of a public market, responsible for witnessing oral contracts, inquiring into weights and measures, measuring land, and settling disputes between people dealing there .• The office has become obsolete as a result ofvarious statutes regulat­ ing weights and measures. Clerk of the Parliaments. The principal permanent official of the House of Lords, responsible for the House's minutes and documents, and for advising the members on procedure. Clerk of the Peace. Hist. An officer of the Quarter Sessions responsible for maintaining the courts' records, preparing indictments, entering judgments, issuing process, and other clerical and administra­ tive functions .• The office was abolished in England in 1971, when the Quarter Sessions' jurisdiction was

transferred to the Crown Courts. See quarter session under SESSION (1). Clerk of the Pells. Hist. An Exchequer officer who entered tellers' bills on the parchment rolls (pells), one for receipts and the other for disbursements. - Also termed Master of the Pells. Clerk of the Pipe. Hist. An Exchequer officer respon­ sible for the Pipe Rolls .• The office was abolished in 1833. - Also termed Engrosser of the Great Roll. See PIPE ROLLS.

Clerk of the Privy Seal (priv-ee sed). Hist. An officer responsible for preparing documents for the Lord Privy SeaL _ The use of the Privy Seal was abolished in 1884. See PRIVY SEAL. Clerk of the Signet (sig-nit). Hist. An officer who kept the privy signet and attended the sovereign's principal secretary.• The signet was used to seal royal letters and other documents not requiring the Great Seal of the Realm. The office was abolished in England in 1851. See great seal (3) under SEAL; PRIVY SIGNET. clerkship. (1836) 1. An internship in which a law student or recent law-school graduate assists a lawyer or judge with legal writing, research, and other tasks .• In many common-law jurisdictions, recent law-school graduates are required to complete clerkships as a condition of admission to the bar. [Cases: Courts 2. Hist. A law student's employment as an attorney's apprentice before gaining admission to the bar.• Until shortly before World War II, a person could be admitted to the bar in many states without attending law school merely by passing the bar exam. derk's record. See RECORD (4). dick fraud. See FRAUD. dick-wrap agreement. See POINT-AND-CLICK AGREE­ MENT.

dick-wrap license. See POINT-AND-CLICK AGREEMENT. cliens (kh-enz), n. [Latin "client") Roman law. A depen­ dent; a person who depended on another for defense in suits at law and other difficulties .• A c/iens was often a freed slave or immigrant. PI. clientes (kh-en-teez). dient, n. (14c) A person or entity that employs a profes­ sional for advice or help in that professional's line of work. cliental, adj. client control. The influence that a lawyer has over his or her client, esp. in relation to positions taken, deci­ sions made, and general conduct with other parties and their attorneys .• Lawyers whose clients behave irrationally, as by acting vindictively or refusing even generous settlement offers, are said to have little or no client control. clientela (kh-,m-tee-lJ), n. [Latin] Roman law. 1. Client­ ship; the relationship between a cliens and a patron. 2. A person's dependents. client-security fund. See FUND (1). client's privilege. See attorney-client privilege under PRIVILEGE

(3).

client state. See STATE. closed corporation. See close corporation under COR­ PORATION. client trust account. A bank account, usu. interest -bear­ ing, in which a lawyer deposits money belonging to a closed court. 1. Hist. The English Court of Common client (e.g., money received from a client's debtor, from Pleas, open only to serjeants-at-law.• The monopoly the settlement of a client's case, or from the client for of the serjeants-at-law was abolished in 1845. 2. See later use in a business transaction). - Also termed trust closed session (2) under SESSION (1). 3. See closed session account. [Cases: Attorney and Client 120.] (3) under SESSION (1). Clifford trust. See TRUST. close debate. Parliamentary law. To pass a motion that ends debate and amendment of a pending question clinch, vb. Parliamentary law. To preclude further or series of questions.• The synonymous shorthand action on (an adopted motion or series of motions) by "previous question," a somewhat archaic and mislead­ moving at once for reconsideration and then defeat­ ing term that several parliamentary manuals still use ing that motion .• The clincher motion in a legislative for this motion, has evolved over time. Two centuries body usu. takes the form of a motion to "reconsider ago, the motion was invented for suppressing an unde­ and lay on the table [the motion to reconsider]." Since sirable debate: if the original form "Shall the main the motion has just been debated and passed, there question be put?" passed in the negative, then the are almost always enough votes to defeat a motion to body immediately stopped considering the pending reconsider. clincher, n. question. The motion's form later became "that the clinical diagnosis. See DIAGNOSIS. main question shall now be put," which if passed in clinical legal studies. (1972) Law-school training in the affirmative brought the pending question to an immediate vote, and if passed in the negative had no which students participate in actual cases under the supervision of a practicing attorney or law professor. effect. - Also termed vote immediately. See CLOTURE. Cf. EXTEND DEBATE; LIMIT DEBATE . • This training was first introduced in the late 19608 under the leadership of Gary Bellow and others. It dosed-ended claim. See PATENT CLAIM. provided law students with a substitute for traditional closed-end fund. See MUTUAL FUND. apprenticeship programs. Often shortened to clinical closed-end mortgage. See MORTGAGE. studies. Cf. CLERKSHIP (1). dosed-end mortgage bond. See BOND (3). clinical pneumoconiosis. See PNEUMOCONIOSIS. dosed insurance contract. See closed policy under clog on the equity of redemption. An agreement or INSURANCE POLlCY. condition that prevents a defaulting mortgagor from getting back the property free from encumbrance upon closed memorandum. See MEMORANDUM. paying the debt or performing the obligation for which dosed mortgage. See closed-end mortgage under the security was given. See EQUITY OF REDEMPTION. MORTGAGE. [Cases: Mortgages (;::>591(3).J closed nonunion shop. See SHOP. close, n. (14c) 1. An enclosed portion of land. 2. The closed policy. See INSURANCE POLICY. interest of a person in a particular piece of land, enclosed or not. 3. The final price of a stock at the end closed session. See SESSION (1). of the exchange's trading day. closed shop. See SHOP. dose, vb. (13c) 1. To conclude; to bring to an end . 2. To conclude discussion or negotia­ employer to hire and retain only union members and tion about . See CLOSING. to discharge nonunion members. See closed shop under SHOP. [Cases: Labor and Employment ~--::> 1264.J close-connectedness doctrine. A doctrine used by some courts to deny an assignee of a negotiable note dosed source, adj. Of or related to software that does holder-in-due-course status if the assignee is too closely not include the source code and cannot be modified connected to the original holder-mortgagee. Also without either damaging the program or violating the termed close-connection doctrine. [Cases: Bills and software developer's ownership rights .• Proprietary Notes software is usu. dosed source. close corporation. See CORPORATION. dosed testament. See mystic will under WILL.

dosed, adj. (Be) L (Of a class or organization) confined closed transaction. See TRANSACTION.

to a limited number closed trial. See TRIAL.

<nonunion workers were excluded from the closed closed union. See UNION.

shop>. 2. (Of a proceeding or gathering) conducted in secrecy 1.1,23.1,39.] unindicted coconspirator. (1936) A person who has been identified by law enforcement as a member of a conspiracy, but who has not been named in the fellow conspirator's indictment.• Prosecutors typically name someone an unindicted coconspirator because any statement that the unindicted coconspirator has made in the course and furtherance of the conspiracy

is admissible against the indicted defendants. Also termed unindicted conspirator. [Cases: Criminal Law (:::::';422-428.] coconspirator's exception. (1954) An exception to the hearsay rule whereby one conspirator's acts and state­ ments, if made during and in furtherance of the con­ spiracy, are admissible against a codefendant even if the statements are made in the codefendant's absence. See Fed. R. Evid. 801(d)(2)(E). Also termed cocon­ spirator's rule. See HEARSAY. [Cases: Criminal 422-428; Evidence C.O.D. abbr. (1859) 1. Cash on delivery; collect on delivery.• By consenting to this delivery term, the buyer agrees to pay Simultaneously with delivery and appoints the carrier as the buyer's agent to receive and transmit the payment to the seller. With C.O.D. con­ tracts, the practice of carriers has traditionally been to disallow inspection before payment. [Cases: Sales (;:::;o.·S2(3).] 2. Costs on delivery. 3. Cash on demand. ­ Sometimes written c.o.d. . CODA. abbr. CASH OR DEFERRED ARRANGEMENT. code. (ISc) 1. A complete system of positive law, care­ fully arranged and officially promulgated; a system­ atic collection or revision oflaws, rules, or regulations .• Strictly, a code is a compilation not just of existing statutes, but also of much of the unwritten law on a subject, which is newly enacted as a complete system oflaw. - Also termed consolidated laws. See CODIFICATION "A code is not only a collection of the existing statutory law, but also of much of the unwritten law on any subject. and is composed partly of such materials as might be at hand from all sources - from statutes, cases, and from customs - supplemented by such amendments, altera· tions, and additions as are deemed by the codifiers neces­ sary to harmonize and perfect the existing system. In fact, in making a code, new laws may be added and old laws repealed in order to constitute a complete system." William M. Lile et aI., Brief Making and the Use of Law Books 18-19 (3d ed. 1914)

2. (usu. cap.) The collection oflaws and constitutions made by order of the Roman Emperor Justinian and first authoritatively published in A.D. 529 (with a second edition in 534).• Contained in 12 books, the Code is one of four works that make up what is now called the Corpus Juris Civilis. - Also termed (in sense 2) Legal Code. See CODEX; CORPUS JURIS CIVILIS. Code Adam. A procedure used by offices, stores, and other places to alert people to look for a child who has become separated from a parent or guardian and has been reported as missing somewhere within the building.• Typically, a description of the missing child is broadcast over a paging system. All exits are locked or closely monitored. If the child is not found within a short time, the police are called. Many stores, museums, malls, and amusements parks have adopted some form of Code Adam. In 2003, Congress passed legislation requiring Code Adam programs in all federal office buildings. This term is a memorial to 6-year-old Adam

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Walsh of Florida, who in 1981 was abducted from a I • The American Bar Association drafted a Model Code department store and murdered. Cf. AMBER ALERT. ofJudicial Conduct and formally adopted it in 1972. In 1973, the U.S. Judicial Conference used the code as the Code Civil. The code embodying the civil law of France, basis for the Code of Conduct for United States Judges. dating from 1804 .• It was first known as the Code civil Portions of the code are also found in federal law (see, des franr,:ais to distinguish it from the other four codes e.g. 28 USCA § 455). The 1972 ABA Code has been promoted by Napoleon. From 1807 to 1816 it was called superseded by the 1990 ABA Model Code of Judicial Code Napoleon, a title that was restored by a decree of Conduct. Each state has a code of judicial conduct, Louis Napoleon. Since 1870, French statutes have con­ based on the 1972 or 1990 model codes or a blend of sistently referred simply to the code civil. Cf. NAPOLE­ both. A state's highest court is responsible for drafting ONIC CODE. See CIVIL CODE (1). and enacting the code. - Abbr. qc. [Cases: Judges coded communications. Messages that are encoded or (;::;:> 11(2).) enciphered by some method oftransposition or substi­ Code of Justinian. See JUSTINIAN CODE. tution so that they become unintelligible to anyone who does not have the key to the code or cipher. Code of Military Justice. The collection of substan­ tive and procedural rules governing the discipline of Code de commerce (kohd da kaw-mairs). A codifica­ members ofthe armed forces. 10 USCA §§ 801 et seq. ­ tion of French commercial law, enacted in 1807, dealing Also termed Uniform Code ofMilitary Justice (UCMJ). with commercial transactions, bankruptcy, and the [Cases: Armed Services (>42.1; Military Justice jurisdiction and procedure of the courts handling these 502.] subjects.• This code supplemented the Code Napoleon. See NAPOLEONIC CODE. Code of Professional Responsibility. See MODEL CODE OF PROFESSIONAL RESPONSIBILITY. Code de procedure civil (kohd da praw-se-door see­ veel). A French civil-procedure code, enacted in 1806 code of war. Legal rules that regulate international and appended to the Code Napoleon. See NAPOLEONIC armed conflict. • A code of war may arise from many CODE. sources, including custom, treaties, scholarly writings, and domestic legislation. One of the earliest known Code d'instruction criminelle (kohd dan-struuk-see­ treatises on rules governing the conduct of war was awn kri-mi-nel). A French criminal-procedure code, written by Sun Tzu in the 4th century B.C. [Cases: War enacted in I8H and appended to the Code Napoleon. See NAPOLEONIC CODE. and National Emergency (;::;:>9.] codefendant. (17c) One of two or more defendants Code penal (kohd pay-nal). The fourth of five codes sued in the same litigation or charged with the same promoted by Napoleon, enacted in 1810, setting forth crime. - Also termed joint defendant. Cf. COPLAIN­ the penal code of France. See NAPOLEONIC CODE. TIFF. code pleading. See PLEADING (2). Code Napoleon (kohd na-poh-Iay-awn). See NAPOLE­ code state. Hist. A state that, at a given time, had already ONIC CODE. procedurally merged law and equity, so that equity was Code Noir (kohd nwahr). [French "black code"] Hist. A no longer administered as a separate system; a state in body oflaws issued by Louis XIV and applied in French which there is only one form of civil action .• This term colonies.• The Code regulated slavery and banned was current primarily in the early to mid-20th century. Jews and non-Catholic religiOUS practices from the Cf. NONCODE STATE. colonies. codex (koh-deks). [Latin) Archaic. 1. A code, esp. the Jus­ code ofconduct. (1919) A written set of rules governing tinian Code. See JUSTINIAN CODE. 2. A book written on the behavior of specified groups, such as lawyers, gov­ paper or parchment; esp., a volume of an ancient text. ernment employees, or corporate employees. [Cases: Codex Gregorianus (koh-deks gri-gor-ee-ay-nas). Attorney and Client (>:::032(2); Officers and Public [Latin] Roman law. A collection of imperial constitu­ Employees 10.) tions compiled by the Roman jurist Gregorius and pub­ Code of Federal Regulations. The annual collection of lished in A.D. 291. Also termed Gregorian Code. executive-agency regulations published in the daily "The imperial enactments, rapidly increasing in number, Federal Register, combined with previously issued reg­ covering, at hazard, the whole range of law, and, by reason of difficulties of communication and imperfect methods of ulations that are still in effect. - Abbr. CFR. [Cases: promulgation, not always readily ascertainable, created a Administrative Law and Procedure (;::;:>407.) burden for the practitioner almost as great as that of the Code of Hammurabi (hah-ma-rah-bee or ham-. Brokers ~39-75; Labor and Employment double commission. A commission obtained by a person acting in dual roles, each of which gener­ ates a commission, such as a person serving as both executor and trustee in an estate matter. - Double commissions paid without proper authority or disclo­ sure may raise fidUciary-duty issues. See FIDUCIARY; fiduciary duty under DUTY (2). [Cases: Brokers ~ 67(1); Executors and Administrators 0'495(0.5); Trusts C:::.>316(l).] commissionaire. See AGENT. commission broker. See BROKER. com~ission day. English law. The opening day of the assizes. - On this day the commission that authorizes the judge to act is publicly read. Also written com­ mission-day. commission del credere (del kred-;)r-ay). (lSc) The com­ mission received by the seller's agent for guaranteeing a buyer's debt. [Cases: Factors (::;:::'29.] commissioned officer. See OFFICER (2). commissioner. (15c) 1. A person who directs a commis­ sion; a member of a commission. 2. The administrative head of an organization, such as a professional sport. 3. See judicial officer (3) under OFFICER. bail commissioner. See BAIL COMMISSIONER. Commissionerfor Patents. The chief operating officer of the patents section of the U.S. Patent and Trade­ mark Office. - The commissioner is appOinted by the Secretary of Commerce. Commissioner for Trademarks. The chief operating officer ofthe trademarks section of the U.S. Patent and

307

Trademark Office. - The commissioner is appointed by the Secretary of Commerce. commissioner in bankruptcy. English law. A com­ missioner who is appointed by the Lord Chancellor and empowered to proceed in corporate-bankruptcy cases. commissioner ofbail. See BAIL COMMISSIONER. commissioner of circuit court. A court-appointed officer who helps the circuit and district courts by performing judicial and ministerial functions. Court Commissioners (:::::: 1.] commissiotler ofdeeds. An officer authorized by a state to take acknowledgments of deeds and other papers while residing in another state. - The acknowledg­ ments are recognized in the state that licensed the commissioner. Cf. NOTARY PUBLlC. [Cases: Acknowl­ edgment commissioner ofhighways. A public officer responsible for overseeing the construction, alteration, and repair of highways. (Cases: Highways (::::::93.] commissioner ofpartition. An equity-court-appointed officer who is empowered to examine a request for partition and recommend an action to the court, or to make the partition and report the act to the court. Commissioner of Patents and Trademarks. See DIRECTOR OF THE UNITED STATES PATENT AND TRADEMARK OFFICE.

commissioner of woods and forests. Hist. An officer who, by an 1817 Act ofPariiament, assumed the juris­ diction of the Chief Justice of the Forest. county commissioner. A county officer charged usu. with the management ofthe county's financial affairs, its police regulations, and its corporate business. Also termed county supervisor. (Cases: Counties 38.] court commissioner. An officer appointed by the court esp. to hear and report facts, or to conduct judicial sales. [Cases: Court Commissioners jury commissioner. An officer responsible for drawing and summoning the panels of potential jurors in a given county. [Cases: Jury~59.1 public commissioner. See PROSECUTOR (1). town commissioner. A member of the board of admin­ istrative officers charged with managing the town's business. [Cases: Towns~26.1 United States Commissioner. Hist. A judicial officer appointed by a u.s. district court to hear a variety of pretrial matters in criminal cases. - Commission­ ers' duties have been transferred to U.S. Magistrate Judges. Cf. UNITED STATES MAGISTRATE JUDGE. commissioner's court. See COURT. commission government. A type of municipal govern­ ment in which the legislative power is in the hands of a few people. commission merchant. See FACTOR (2).

Commission of Oyer and Terminer

commission ofappraisement and sale. Maritime law. A court order requiring the sale ofproperty in an in-rem admiralty action. [Cases: Admiralty~99.] commission of assize. Hist. A royal authorization empowering a person to hold court and try cases arising while the justices in eyre held court elsewhere. Cf. EYRE. "[Bloth the presentment of crimes and the conduct of trials by assize or jury which rapidly became a common feature of royal justice required the presence of twelve or more men from the vicinity where the matter in question occurred.... The means of achieving this reconciliation was the frequent issue of commissions to perform judicial functions in the country.... [A)ssize commissioners had original jurisdiction to hear a case from beginning to end .... But the assizes. though moulded into a regular routine, never became a distinct 'court' in the permanent sense. The jurisdiction of the judges rested entirely on the commissions which issued for each circuit: the judges could therefore be regularly interchanged, and after 1340 it was quite normal for a Common Plea case to be tried at nisi prius by a King's Bench judge, and vice versa." J.H. Baker, An Introduction to English Legal History 67 (3d ed. 1990).

commission of charitable uses. Hist. An authorization issuing out of the Court of Chancery to a bishop or other person authorizing the appointee to investigate allegations of fraud or other disputed matters concern­ ing charitable land grants. commission of delegates. Hist. A commission appoint­ ing a person (usu. a lord, bishop, or judge) to sit with several other appointees to hear an appeal of an eccle­ siastical judgment in the Court of Chancery. - This commission was abolished in 1832, and its functions transferred to the Judicial Committee of the Privy Council. Commission of Fine Arts. An independent federal com­ mission that advises the President, Congress, and gov­ ernmental agencies on the design of public buildings, memorials, and parks in the nation's capital so as to complement historic structures and districts. - The commission was created in 19lO. Commission of Gaol Delivery. Hist. A royal appoint­ ment authorizing a judge to go on the assize circuit and hear all criminal cases of those held in county jails. See JAIL DELIVERY. Cf. COMMISSION OF OYER AND TERMINER.

commission oflieutenancy. Hist. A commission issued to send officers into every county to establish military order over the inhabitants. _ 'Ibis commission super­ seded the former commission of array, which provided the same powers. The commissions became obsolete with the establishment of the militia system. commission oflunacy. See DE LUNATICO INQUIRENDO. Commission ofOyer and Terminer (oY-dr an[d] t~r-md­ ndr). [Law French oyer et terminer "to hear and deter­ mine"] Hist. A royal appointment authorizing a judge (often a serjeant-at-law) to go on the assize circuit and hear felony and treason cases. Cf. COMMISSION OF GAOL DELIVERY; COURT OF OYER AND TERMINER.

"[UJnder the commission of Oyer and Terminer, as the judges are directed to inquire as well as to hear and

determine the same, they can only proceed upon an indict· ment found at the same assize, and before themselves; for they must first inquire by means of the grand jury or inquest, before they are empowered to hear and determine by the intervention of the petit jury." 1 Joseph Chitty, A Practical Treatise on the Criminal Law 142 (2d ed. 1826).

commission of partition. An authorization appointing a person to sit with several other appointees for the purpose of dividing land held by tenants in common who desire a partition. [Cases: Partition commission ofrebellion. Hisi. An attaching process that empowered a layperson to arrest and bring a defendant to Chancery to enforce obedience to a writ of subpoena or decree.• The commission of rebellion was abolished in 1841. - Also termed writ of rebellion; commissio rebellionis; breve rebellion is. "Commission of rebellion (Commissio rebellionis) is other· wise called a writte of rebellion, (breve reiJellionis) and it hath use, when a man after proclamation made by the Shyreeve upon an order of the channcerie, or court of Starre chamber, under penaltie of his allegance, to present himselfe to the court by a certaine day, appeareth not. And this commission is directed by way of command to certain persons, to this end, that they ... apprehend, or cause to be apprehended, the party as a rebell and contemner of the kings lawes." John Cowell, The Interpreter (1607).

commission of review. Hist. In England, an authoriza­ tion sometimes granted in an extraordinary case to review a judgment of the Court of Delegates.• The commission of review is no longer used because the Privy Council was substituted for the Court of Del­ egates as the appellate court in ecclesiastical cases in 1832. See COURT OF DELEGATES. commission of the peace. Hist. An appointment of a person to keep the peace (Le., provide police protec­ tion) on a 10calleveI. • Over time the recipients of these commissions began to acquire judicial responsibilities, and became known as justices of the peace. commission of unlivery (.:m-liv-..r-ee). Hist. A court order requiring the unloading of goods from a ship so that they may be appraised. Commission on Civil Rights. See UNITED STATES COM­ MISSION ON CIVIL RIGHTS.

commission plan. (1919) A form of municipal govern­ ment whereby both legislative and executive power is vested in a small group of elected officials .• Today, commission plans are used in a few cities. [Cases: Municipal Corporations commission to examine a witness. A judicial commis­ sion directing that a witness beyond the court's terri­ torial jurisdiction be deposed. - The commission usu. identifies the person to be deposed, when and where the deposition will be taken, and any other information that will help the commissioner to perform. - Also termed commission to take a deposition; commission to take testimony. Cf. LETTER OF REQUEST. [Cases: Pretrial Procedure C=::,66, 96, commission to take a deposition. See COMMISSION TO EXAMINE A WITNESS.

commission to take testimony. See

COMMISSION TO

EXAMINE A WITNESS.

commissio rebellion is. See COMMISSION OF REBELLION. commissive waste. See WASTE (1). commissoria lex. See LEX COMMISSORIA. commit, vb. 1. To perpetrate (a crime). 2. To send (a person) to prison or to a mental health facility, esp. by court order. 3. Parliamentary law. REFER. commitment, n. (14c) 1. An agreement to do something in the future. esp. to assume a financial obligation . 2. The act of entrusting or giving in charge . 3. The act of confining a person in a prison, mental hospital, or other institution . [Cases: Mental Health C=31-37; Sentencing and Punishment (;:::462, 463.]4. The order directing an officer to take a person to a penal or mental institution; MITTIMUS (1) . civil commitment. See CIVIL COMMITTMENT (1). diagnostic commitment. Pretrial or presentencing con­ finement of an individual, usu. to determine the indi­ vidual's competency to stand trial or to determine the appropriate sentence to be rendered. [Cases: Mental Health C=434.] discretionary commitment. A commitment that a judge mayor may not grant, depending on whether the government has proved usu. by clear and con­ vincing evidence - that the commitment is necessary for the well-being of the defendant or society (as when the defendant is insane and dangerous) .• Most states allow discretionary commitment. mandatory commitment. (1985) An automatically required commitment for a defendant found not guilty by reason of insanity. - 'TIlis type of com­ mitment is required under federal law, but in minority of states. [Cases: Mental Health new court commitment. The confinement in prison ofa person who is being admitted on a new conviction that is, someone who is not being returned to prison for a parole violation. voluntary commitment. A commitment of a person who is ill, incompetent, drug-addicted, or the like, upon the request or with the consent of the person being committed. commitment document. An order remanding a defen­ dant to prison in order to carry out a judgment and sentence. commitment fee. An amount paid to a lender by a poten­ tial borrower for the lender's promise to lend money at a stipulated rate and within a speCified time .• Com­ mitment fees are common in real estate transactions. See LOAN COMMITMENT. commitment letter. 1. A lender's written offer to grant a mortgage loan. - The letter generally outlines the loan

committee

309

amount, the interest rate, and other terms. - Also termed letter of commitment. [Cases: Mortgages C= 211.] 2.

LETTER OF INTENT.

commitment warrant. See warrant of commitment under WARRANT (1). committee. 1. (k;J-mit-ee). A subordinate group to which a deliberative assembly or other organization refers business for consideration, investigation, oversight, or action . "One of the outstanding characteristics of membership organizations the world over is the powerful role played by committees in setting policy and in carrying out their objectives. The Congress, state legislatures, business associations, and countless clubs and societies have tra­ ditionally conducted their work through committees of their members." Lewis Deschler, Deschler's Rules of Order § 103, at 189 (1976).

ad hoc committee. See special committee. arrangements committee. A committee charged with organizing the physical space in which a deliberative assembly meets. audit committee. A committee appointed by the board of an organization, esp. a corporation, to oversee the financial reporting process, select an independent auditor, and receive the audit .• Ideally, a committee member is financially literate and wholly indepen­ dent, having no financial interest (direct or indirect) in the company, no executive position, and no familial relationship with any member of the company's man­ agement or a major shareholder. [Cases: Corporations C=320(5).] committee of one. A committee with only one member. committee ofthe whole. A special committee that com­ prises all the deliberative assembly's members who are present. • A deliberative assembly may resolve itself into a committee of the whole so that it can take advantage of the greater procedural flexibility that a committee enjoys, usu. presided over by some chair other than the assembly's regular chair. Cf. quasi com­ mittee of the whole. [Cases: States C= 32.] committee on conference. See conference committee. committee with full power. See committee with power. committee with power. A committee to whom the referring body has delegated the necessary authority for acting on the business referred, usu. without need for a prior report to the referring body. - Also termed committee with full power. conference committee. A joint meeting of two legisla­ tive committees, one from each house of a bicameral legislature, usu. charged with adjusting differences in a bill passed by both houses in different versions. ­ Also termed committee on conference. See CONFER­ ENCE (2). [Cases: States C=34.] "A committee on conference from each of the two houses meeting together is not a joint committee but a joint meeting of two committees. The quorum of a committee on conference is a majority of the members of each com· mittee. In voting in a conference committee, the committee

of each house votes separately. The committee on confer­ ence from each house submits its report to the house from which it was appointed. The report, upon being received, may be treated like other reports, except that the report of a conference committee is usually given a higher pre­ cedence. Under no condition, including suspension of the rules, may the house alter or amend the report of the com­ mittee, but must adopt or refuse to adopt the report in the form submitted." National Conference of State Legislatures, Mason's Manual of Legislative Procedure § 770, at 558-59 (2000).

congressional committee. A committee of the House of Representatives, a committee of the Senate, or a joint committee. [Cases: United States C=23.] credentials committee. A committee charged with preparing a roster of delegates entitled to be seated, examining contested claims to such entitlement, and preparing and issuing credentials to the delegates who appear so entitled. See CREDENTIAL. executive committee. The committee of principal officers and directors who directly manage an orga­ nization's affairs between board meetings. [Cases: Corporations C=299.] joint committee. A legislative committee composed of members of both houses of a legislature. legislative committee. A group oflegislators appointed to help a legislature conduct its business, esp. by pro­ viding careful consideration of proposals for new legislation within a particular field so that the entire body can handle its work efficiently without wasting time and effort on unmeritorious submissions. [Cases: States C=34.] membership committee. A committee charged with recruiting and keeping members and getting them involved. nominating committee. A committee charged with identifying (and perhaps recruiting) and recommend­ ing a suitable candidate or candidates for election by a deliberative assembly. - Also termed screening com­ mittee. [Cases: Elections C= 134.] ordinary committee. A committee other than a com­ mittee of the whole. parent committee. A committee that refers business to a subcommittee .• The parent committee is so called only when considered in relation to the subcommit­ tee. See subcommittee. permanent committee. See standing committee. platform committee. A committee charged with developing a comprehensive statement of an orga­ nization's, usu. a political party's, public policies and principles. program committee. The committee that .olans a con­ vention's program, usu. including both its formal business and its educational and social events. quasi committee of the whole. A committee of the whole over which the deliberative assembly's regular chair presides. reference committee. See resolutions committee.

resolutions committee. A committee charged with screening the original main motions offered for a convention's consideration. - Also termed reference committee; screening committee. [Cases: Elections (:::::J 132.]

rules committee. A committee charged with drafting rules and an agenda for the orderly conduct of a delib­ erative assembly's business, particularly that of a leg­ islative body or a convention. screening committee. 1. See nominating committee. 2. See resolutions committee. search committee. A committee charged with finding a suitable choice from several options, such as candi­ dates for employment or places for a meeting. select committee. See special committee. special committee. A committee established for a par­ ticular purpose or a limited time.• A legislature will ordinarily establish a special committee for a nonlegislative purpose, such as writing memorials, procuring chaplains, determining the qualifications of members, and settling election disputes. - Also termed ad hoc committee; select committee; temporary committee. [Cases: States (:::::J 34.] standing committee. A committee that is established for ongoing business, that continues to exist from session to session, and that is usu. charged with considering business of a certain recurring kind.• A legislature will ordinarily establish a standing committee con­ cerned with a specific field oflegislation. A legislative standing committee usu. considers basic questions of legislative policy, holds hearings on legislation, elimi­ nates unwanted bills, and prepares favored measures for passage. - Also termed permanent committee. [Cases: United States (:::::J23.] subcommittee. A group within a committee to which the committee may refer business, standing in the same relation to its parent committee as the com­ mittee stands to the deliberative assembly. See parent committee. tellers committee. A committee that helps the chair administer an election or other vote by handing out and picking up ballots if necessary, counting the votes or canvassing the ballots, and reporting the result to the chair for announcement. See CANVASS (2). temporary committee. See special committee. 2. (k;:lm-i-tee) A person who is civilly committed, usu. to a psychiatric hospital . [Cases: Mental Health (:::::J 36.] 3. (bm-i-tee) The guardian for the person so committed . Also termed jus commune.

common-law action

314

"In its historical origin the term common law (jus commune) was identical in meaning with the term general law .... The jus commune was the general law of the land - the lex terrae - as opposed to jus speciale. Bya process of historical development, however, the common law has now become, not the entire general law, but only the residue of that law after deducting equity and statute law. It is no longer possible, therefore, to use the expression common law and general law as synonymous." John Salmond, Juris­ prudence 97 (Glanville L. Williams ed., 10th ed. 1947). "[Ilt is necessary to dispose briefly of a problem of nomen­ clature. European equivalents of the expression 'common law' have been used, especially in Germany, to describe an emergent system of national law, based on the Roman model, that came into existence before national parlia­ ments undertook to enact laws for the nation as a whole. In this use, 'the common law' (gemeines Recht) was used to distinguish the commonly shared tradition of Roman law from local statutes and customs." Lon L. Fuller, Anatomy of the Law 133 (1968).

4. The body oflaw deriving from law courts as opposed

to those sitting in equity .• The common law of England was one of the three main historical sources of English law. The other two were legislation and equity. The common law evolved from custom and was the body oflaw created by and administered by the king's courts. Equity developed to overcome the occasional rigidity and unfairness of the common law. Originally the king himself granted or denied petitions in equity; later the task fell to the chancellor, and later still to the Court of Chancery. common-law action. See ACTION (4).

common-law assignment. See ASSIGNMENT (2).

common-law bond. See BOND (2).

common-law cheat. See CHEATING.

common-law contempt. See criminal contempt under

CONTEMPT.

common-law copyright. See COPYRIGHT. common-law corporation. See corporation by prescrip­ tion under CORPORATION. common-law crime. See CRIME. common-law dedication. See DEDICATION. common-law extortion. See EXTORTION (1). common-law fraud. See promissory fraud under FRAUD. common-law husband. See HUSBAND. common-law jurisdiction. See JURISDICTION. common-law lawyer. (19c) A lawyer who is versed in or practices under a common-law system. - Also termed common lawyer (16c). common-law lien. See LIEN. common-law malice. See actual malice (2) under MALICE.

common-law marriage. See MARRIAGE

(1).

common-law mortgage. See deed of trust under DEED. common-law pleading. See PLEADING (2).

common-law-property state. See COMMON-LAW STATE (2). common-law rule. (17c) 1. A judge-made rule as opposed to a statutory one. [Cases: Common Law (;=> 1.] 2. A legal as opposed to an equitable rule. 3. A general rule as opposed to one deriving from special law (such as a local custom or a rule of foreign law that, based on choice-of-Iaw principles, is applied in place of domestic law). 4. An old rule of English law. common-law seal. See SEAL (1). common-law specialty. See contract under seal under CONTRACT; SPECIALTY (1). common-law state. (1848) 1. NONCODE STATE. 2. Any state that has not adopted a community-property regime.• The chief difference today between a com­ munity-property state and a common-law state is that in a common-law state, a spouse's interest in property held by the other spouse does not vest until (1) a divorce action has been filed, or (2) the other spouse has died. Cf. COMMUNITY-PROPERTY STATE. common-law trust. See business trust under TRUST (4). common-law wife. See WIFE. common lawyer. See COMMON-LAW LAWYER. common market. See MARKET. Common Market. The European Economic Commu­ nity.• Common Market is a colloquial term - not a formal deSignation. See EUROPEAN UNION. common mistake. See mutual mistake (2) under MISTAKE.

common money bond. See BOND (2). common-nucleus-of-operative-fact test. (1966) The doctrine that a federal court will have pendent juris­ diction over state-law claims that arise from the same facts as the federal claims providing a basis for sub­ ject-matter jurisdiction .• One purpose of this test is to promote judicial economy. [Cases: Federal Courts (;=> 14.1.] "The modern doctrine of pendent jurisdiction, as announced by the Supreme Court in United Mine Workers v. Gibbs (1966), is much broader. ... Pendent jurisdiction, the Court said, existed whenever 'the state and federal claims ... derive from a common nucleus of operative fact,' and when considerations of judicial economy dictate having a single trial." David P. Currie, Federal Jurisdiction in a Nutshell 106 (3d ed. 1990).

common nuisance. See public nuisance under

NUI­

SANCE.

common occupant. See general occupant under occu­ PANT.

common of digging. See common in the soil under COMMON.

common of estovers. See COMMON. common of fishery. See common of piscary under COMMON.

common of pasture. See COMMON. common of piscary. See COMMON.

315

commorant

common of shack. See COMMON. common of turbary. See COMMON. common order. See conditional judgment under

JUDG­

MENT.

common parliamentary law. See PARLIAMENTARY LAW. common plan. See COMMON DESIGN. common plea. See PLEA (3). Common Pleas, Court of. See COURT OF COMMON PLEAS.

common property. See PROPERTY. common recovery. Hist. An elaborate proceeding, full oflegal fictions, by which a tenant in tail disentailed a fee-tail estate .• The action facilitated land transfer by allowing a potential transferee who was barred by law from receiving land to "recover" the land by suing the actual owner. Common recoveries, which were abolished early in the 19th century, were orig­ inally concocted by the clergy as a way to avoid the land-conveyance restrictions imposed by mortmain acts. - Also termed feigned recovery. See MORTMAIN STATUTE. Cf. CESSIO IN J"GREj praecipe quod reddat under PRAECIPE. "Here's how [the common recoveryl worked. S, with the connivance of A, would bring a real action against A claiming falsely that he, B, owned the land and demanding recovery of it. A responded by claiming, just as falsely, that he had acquired the land from C and that C had warranted title to the land. When A demanded of C, also an accom· plice of A, that he defend the title, C admitted falsely that he had, indeed, warranted the title. C allowed B to take a default judgment against A for the recovery of the land, and allowed A to obtain a default judgment against himself, C, for the recovery of land of equal value. The result of this fancy feudal footwork was to leave B with title to the land in fee simple and to leave A with his judgment against C. The judgment against C was viewed by the court as an adequate substitute for the entailed land. But when it came time for 0 or A's lineal heirs to enforce the judgment, it would transpire that C had been selected by A because he had no land at all! (Why else would C have played along?) Did the court have any suspicion that A, B, and C were col­ luding? Of course they did but how else, in the face of De Donis, could they unshackle land from the chains of the fee tail?" Thomas F. Bergin & Paul G. Haskell, Preface to Estates in Land and Future Interests 31-32 (2d ed. 1984).

common-return days. See dies communes in banco (1) under DIES. common rule ex parte. Hist. A court-docket entry reflecting that the case would be decided by a majority vote and would proceed even ifa notified party did not appear. See Billington v. Sprague, 22 Me. 34 (1842). common scheme. See COMMON DESIGN. common school. See public school under SCHOOL. common scold. See SCOLD. common serjeant. A judicial officer, appointed by the City of London, who helps the recorder in criminal trials. common-situs picketing. See PICKETING. common-source doctrine. (1938) The principle that a defendant in a trespass-to-try-title action who claims

under a source common to both the defendant and the plaintiff may not demonstrate title in a third source that is paramount to the common source because doing so amounts to an attack on the source under which the defendant claims title. [Cases: Trespass to Try Title common stock. See STOCK. common-stock equivalent. A security that is exchange­ able for common stock, and thus is considered to be the same as common stock.• Common-stock equivalents include certain types of convertible securities, stock options, and warrants. common-stock fund. See M"GTUAL FUND. common-stock ratio. The relationship of outstanding common stock to the corporation's total capitaliza­ tion.• The common-stock ratio measures the relative claims of stockholders to earnings (earnings per share and payout ratio), cash flow (cash flow per share), and equity (book value per share). Cf. PAYOUT RATIO. common substitution. See St:BSTITlJTION (4). common suit. See common plea (1) under PLEA (3). common tenancy. See tenancy in common under TENANCY.

common thief. See THIEF. common traverse. See TRAVERSE. common trust fund. See TRUST FUND. common venture. See common adventure under ADVEN­ TURE.

common wall. See party wall under WALL. commonweal (kom-an-weel). The general welfare; the common good. commonwealth. (15c) 1. A nation, state, or other politi­ cal unit . [Cases: States C=> 1.] 2. A political unit that has local autonomy but is voluntarily united with the United States . Cf. DEPENDENCY (1); INSULAR AREA; TER­ RITORY (2). 3. A loose association of countries that recognize one sovereign . • In this context, in Great Britain, the term British has been dropped from British Commonwealth; BrE speakers refer simply to the Commonwealth. Abbr. Commw.; comm. 4. The central (federal) power in Aus­ tralia. - Abbr. (in sense 4) Cwth. commonwealth attorney. A prosecutor in some jurisdic­ tions, such as Virginia. commonwealth court. See COURT. common without stint. See COMMON. commorancy (kom-a-ran-see). 1. Temporary residency. 2. English law. Permanent residency in a certain place. commorant (kom-a-rant). 1. A person who dwells in a place temporarily. 2. English law. A person who resides permanently in a certain place.

commorientes commorientes (ka-mor-ee-en-teez). (18c) [fro Latin com­ morior "to die together"]l. (pl.) Persons who die at the same time, often of the same cause, such as spouses 2. Civil who die in an accident. [Cases: Death law. The rule establishing presumptions of survivorship for purposes of succession regarding such persons. See simultaneous death under DEATH; UNIFORM SIMULTA­ NEOUS DEATH ACT.

commotion. See CIVIL COMMOTION. commune (kom-yoon), n. (17c) A community of people who share property and responsibilities. commune/orum (k;:l-myoo-nee for-;:lm). [Latin "common place ofjustice"] Hist. The seat of the principal English courts, esp. those that do not go on circuit. commune placitum (k;:l-myoo-nee plas-249-260, 268.] community grant. See GRANT. community lease. See LEASE.

Community mark. See Community trademark under TRADEMARK.

community-notification law. See MEGAN'S LAW. community obligation. See OBLIGATION. community of interest. (17c) 1. Participation in a joint venture characterized by shared liability and shared opportunity for profit. See JOINT VENTURE. [Cases: Joint Adventures C=> 1.2(7).] 2. A common grievance that must be shared by all class members to maintain the class action. See CLASS ACTION. [Cases: Federal 165; Parties C::;)35.17.] 3. Labor Civil Procedure law. A criterion used by the National Labor Relations Board in deciding whether a group of employees should be allowed to act as a bargaining unit.• The Board considers whether the employees have similar duties, wages, hours, benefits, skills, training, supervision, and working conditions. See BARGAINING UNIT. Labor and Employment C=> 1173.] community of profits. The right of partners to share in the partnership's profits. Community patent. See PATENT (J). Community Patent Convention. A 1975 treaty that, for patent purposes, treats the European Union as a single state and allows a patent applicant to obtain patent protection in all European Union nations through a Single blanket filing and examination procedure.• If the application is approved, the European Patent Office issues a single Community patent. The treaty's full name is the Convention for the European Patent for the Common Market. community policing. (1969) A law-enforcement tech­ nique in which police officers are assigned to a particu­ lar neighborhood or area to develop relationships with the residents for the purpose of enhancing the chances of detecting and thwarting criminal activity. community property. (1820) Assets owned in common by husband and wife as a result of its having been acquired during the marriage by means other than an inheritance or a gift to one spouse, each spouse gen­ erally holding a one-half interest in the property.• Only nine states have community-property systems: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin. See marital property under PROPERTY; TITLE DIVISION. Cf. COMMUNITY ESTATE; SEPARATE PROPERTY. Husband and Wife C=>249-260.] quasi-community property. Personal property that, having been acquired in a non-community-prop­ erty state, would have been community property if acquired in a community-property state .• If a com­ munity-property state is the forum for a divorce or administration of a decedent's estate, state law may allow the court to treat quasi-community property as if it were community property when it determines the spouses' interests. [Cases: Husband and Wife 246,249-260.]

community-property state

community-property state. (1907) A state in which spouses hold property that is acquired during marriage (other than property acquired by inheritance or indi­ vidual gift) as community property. See COMMU­ NITY PROPERTY. Cf. COMMON-LAW STATE (2). [Cases: Husband and Wife community service. Socially valuable work performed without pay.• Community service is often required as part of a criminal sentence, esp. one that does not include incarceration. lCases: Sentencing and Punish­ 1982.] ment Commu~ity trademark. See TRADEMARK. Community Trademark Treaty. A 1996 agreement allowing a trademark registrant to file a single appli­ cation with the European Trademark Office for trade­ mark protection in all European Union nations instead of filing a separate application in each country.• The trademark registrant does not have to be a citizen of a member nation to file an application. [Cases: Trade­ marks C--1236.] community trust. An agency organized to administer funds placed in trust for public-health, educational, and other charitable purposes in perpetuity. commutation (kom-ya-tay-sh;m), n. (15c) L An exchange or replacement. 2. Criminal law. The executive's substi­ tution in a particular case of a less severe punishment for a more severe one that has already been judicially imposed on the defendant. Cf. PARDON; REPRIEVE. [Cases: Pardon and Parole 28.] • Commutation may be based on the discovery of pertinent facts that were not known or available when the sentenced was decided, or that arose and were developed afterward. It may also be based on the executive's statutorily or constitutionally granted discretion, regardless of the facts. Under § 1-2.113 of the US DOr Manual, commu­ tation is rarely granted but may be considered for old age, illness, disparity, or undue severity of sentence. 3. Commercial & civil law. The substitution of one form of payment for another. commute, vb. - commu­ tative, adj. commutation of payments. Workers' compensation. A substitution of lump-sum compensation for periodic payments.• Ihe lump sum is equal to the present value of the future periodic payments. [Cases: Taxation 2295.] commutation of taxes. A tax exemption resulting from a taxpayer's paying either a lump sum or a specific sum in lieu of an ad valorem tax. [Cases: Taxation C:::o200.] Commutation of Tithes Act. Hist. An act of Parlia­ ment that permitted tithes to be levied and collected in the form of cash rents rather than labor and goods in kind. commutation tax. See TAX. commutative contract. See CONTRACT. commutative justice. See JUSTICE (1). commuted value. See VALUE (2). Commw. abbr. COMMONWEALTH.

318

compact (kom-pakt), n. (14c) An agreement or covenant between two or more parties, esp. between govern­ ments or states. family compact. An agreement to further common interests made between related people or within a group that behaves as a family. _ Historically, some international treaties among nations ruled by monarchs have been called family compacts because of intermarriage among the royal houses. interstate compact. (1903) A voluntary agreement between states enacted into law in the participating states upon federal congressional approval. Cf. I)lTER­ STATE AGREEMENT. [Cases: States C:::o6.] Compact Clause. (1925) U.S. Const. art. I, § 10, cl. 3, which forbids a state from entering into a contract with another state or a foreign country without congressio­ nal approval. [Cases: States G=6.] companion hill. See BILL (3). companionship services. Assistance provided to someone who needs help with personal matters such as bathing and dressing.• This type of service (in contrast to housecleaning) is exempt from the Federal Labor Standards Act's minimum-wage and overtime requirements. company. (13c) 1. A corporation - Of, less commonly, an association, partnership, or union - that carries on a commercial or industrial enterprise. 2. A corpo~ ration, partnership, association, joint-stock company, trust, fund, or organized group of persons, whether incorporated or not, and (in an official capacity) any receiver, trustee in bankruptcy, or similar official, or liquidating agent, for any of the foregOing. Investment Company Act § 2(a)(8) (15 USCA § 80a-2(a)(8)). Abbr. CO.; com. bonding company. A company that insures a party against a loss caused by a third party. controlled company. A company that is under the control of an individual, group, or corporation that owns most of the company's voting stock. Cf. subsid­ iary corporation under CORPORATION. dead-and-buried company. A business that has dis­ solved, leaving no assets. deposit company. An institution whose business is the safekeeping of securities or other valuables deposited in boxes or safes leased to the depositors. See DEPOSI­ TARY; DEPOSITORY.

development-stage company. Securities. A company that devotes substantially all of its efforts to establish­ ing a new business in which the principal operations either have not yet begun or have begun but are not generating significant revenue. diversified holding company. A holding company that controls several unrelated companies or businesses. diversified investment company. An investment company that by law must invest 75% of its assets, but may not invest more than 5% of its assets in any

319

company

one company or hold more than 10% of the voting shares in anyone company. face-amount certificate company. An investment company that is engaged or proposes to engage in the business of issuing face-amount certificates of the installment type, or that has been engaged in this business and has such a certificate outstanding. See investment company. growth company. A company whose earnings have increased at a rapid pace and that usu. difects a high proportion of income back into the business. guaranty company. See surety company. holding company. (1906) A company formed to control other companies, usu. confining its role to owning stock and supervising management. - It does not par­ ticipate in making day-to-day business decisions in those companies. [Cases: Corporations investment company. A company formed to acquire and manage a portfolio of diverse assets by investing money collected from different sources. - The Invest­ ment Company Act of 1940 defines the term as an issuer of securities that (1) is, holds itself out to be, or proposes to be engaged primarily in the business of investing, reinvesting, or trading in securities; (2) is engaged or proposes to engage in the business of issuing face-amount certificates of the installment type, or has been engaged in this business and has such a certificate outstanding; or (3) is engaged or proposes to engage in the business ofinvesting, rein­ vesting, owning, holding, or trading in securities, and owns or proposes to acquire investment securi­ ties having a value exceeding 40% of the value of the issuer's total assets (exclusive ofgovernment securities and cash items) on an unconsolidated basis. 15 USCA § 80a-2(a)(16). Also termed investment trust. See

limited company. (1862) A company in which the lia­ bility of each shareholder is limited to the amount individually invested. - A corporation is the most common example of a limited company. limited-liability company. (1856) A company statu­ torily authorized in certain states that is character­ ized by limited liability, management by members or managers, and limitations on ownership transfer. Abbr. L.L.C. Also termed limited-liability corpora­ tion. [Cases; Limited Liability Companies (::::> 1-11.] management company. Any investment company that is neither a face-amount certificate company nor a unit-investment trust. See investment company;face­ amount certificate company; unit-investment trust under TRUST. mutual company. A company that is owned by its customers rather than by a separate group of stock­ holders. _ Many insurance companies are mutual companies, as are many federal savings-and-Ioan associations. See MUTUAL LNSURANCE COMPANY. [Cases: Building and Loan Associations (::::> 1; Cor­ porations (::::>3; Insurance parent company. See parent corporation under COR­ PORATION.

personal holding company. (1924) A holding company that is subject to special taxes and that usu, has a limited number of shareholders, with most of its revenue originating from passive income such as divi­ dends, interest, rent, and royalties. [Cases: Internal Revenue (::::> 3850.1-3858, 4120.] railroad company. See railroad corporation under COR­ PORATION.

[Cases: Securities Regulation (::::>211-222.] joint-stock company. (18c) 1. An unincorporated asso­ ciation of individuals possessing common capital, the capital being contributed by the members and divided into shares, ofwhich each member possesses a number of shares proportionate to the member's investment. [Cases: Joint-Stock Companies and Business Trusts 1-24.] 2. A partnership in which the capital is divided into shares that are transferable without the express consent ofthe partners. Also termed joint­ stock association; stock association. [Cases: Partner­ ship (::::>224.]

reporting company. A company that, because it issues publicly traded securities, must comply with the reporting requirements ofthe Securities Exchange Act of 1934. [Cases: Securities Regulation (;:::>35.23.] safe-deposit company. See DEPOSITARY (1), shelfcompany. A company that is formed without a particular purpose and may not actually operate until some purpose for its existence arises, usu. when sold to a buyer. - After being formed, shelf companies are usu. allowed to age before being offered for sale. The benefits of a shelf company to a buyer include time saved by not having to form a company, the appear­ ance of longevity, and easier access to credit. If the company is incorporated, it is also termed a shelf cor­ poration. small-business investment company. See SMALL-BUSI­

"The joint stock association or company developed early in English company law, the term being used to distinguish companies which operated on a joint account and with a 'joint stock' (in trade) of their members from companies (now obsolete) each member of whom traded on one's separate account with one's own stock in trade .. , . In Americanjurisdictions, the joint stock association is gener­ ally an unincorporated business enterprise with ownership interests represented by shares of stock." Henry G. Henn & John R. Alexander, Laws of Coypoyations § 50, at 109 (3d ed. 1983).

surety company. A company authorized to engage in the business ofentering into guaranty and suretyship contracts and acting as a surety on bonds, esp. bail, fidelity, and judicial bonds. Also termed guaranty company. [Cases: Bail (::::>60; Principal and Surety (::::>52.] title company. (1892) A company that examines real­ estate titles for any encumbrances, claims, or other

REAL-ESTATE INVESTMENT TRUST; MUTUAL FUND.

NESS INVESTMENT COMPANY.

320

company-run dividend-reinvestment plan

flaws, and issues title insurance. - Also termed title-guaranty company. See TITLE SEARCH. [Cases: Abstracts of Title (;::::>2.] trust company. (1834) A company that acts as a trustee for people and entities and that sometimes also operates as a commercial bank. - Also termed (if incorporated) trust corporation. See TITLE (1), (2). [Cases: Banks and Banking (;::::>310-315.] company-run dividend-reinvestment plan. See DIVI­ DEND-REINVESTMENT PLAN.

company's paper. See commercial paper under PAPER. company.union. See UNION. comparable (kom-par- 1175; Labor and Employ­ ment C=-2463.] comparatio literarum (kom-p.

compensatio injuriarum

compellativus (bm-pel-a-tI-v;lS). [fro Latin compellare "to accuse"] Hist. An adversary or accuser. compelling need. A need so great that irreparable harm or injustice would result if it is not met. _ Generally, courts decide whether a compelling need is present based on the unique facts of each case, In some juris­ dictions, however, statutes define "compelling need" or provide gUidelines for determining whether one exists. See, e,g" 5 USCA § 552(a)(6)(E)(v) (defining "compel­ ling need" for an expedited response to a Freedom of Information Act request). compelling-state-interest test. (1966) Constitutional law. A method for determining the constitutional validity of a law, whereby the government's interest in the law and its purpose is balanced against an individual's consti­ tutional right that is affected by the law.• Only if the government's interest is strong enough will the law be upheld. The compelling-state-interest test is used, e.g., in equal-protection analysiS when the disputed law requires strict scrutiny. See STRICT SCRUTINY. [Cases: Constitutional Law (;::J 1053, 3062.) compensable (k;lm-pen-sa-b~I), adj. (17c) Able or entitled to be compensated for . Also termed recompensable. compensable death. See DEATH. compensable injury. See INJURY, compensate (kom-p;ln-sayt), vb. 1. To pay (another) for services rendered , 2. To make an amendatory payment to; to recompense (for an injury) . compensated surety. See SURETY, compensating balance. The amount ofmoney a borrower from a bank is reqUired to keep on deposit as a condi­ tion for a loan or a line of credit. compensatio (kom-pen-say-shee-oh), n, [Latin "weighing; balancing"] Roman law. A defendant's claim to have the plaintiff's demand reduced by the amount that the plaintiff owes the defendant. See SETOFF (2). compensatio criminis (kom·pen-say-shee-oh krim-a­ nis). [Latin) Eccles. law. A defendant's plea in a divorce action, alleging that the complainant is guilty of the same conduct that the defendant is charged with, esp. adultery. See RECRIMINATION (1). "The compensatio criminis is the standard canon law of England in questions of divorce, and it is founded on the principle that a man cannot be permitted to complain of the breach of a contract which he had first Violated; and the same prinCiple, it is to be presumed, prevails in the United States, So, if the injured party, subsequently to the adultery, cohabits with the other, or is otherwise reconciled to the other, after just grounds of belief in the fact, it is, in judgment of law, a remission of the offense, and a bar to the divorce." 4 James Kent, Commentaries on American Law *100-01 (George Comstock ed., 11th ed, 1866).

compensatio injuriarum (kom-pen-say-shee-oh in-juur­ ee-air-am). [Latin "the compensation of wrongs"] Scots law. The setoff in a defamation action.

compensation (kom-pan-say-shan), n. (14c) 1. Remu­ neration and other benefits received in return for services rendered; esp., salary or wages. [Cases: Labor and Employment (;::::j 168.] "Compensation consists of wages and benefits in return for services. It is payment for work. If the work contracted for is not done, there is no obligation to pay. [Compensa­ tion] includes wages, stock option plans, profit-sharing, commissions, bonuses, golden parachutes, vacation, sick pay, medical benefits, disability, leaves of absence, and expense reimbursement." Kurt H. Decker & H. Thomas Felix II, Drafting and Revising Employment Contracts § 3.17, at 68 (1991).

2. Pay~ent of damages, or any other act that a court orders to be done by a person who has caused injury to another.• In theory, compensation makes the injured person whole. [Cases: Damages G=::> 15.]3. SETOFF (2).­ compensatory, (k22.] compensation period. The time fixed by unemploy­ ment or workers' -compensation law during which an unemployed or injured worker is entitled to receive compensation. [Cases: Unemployment Compensation (;=>580-585.; Workers' Compensation C:)836-868.] compensatories. See compensatory damages (1) under DAMAGES.

compensatory damages. See DAMAGES.

compensatory payment. Family law. A postmarital spousal payment made by the richer ex-spouse to the poorer one and treated as an entitlement rather than as a discretionary award .• Compensatory payments are set by statute and are based on a formula using the length of the marriage, differences in postdivorce income, role as primary caregiver, and other factors. The purpose is to compensate somewhat for disparate income levels after a failed marriage. Cf. ALIMONY. compensatory time. See COMP TIME. comperendinatio (kom-p,'lr-en-da-nay-shee-oh), n. [Latin "to remand to the next day but one") Roman law. An adjournment of an action, particularly one of the actiones legis, to hear the parties or their advocates a second time; a second hearing of the parties to a case. • The judge (judex) would decide the case at the conclu­ sion of the second hearing. See LEGIS ACTIO. competence, n. (17c) 1. A basic or minimal ability to do something; qualification, esp. to testify . [Cases: Witnesses (;=>35.)2. The capacity of an official body to do something 104,j concedo (bn-see-doh). [Latin] Hist. I grant. _ This was formerly a term of conveyance. concentration account. A Single centralized bank account into which funds deposited at or collected at out-of-area locations are periodically transferred. conception of invention. (1859) Patents. The formation in the inventor's mind of a definite and permanent idea of a complete invention that is thereafter applied in practice. - Courts usu. consider conception when determining priority ofinvention. [Cases: Patents 90(1).] complete conception ofinvention. Patents. The point at which an inventor knows every feature of the process or device to be patented, such that a person with ordinary skill in the art could reproduce it without extensive research or experimentation. - Often shortened to complete conception. [Cases: Patents C=>90(I).J conceptum (bn-sep-t. 3. A com­ munication made in trust and not intended for public disclosure; sped£., a communication protected by the attorney-client or similar privilege .• Under the ABA Code of Professional Responsibility, a lawyer cannot reveal a client's confidence unless the client consents after full disclosure. DR 4-101. Cf. SECRET (2). [Cases: Privileged Communications and ConfidentialityC=' 16, 156.J confide, vb. confidence game. (1856) A means of obtaining money or property whereby a person intentionally misrepre­ sents facts to gain the victim's trust so that the victim will transfer money or property to the person. Also termed con game; con. Cf. BUNCO. [Cases: False Pre­ tenses 16.] confidence man. One who defrauds a victim by first gaining the victim's confidence and then, through trickery, obtaining money or property; a swindler.• The equivalent term confidence woman is exception­ ally rare, even though women are often involved in confidence games. Often shortened to con man. See CONFIDENCE GAME. Cf. BUNCO-STEERER. confidential, adj. 1. (Of information) meant to be kept secret . 2. (Of a rela­ tionship) characterized by trust and a willingness to confide in the other . confidential adoption. See closed adoption under ADOPTION.

confidential communication. See COMMUNICATION. confidentiality, n. (1834) 1. Secrecy; the state of having the dissemination of certain information restricted. 2. 1he relation between lawyer and client or guardian and ward, or between spouses, with regard to the trust that is placed in the one by the other. [Cases: Privileged Communications and Confidentiality 80, 156; Records confidentiality agreement. Trade secrets. A promise not to disclose trade secrets or other proprietary informa­ tion learned in the course of the parties' relationship. • Confidentiality agreements are often required as a

confidentiality clause

condition of employment. Also termed nondisclo­ sure agreement. confidentiality clause. See CLAL'SE. confidentiality statute. A law that seals adoption records and prevents an adopted chi ld from learning the identity ofhis or her biological parent and prevents the biologi­ cal parent from learning the identity of the adoptive parents. - Also termed sealed-record statute. confidential marriage. See MARRIAGE (1). confidential relationship. See RELATIONSHIP. confidential source. A person who provides information to a law-enforcement agency or to a journalist on the express or implied guarantee of anonymity. - Confi­ dentiality is protected both under the Federal Freedom oflnformation Act (for disclosures to law enforcement) and under the First Amendment (for disclosures to journalists). [Cases: Privileged Communications and Confidentiality (;:::>374,404; Records (;:::>60] confinee. A person held in confinement. confinement, n. (l6c) The act of imprisoning or restraining someone; the state of being imprisoned or restrained <solitary confinement>. See SOLITARY CON­ FINEMENT. - confine, vb. confirm, vb. 1. To give formal approval to . [Cases: Bankruptcy (;:::>3566.1, 3683.1, 37l5(1).] 2. To verify or corroborate . 3. To make firm or certain 209(3, 4).] 2. Hist. The services of a wife or daughter, the loss of which gives rise to a cause of action. - A husband could, for example, bring an action against a person who had injured his wife, "whereby he lost the help or compan­ ionship (of his wife)" (per quod consortium amisit). 3. A group of companies that join or associate in an enter­ prise <several high-tech businesses formed a consor­ tium to create a new supercomputer>. 4. Roman law. A community of undivided goods existing among coheirs after the death of the head of their family (paterfamil­ ias). PI. consortiums, consortia. consortium vitae (k,m-sor-shee-;Jm VI-tee). [Law Latin] Hist. Cohabitation; the agreement between two parties to live together. consortship (kon-sort-ship). Maritime law. An agree­ ment by which salvors agree to work together to salvage wrecks, the recovery being apportioned among the salvors. - Consortships reduce interference among competing salvors and help prevent collisions at sea between operators attempting to salvage the same wreck. conspicuous, adj. (1534) (Of a term or clause) clearly visible or obvious. - Whether a printed clause is con­ spicuous as a matter oflaw usu. depends on the size and style of the typeface. Under the UCC, a term or clause is conspiCUOUS if it is written in a way that a reasonable person against whom it is to operate ought to notice it. UCC § 1-201(10). See FINE PRINT. [Cases: Sales C=>267.] conspicuous place. (lSc) For purposes of posting notices, a location that is reasonably likely to be seen. conspiracy, n. (14c) An agreement by two or more persons to commit an unlawful act, coupled with an intent to achieve the agreement's objective, and (in most states) action or conduct that furthers the agreement; a combination for an unlawful purpose. 18 USCA § 371. _ Conspiracy is a separate offense from the crime that is the object ofthe conspiracy. A conspiracy ends when the unlawful act has been committed or (in some states) when the agreement has been abandoned. A conspiracy does not automatically end ifthe conspiracy's object is

SENTENCE.'

consolidating statute. See STATUTE. consolidation, n. (15c) 1. The act or process of uniting; the state of being united. 2. Legislation. '{he combina­ tion into a Single statutory measure of various legisla­ tive provisions that have previously been scattered in different statutes. 3. Civil procedure. The court-ordered unification oftwo or more actions, involving the same parties and issues, into a Single action resulting in a Single judgment or, sometimes, in separate judgments. Also termed consolidation of Fed. R. Civ. P. 42(a). actions. Cf. JOINDER; SEVERANCE (2). [Cases: Action (;=54-59; Federal Civil Procedure (;::;:::>S.] procedural consolidation. See JOINT ADMINISTRA­ TION.

substantive consolidation. Bankruptcy. The merger of two or more bankruptcy cases, usu. pending against the same debtor or related debtors, into one estate for purposes of distributing the assets, usu. resulting in the two estates sharing assets and liabilities, and in the extingUishment of duplicate claims and claims between the debtors. [Cases: Bankruptcy C:::>20S4.] 4. Corporations. The unification of two or more cor­ porations or other organizations by dissolving the existing ones and creating a Single new corporation or organization. Also termed (with respect to corpo­ rations) consolidation ofcorporations. Cf. MERGER (8). [Cases: Corporations C:::>5SLJ 5. Corporations. Archaic. A union of the stock, property, or franchises of two or more companies whereby the conduct of their affairs is permanently - or for a long period put under one management, whether the agreement between them is bv lease, sale, or other form of contract, and whether the effect is the dissolution of one, both, or neither of the companies. - consolidate, vb. consolidatory (bn-sol-;J-day-t;Jr-ee), adj. consolidation loan. See LOAN. consolidation of actions. See CONSOLIDATION (3). consolidation of corporations. See CONSOLIDATION (4).

consolidation of mortgages. Hist. '{he equitable right of a mortgagee who holds multiple mortgages on real property owned by the same person to refuse to release one mortgage unless all the mortgages are redeemed. [Cases: Mortgages C=>309(1).]

LOSS OF CONSORTIUM; CONJUGAL RIGHTS.

352

conspirator

defeated. See Model Penal Code § 5.03(7); United States v. Jiminez Recio, 537 U.S. 270, 123 S.Ct. 819 (2003). ­ Also termed criminal conspiracy. Cf. ATTEMPT (2); SOLICITATION (2). [Cases: Conspiracy ~ 1.1,23.1.] ­ conspiratorial, adj. "Conspiracie (conspiratio) though both in Latine and French it be used for an agreement of men, to doe any thing either good or bad: yet in our lawyers bookes, it is alway taken in the evill part." John Cowell, The Interpreter (1607). "[Conspiracy is an] elastic, sprawling and pervasive offense, ... so vague that it almost defies definition. Despite certain elementary and essential elements, it also, chameleon·like, takes on a special coloration from each of the many independent offenses on which it may be overlaid. It is always 'predominantly mental in composition' because it consists primarily of a meeting of minds and an intent." Krulewitch v. United States, 336 U.S. 440, 445-48, 69 S.Ct. 716, 719-20 (1949) (Jackson,J., concurring). "When two or more persons combine for the purpose of inflicting upon another person an injury which is unlawful in itself, or which is rendered unlawful by the mode in which it is inflicted, and in either case the other person suffers damage, they commit the tort of conspiracy." P.H. Winfield, A Textbook of the Law of Tort § 128, at 434 (5th ed. 1950).

bathtub conspiracy. See intra-enterprise conspiracy. chain conspiracy. (1959) A single conspiracy in which each person is responsible for a distinct act within the overall plan, such as an agreement to produce, import, and distribute narcotics in which each person performs only one function .• All participants are interested in the overall scheme and liable for all other participants' acts in furtherance of that scheme. [Cases: Conspiracy ~24(3).1 "In a 'chain' conspiracy, the court looks to whether the parties serve as links in a chain. In Blumenthal v. United States (1947), the Supreme Court found that the parties had agreed to sell liquor at prices exceeding the ceiling set by regulations of the Office of Price Administration. The Court found that the agreements were steps in the formulation of one larger general conspiracy. By reason of all having knowledge of the plan's general scope and common end, the disposing of whiskey, they could be drawn together in a single conspiracy." Ellen S. Podgor &Jerold H. Israel, White Collar Crime in a Nutshell 52 (2d ed. 1997).

circle conspiracy. See wheel conspiracy. civil conspiracy. (1901) An agreement between two or more persons to commit an unlawful act that causes damage to a person or property. [Cases: Conspiracy ~1.1.1

conspiracy in restraint of trade. See

RESTRAINT OF

TRADE.

conspiracy to infringe. Intellectual property. An agree­ ment by two or more persons to commit an act that would interfere with the exclusive rights of a patent, copyright, or trademark owner. • This action is commonly recognized in trademark law. 18 USCA § 371; 17 USCA § 506(a)(l). The Copyright Act does not provide a basis for alleging a conspiracy to infringe, but an action is recognized by some states. The Patent Act provides no basis for an action assert­ ing conspiracy to infringe because patent law covers

only acts, not threats of acts. [Cases: Conspiracy ~ 8.] conspiracy to monopolize. Antitrust. A conspiracy to take exclusive control of a commercial market .• Under § 2 of the Sherman Act, a conspiracy to monop­ olize exists ifthere is a conspiracy or concerted action directed at a substantial part of interstate commerce with the intent to acquire monopoly power. [Cases: Antitrust and Trade Regulation ~625.] hub-and-spoke conspiracy. See wheel conspiracy. intracorporate conspiracy. A conspiracy existing between a corporation and its own officers, agents, or employees .• To be prosecutable under federal law, the conspiracy must involve at least two persons (Le., not just the corporation and one person). 18 USCA § 371. A corporation cannot conspire with its employ­ ees, and its employees, acting in the scope of their employment, conspire among themselves. McAndrew v. Lockheed Martin Corp., 206 F.3d 1031, 1035 (11th Cir. 2000). [Cases: Conspiracy ~2, 40; Corpora­ tions ~496.1 intra-enterprise conspiracy. Antitrust. A conspiracy existing between two subsidiaries, divisions, or other parts of the same firm. - Also termed bathtub con­ spiracy. seditious conspiracy. (1893) A criminal conspiracy to forcibly (1) overthrow or destroy the U.S. government, (2) oppose its authority, (3) prevent the execution of its laws, or (4) seize or possess its property. 18 USCA § 2384. [Cases: Conspiracy~28(3).1 wheel conspiracy. (1959) A conspiracy in which a single member or group (the "hub") separately agrees with two or more other members or groups (the "spokes"). • The person or group at the hub is the only party liable for all the conspiracies. - Also termed circle conspiracy; hub-and-spoke conspiracy. [Cases: Con­ spiracy ~24(3).1 conspirator, n. (15c) A person who takes part in a con­ spiracy. unindicted conspirator. See unindicted coconspirator under COCONSPIRATOR. conspire, vb. To engage in conspiracy; to join in a con­ spiracy. constable (kon-st 1050.J constitutional homestead. See HOMESTEAD. constitutional immunity. See IMMUNITY (1). constitutionality, n. The quality or state of being con­ stitutional 181(2).] contemporaneous construction. An interpretation given at or near the time when a writing was prepared, usu. by one or more persons involved in its prepara­ tion. - Also termed practical construction; practical interpretation; contemporaneous and practical inter­ pretation. See CONTEMPORANEOUS-CONSTRUCTION DOCTRINE. [Cases: Contracts 170; Statutes 218,219(1).J liberal construction. (17c) An interpretation that applies to a writing in light of the situation presented and that tends to effectuate the spirit and purpose of the writing. Also termed eqUitable construction; loose construction; broad interpretation. Cf. strict con­ struction. [Cases: Contracts C::::-143.] "liberal construction. , . expands the meaning of the statute to embrace cases which are clearly within the spirit or reason of the law, or within the evil which it was designed to remedy, provided such an interpretation is not inconsistent with the language used. It resolves all reason­ able doubts in favor of the applicability of the statute to the particular case." William M. Lile et aI., Brief Making and the Use of Law Books 343 (3d ed. 1914),

literal construction. See strict construction. loose construction. See liberal construction.

practical construction. See contemporaneous construc­ tion. purposive construction (pdr-pd-siv). An interpreta­ tion that looks to the "evil" that the statute is trying to correct (i.e., the statute's purpose). Also termed teleological interpretation. See liberal construction. statutory construction. See STATUTORY CONSTRUC­ TION.

strict construction. (16c) 1. An interpretation that considers only the literal words of a writing. Also termed literal construction; literal interpretation. See STRICT CONSTRUCTIONISM. [Cases: Contracts 143.J 2~ A construction that considers words narrowly, usu. in their historical context. _ This type of con­ struction treats statutory and contractual words with highly restrictive readings. - Also termed strict inter­ pretation. 3. The philosophy underlying strict inter­ pretation of statutes. See strict constructionism under CONSTRUCTIONISM. [Cases: Statutes :::) 189,235.] "Strict construction of a statute is that which refuses to expand the law by implications or equitable consider­ ations, but confines its operation to cases which are clearly within the letter of the statute, as well as within its spirit or reason, not so as to defeat the manifest purpose of the Legislature, but so as to resolve all reasonable doubts against the applicability of the statute to the particular case." William M. Lile et aI., Brief Making and the Use of Law Books 343 (3d ed. 1914). "Strict interpretation is an equivocal expression, for it means either literal or narrow. When a provision is ambigu­ ous, one of its meanings may be wider than the other, and the strict (Le.. narrow) sense is not necessarily the strict (Le., literal) sense." John Salmond, Jurisprudence 171 n.(t) (Glanville L Williams ed., 10th ed. 1947).

construction bond. See BOND (3). construction contract. See CONTRACT. construction financing. See interim financing under FINANCING.

constructionism. A judicial approach to interpreting the text of statutes, regulations, constitutions, and the like. broad constructionism. See liberal constructionism. liberal constructionism. Broad interpretation of a text's language, including the use of related writings to clarify the meanings of the words, and possibly also a consideration of meaning in both contemporary and current lights. - Also termed broad construc­ tionism; loose constructionism. loose constructionism. See liberal constructionism. strict constructionism, n. (1892) The doctrinal view of judicial construction holding that judges should interpret a document or statute (esp. one involving penal sanctions) according to its literal terms, without looking to other sources to ascertain the meaning. ­ Also termed strict construction; literal canon; literal rule; textualism.[Cases: Contracts (;:::;; 143(1); Statutes 241(1).] - strict constructionist, n. constructionist. One who interprets a controlling text, such as a statute, constitution, or the like.

broad constructionist. See liberal constructionist. liberal constructionist. A decision-maker who derives the meaning of a text's language not only from the words but from reasonable inferences drawn from the words and from other sources, such as a statute's legislative history. - A liberal constructionist may also consider the reasonableness ofan interpretation under modern social mores. Also termed broad constructionist, loose constructionist. See liberal con­ structionism under CONSTRUCTIONISM. Cf. strict con­ structionist. loose constructionist. See liberal constructionist. strict constructionist. A decision-maker who derives a text's meaning narrowly, using tools such as original­ ism or textualism, and applies the text according to that meaning. See ORIGINALISM; strict construction­ ism under CONSTRUCTIONISM. Cf. liberal construc­ tionist. "Under the stimulus of political agitation in the early days of the republic over the powers conferred by the constitu· tion two rival schools of interpretations sprang up. The ones terming themselves strict constructionists held that the language of the constitution should be construed lit· erally and conservatively, while the other party held with equal fervor that the instrument should be construed lib­ erally and according to the spirit rather than the so that they were denominated loose constructionists. Jesse Franklin Brumbaugh, Legal Reasoning and Briefing 129(1917).

construction lien. See mechanic's lien under LIEN. construction loan. See building loan under LOAN. construction mortgage. See MORTGAGE. construction statute. See STATUTE. construction warranty. See WARRANTY (2). constructive, adj. (17c) Legally imputed; existing by virtue of legal fiction though not existing in fact. _ Courts usu. something a constructive effect for equitable reasons . foreign consulate. The consulate of a foreign country in the receiving state. 3. Government by consuls . - This sense of consulate is based on the original Roman meaning ("chief magistrate") not on the modern sense of an overseas representative of a country. consul general. See CONSUL. consultation, n. (lSc) 1. The act of asking the advice or opinion of someone (such as a lawyer). 2. A meeting in which parties consult or confer. 3. Int'llaw. The interac­ tive methods by which states seek to prevent or resolve consulting, consultative, disputes. - consult, vb. adj. consultative exam. As a foundation for an expert opinion, a check-up performed by a qualified medical professional to determine whether a person has a mental or physical disability, and, if so, the extent of the disability and expectations for improvement. consulting expert. See EXPERT. consumable, n. (1802) A thing (such as food) that cannot be used without changing or extinguishing its sub­ stance. Cf. NONCONSUMABLE. consumable, adj. consumer. (ISc) A person who buys goods or services for personal, family, or household use, with no intention of resale; a natural person who uses products for personal rather than business purposes. [Cases: Antitrust and Trade Regulation (;:::;> 141.] consumer boycott. See BOYCOTT. consumer confusion. Trademarks. The incorrect percep­ tion formed by a purchaser or user about a product's or service's manufacturer or origin. - The mistake usu. occurs when a product or service is marketed in a way that makes it appear to be affiliated with a well-known Also termed actual product, service, or provider. consumer confusion; user confusion; actual user confu­ sion. [Cases: Consumer Credit consumer-contemplation test. (1979) A method of imposing product liability on a manufacturer if the evidence shows that a product's danger is greater than that which a reasonable consumer would expect. ­ Also termed cOrlsumer-user-corltemplation test; con­

359

sumer-expectation test. Cf. RISK-UTILITY TEST. [Cases: Products Liability C=::' 119, 130.] consumer credit. See CREDIT (4). Consumer Credit Code. See UNIFORM CONSUMER CREDIT CODE.

Consumer Credit Protection Act. A federal statute that safeguards consumers in the use of credit by (1) requiring full disclosure of the terms of loan agree­ ments, including finance charges, (2) restricting the garnishment of wages, and (3) regulating the use of credit cards. 15 USCA §§ 1601-1693.• Many states have also adopted consumer-credit-protection acts. Abbr. CCPA. - Also termed Truth in Lending Act (abbr. TILA). See UNIFORM CONSUMER CREDIT CODE. [Cases: Consumer Credit C=::'30.] consumer-credit sale. See SALE. consumer-credit transaction. (1954) A transaction by which a person receives a loan to buy consumer goods or services.• Consumer-credit transactions are usu. subject to regulations enacted for the consumer's pro­ tection. [Cases: Consumer Credit C=::' 1, 3.] consumer debt. See DEBT. consumer-expectation test. See CONSUMER-CONTEM­ PLATION TEST.

consumer finance company. See FINANCE COMPANY. consumer goods. See GOODS. consumer-goods transaction. Secured transactions. A transaction in which (1) an individual incurs an obli­ gation primarily for a personal, family, or household purpose, and (2) a security interest in consumer goods secures the obligation. UCC § 9-102(a)(24). [Cases: Secured Transactions C=::' 15.] consumer law. (1966) The area of law dealing with consumer transactions - that is, a person's obtaining credit, goods, real property, or services for personal, family, or household purposes. - Also termed con­ sumer-transactions law. consumer lease. See LEASE. consumer loan. See LOAN. consumer price index. An index that tracks the price of goods and services purchased by the average consumer and that is published monthly by the U.S. Bureau of Labor Statistics .• The consumer price index is used to monitor periodic changes in the rate of inflation. Abbr. CPr. - Also termed cost-oj-living index. Cf. PRODUCER PRICE INDEX.

consumer product. (1949) An item of personal property that is distributed in commerce and is normally used for personal, family, or household purposes. 15 USCA § 2301(1). Consumer Product Safety Commission. An indepen­ dent federal regulatory commission that develops safety standards for consumer products and promotes research into the causes and prevention of product­ related deaths, illnesses, and injuries.• It was estab­

contango

lished in 1972. 15 USCA §§ 2051 et seq. - Abbr. CPsc. [Cases: Antitrust and Trade Regulation C=::'232.] consumer-protection law. (I954) A state or federal statute designed to protect consumers against unfair trade and credit practices involving consumer goods, as well as to protect consumers against faulty and dan­ gerous goods. [Cases: Antitrust and Trade Regulation C=::' 128; Consumer Credit C=::' 1.] consumer transaction. A bargain or deal in which a party acquires property or services primarily for a personal, family, or household purpose. consumer-transactions law. See CONSUMER LAW. consumer-user-contemplation test. See CONSUMER­ CONTEMPLATION TEST.

consummate (bn-sam-it or kahn-sa-mit), adj. Com­ pleted; fully accomplished .• Consummate was often used at common law to describe the status of a contract or an estate, such as the transformation of a husband's interest in his wife's inheritance from that of a tenant by the curtesy initiate to a tenant by curtesy consummate upon the wife's death (assuming that a child had been born during the marriage). See curtesy consummate under CURTESY. - consummation, n. consummate (kon-sd-mayt), vb. (16c) 1. To bring to com­ pletion; esp., to make (a marriage) complete by sexual intercourse. 2. To achieve; to fulfill. 3. To perfect; to carry to the highest degree. consummate dower. See DOWER. consummate lien. See LIEN. consummation of marriage. Family law. The first post­ marital act of sexual intercourse between a husband and wife .• Under canon law, a refusal to consummate the marriage may be grounds for an annulment or for divorce. But this is not so at common law or under modern state law. [Cases: Marriage C=::'33.] consumption. (14c) The act of destroying a thing by using it; the use of a thing in a way that exhausts it. consumption tax. See TAX. contagion. Int'//aw. A discredited doctrine holding that revolution or abhorrent practices in a neighboring state justify its invasion and the overthrow of its government on the grounds of national security.• The doctrine was employed by the Holy Alliance (1815-1848) in Europe to invade countries where revolutions were brewing. ­ Also termed doctrine ojcontagion. containing by estimate. Archaic. More or less.• This phrase usu. appears in deeds in which measurements are made by metes and bounds. It is redundant when the phrase "more or less" is used. containment. Int'llaw. A policy of restricting the ideo­ logical or territorial expansion of one's enemy.• This was the basic policy of the United States during the Cold War. contango (kdn-tang-goh), n. Securities. 1. A market in which long-term futures or options contracts sell at a premium over short-term contracts. - Also termed

contemn

normal market. 2. The premium so paid.• The premium paid for securities with longer maturities reflects the cost of holding the commodity for future delivery. contemn (k;m-tem), vb. To treat (as laws or court orders) with contemptuous disregard. See CONTEMPT. contemnor (k;m-tem-59; Internal Revenue C=:>4159(2).] contemplation of insolvency. See CONTEMPLATION OF BANKRUPTCY.

contemporanea expositio (bn-tem-p 106(1).] contestatio litis (kon-tes-tay-shee-oh h-tis). [Latin "con­ testation of suit"] See LITIS CONTESTATIO. contestation of suit (kon-tes-tay-sh;m). Eccles. law. The point in an action when the defendant answers the plaintiff's libel (Le., complaint); the plea and joinder of an issue'. - Also termed litis contestatio. contested divorce. See DIVORCE. contested hearing. See HEARING. context, n. (16c) 1. The surrounding text of a word or passage, used to determine the meaning of that word or passage . 2. Setting or environment . contextual, adj. context rule. Contracts. The principle that a court may look to extrinsic evidence to determine the intended meaning of a contract, even though the language itself is clear and unambiguous .• The court may consider (1) the subject matter and purpose of the contract, (2) the circumstances surrounding the making of the contract, (3) the subsequent conduct of the parties to the contract, (4) the reasonableness of the parties' respective interpretations, (5) statements made by the parties in preliminary negotiations, (6) usages of trade, and (7) the course of dealing between the parties. This rule does not make extrinsic evidence admissible for other purposes, such as adding to, modifying, or con­ tradicting the contract's terms, unless a party can show that the actual language resulted from fraud, accident, or mistake. Restatement (Second) of Contracts §§ 212, 214(c) (1981). [Cases: Contracts 143, 169, 170; Evidence (;::::c448.] contextual zoning. See ZONING. contiguity (kon-ti-gyoo-d-tee), n. The state or condition of being contiguous . contiguous (kdn-tig-yoo-. 3. Procedure. The adjournment or postponement of a trial or other proceeding to a future date <motion for continuance>. Cf. RECESS (1). [Cases: Federal Civil Procedure Pretrial Pro­ cedure (,.'='711.] - continue, vb. continuando (k;m-tin-yoo-an-doh). [Law Latin "by con­ tinuing"] Rist. An allegation charging that the trespass . or other wrongful act complained of constitutes a con­ tinuing tort against the plaintiff's property. "In trespasses of a permanent nature, where the injury is continually renewed, (as by spoiling or consuming the herbage with the defendant's cattle) the declaration may allege the injury to have been committed by continuation from one given day to another, (which is called laying the action with a continuando) and the plaintiff shall not be compelled to bring separate actions for every day's separate offence." 3 William Blackstone, Commentaries on the Laws of England 21 2 (1768).

continuation. Patents. A patent application that is based on the same disclosure and claiming the same inven­ tion as a rejected parent application but containing some change in the scope of the claims. _ A continu­ ation application maintains the original filing date for prior-art and interference purposes, as long as it is filed while the parent application is still pending, has at least one inventor in common with the parent application, and refers to the parent application. Also termed continuation application; continuation-in-whole appli­ cation; continuing application; f71e-wrapper continuing application. Cf. CONTINUATION-IN-PART; continued-

prosecution application under

PATENT APPLICATION;

[Cases: no.] Patents continuation agreement. (1942) Partnership. An agree­ ment among the partners that, in the event of dissolu­ tion, the business of the partnership can be continued without the necessity of liquidation. Cf. BUY-SELL AGREEMENT (1). [Cases: Partnership (;:=>277.] REQUEST FOR CONTINUED EXAMINATION.

"Normally, a continuation agreement would have some type of provision for purchaSing the interest of a deceased or expelled partner. However, such a provision is not neces· sary. Courts have enforced agreements that give the estate of the deceased partner nothing." Harold Gill Reuschlein & William A. Gregory, The Law of Agency and Partnership § 269. at 461 (2d ed. 1990).

continuation application. 1. See CONTINUATION. 2. See CONTINUATION-IN-PART.

continuation-application laches doctrine. Patents. An equitable defense to patent infringement, based on an assertion that the patentee deliberately delayed the issuance of the patent-in-suit by filing multiple con­ tinuing applications that added new patent claims to cover products marketed or processes used after the original application was filed. - Also termed prosecu­ tionlaches doctrine. See SUBMARINE PATENT. [Cases: Patents (::;:::::'289(2).] continuation-in-part. Patents. A patent application filed by the same applicant during the pendency of an earlier application, repeating a substantial part of the earlier application but adding to or subtracting from the claims. 35 USCA § 120.• This type of application contains new technical descriptions from the inventor or reflects improvements made since the parent appli­ cation was filed. A claim in a continuation-in-part application is entitled to the benefit of the parent appli­ cation's filing date if the claimed subject matter is the same, but the new matter takes the filing date of the continuation-in-part application. Continuation-in­ part applications are usu. filed to describe and claim later-discovered improvements to an invention, or to distinguish the invention from some prior-art refer­ ence. - Abbr. CIP. - Also termed continuation-in­ part application; continuation application; continuing application; file-wrapper continuation application. Cf. CONTINUATION. [Cases: Patents (;:=> llO.] continuation-in-part application, See CONTINUATION­ IN-PART.

continuation-in-whole application. See CONTINUATION (2).

continued bond. See annuity bond under BOND (3). continued-custody hearing. See shelter hearing under HEARING.

continued meeting. See MEETING. continued-prosecution application. See PATENT APPLI­ CATION.

continuing, adj. (14c) 1. Uninterrupted; persisting . 2. Not requiring renewal;

continuing annuity

enduring . continuing annuity. See survivorship annuity under ANNUITY.

continuing application. See PATENT APPLICATION. continuing breach. See BREACH OF CONTRACT. continuing consideration. See CONSIDERATION (1). continuing contract. See CONTRACT. continuing covenant. See COVENANT (1). continuing damages. See DAMAGES. continuing guaranty. See GUARANTY. continuing harm. See continuing injury under INJURY. continuing injury. See INJURY. continuingjudidal education. (1964) Continuing legal education for judges, usu. organized and sponsored by a governmentally subsidized body and often involv­ ing topics such as judicial writing, efficient decision­ making, caseload management, and the like. Abbr.

CJE. continuing jurisdiction. See JURISDICTION. continuing-jurisdiction doctrine. (1966) 1. The rule that a court retains power to enter and enforce a judgment over a party even though that party is no longer subject to a new action. lCases: Courts C~)30.12. Family law. The rule that once a court has acquired jurisdiction over a child-custody or support case, that court con­ tinues to have jurisdiction to modify orders, even if the child or a parent moves to another state. Child Custody C=>745; Child Support continuing legal education. (1948) 1. The process or system through which lawyers extend their learning beyond their law-school studies, usu. by attending seminars designed to sharpen lawyering skills or to provide updates on legal developments within partic­ ular practice areas .• In many jurisdictions, lawyers have annual or biennial requirements to devote a given number of hours (usu. 12-15) to continuing legal education. [Cases: Attorney and Client 2. The enhanced skills or knowledge derived from process. 3. The business field in which educational pro­ viders supply the demand for legal seminars, books, audiotapes, and videotapes designed to further the edu­ cation oflawyers. - Abbr. CLE. continuing nuisance. See NUISANCE. continuing objection. See OBJECTION. continuing offense. See OFFENSE (1). continuing part-time judge. See JUDGE. continuing threat of harm. A condition or situation that presents a high risk of injury at intervals or over an extended period, whether or not an injury has actually occurred .• The condition or situation can be a behavior that is subject to repetition, as with unfair­ competition practices or stalking, or an enduring state, such as environmental contamination. Also termed threat of continuing harm; continuing threat of injury;

364

threat ofcontinuing injury. Cf. continuing injury under INJURY.

continuing trespass. See TRESPASS. continuing-violation doctrine. Employment law. The judge-made rule that if an employer's discriminatory acts are of an ongoing nature, the statute oflimitations will be extended to allow the plaintiff to recover even when a claim based on those acts would otherwise be time-barred. [Cases: Limitation of Actions ~58(1).] continuing warranty. See promissory warranty under WARRANTY

(3).

continuing wrong. See WRONG. continuity (kon-ti-n[y]oo-. See Restatement (Second) of Contracts § 2 (1979). lCases: Contracts ~ 1.]

"Some sets of trade and professional forms are extremely one-sided, grossly favoring one interest group against others, and are commonly referred to as contracts of adheSion. From weakness in bargaining pOSition, igno' rance, or indifference, unfavored parties are willing to enter transactions controlled by these lopsided legal docu· ments." Quintin Johnstone & Dan Hopson Jr., Lawyers and Their Work 329-30 (1967).

"The promissory element present in every contract is stressed in a widely quoted definition: 'A contract is a promise, or set of promises, for breach of which the law gives a remedy, or the performance of which the law in some way recognizes as a duty: [1 Samuel Wil­ liston, Contracts § 1.1 (4th ed. 1990).] This, like similar definitions, is somewhat misleading. While it is true that a promise, express or implied, is a necessary element in every contract, frequently the promise is coupled with other elements such as physical acts, recitals of fact, and the immediate transfer of property interests. In ordinary usage the contract is not the promise alone, but the entire complex of these elements." John D. Calamari &Joseph M. Perillo, The Law of Contracts § 1.1, at 1-2 (4th ed. 1998).

"Dangers are Inherent in standardization ... for it affords a means by which one party may impose terms on another unwitting or even unwilling party. Several circumstances facilitate this impOSition. First, the party that proffers the form has had the advantage of time and expert advice in preparing it, almost inevitably producing a form slanted in its favor. Second, the other party is usually completely or at least relatively unfamiliar with the form and has scant opportunity to read it an opportunity often diminished by the use of fine print and convoluted clauses. Third, bar­ gaining over terms of the form may not be between equals or, as is more often the case, there may be no possibility of bargaining at all. The form may be used by an enterprise with such disproportionately strong economic power that it simply dictates the terms. Or the form may be a take·it· or·leave-it proposition, often called a contract of adhesion, under which the only alternative to complete adherence is outright rejection." E. Allan Farnsworth, Contracts § 4.26, at 296-97 (3d ed. 1999).

4. Broadly, any legal duty or set of duties not imposed by the law of tort; esp., a duty created by a decree or declaration of a court . [Cases: Contracts body of law dealing with agreements and exchange . 6. The terms of an agreement, or any particular term . 7. Loosely, a sale or conveyance. "Sometimes the word 'contract' is used to deSignate a transaction involving the exchange of goods or land for money. When money is exchanged for goods, this consti­ tutes a sale. When money is exchanged for land, this con­ stitutes a conveyance. Sales and conveyances may be the result of a previous contract but they are not the contracts in themselves. There is no undertaking or commitment to do or refrain from doing anything in the future. This indispensable element of contract is missing." John Edward Murray Jr., Mumwon Contracts § 2, at 5 (2d ed. 1974).

8. Loosely, an enforceable agreement between two or more parties to do or not to do a thing or set of things; a compact <when they finally agreed, they had a contract>. [Cases: Contracts C~) 1.] - contract, vb. ­ contractual, adj. absolute simulated contract. Civil law. A simulated contract that the parties intend to be wholly ineffec­ tive. La. Civ. Code art. 2026. See simulated contract. [Cases: Fraudulent Conveyances 24(1).] accessory contract. A contract entered into primarily for the purpose of carrying OLlt a principal contract. • The principal types are suretyship, indemnity, pledge, warranty, and ratification. Cf. principal contract.

aleatory contract (ay-Iee-d-tor-ee). [fro Latin aleator "gambler," fro alea "the throwing of dice"] (1891) A contract in which at least one party's performance depends on some uncertain event that is beyond the control of the parties involved .• Most insurance contracts and life annuities are of this type. - Also termed hazardous contract; wagering contract. Cf. certain contract. [Cases: Contracts (''=,218; Insur­ ance (;:-:;; 1713.] "A contract is aleatory when, because of the nature or according to the parties' intent, the performance of either party's obligation, or the extent of the performance, depends on an uncertain event." La. Civ. Code art. 1912.

alternative contract. (1871) A contract in which the performing party may elect to perform one of two or more specified acts to satisfy the obligation; a contract that provides more than one way for a party to complete performance, usu. permitting that party to choose the manner of performance. - Also termed alternative-methods-of-performance contract. [Cases: Contracts assessment contract. A contract in which the payment of a benefit is dependent on the collection of an assess­ ment levied on persons holding similar contracts. See assessment insurance under INSURANCE. [Cases: Insurance ~ 2080.] best-efforts contract. A contract in which a party undertakes to use best efforts to fulfill the promises made rather than to achieve a specific result; a

contract

:67

contract in which the adequacy of a party's perfor­ mance is measured by the party's ability to fulfill the specified obligations .• Although the obligor must use best efforts, the risk of failure lies with the obligee. To be enforceable, a best-efforts term must generally set some kind of goal or guideline against which the efforts may be measured. See BEST EFFORTS. [Cases: Contracts (;:::::c 189.] bilateral contract. (1866) A contract in which each party promises a performance, so that each party is an obligor on that party's own promise and an obligee on the other's promise; a contract in which the parties obligate t)1emselves reciprocally, so that the obliga­ tion of one party is correlative to the obligation of the other. Also termed mutual contract; recipro­ cal contract; (in civil law) synallagmatic contract. See COUNTERPROMISE. [Cases: Contracts 1,10(1).] "In a bilateral contract a promise, or set of promises on one side, is exchanged for a promise or a set of promises on the other side. In a unilateral contract, on the other hand, a promise on one side is exchanged for an act (or a for­ bearance) on the other side. Typical examples of bilateral contracts are contracts of sale, the buyer promising to pay the price and the seller promising to deliver the goods. A typical example of a unilateral contract is a promise of a reward for the finding of lost property followed by the actual finding of the property." P.s. Atiyah, An Introduction to the Law of Contract 32 (3d ed. 1981).

blanket contract. A contract covering a group of products, goods, or services for a fixed period.

bona fide contract (boh-n6; Sales Purchaser executory contract (eg-zek-p-tor-ee). (18c) 1. A contract that remains wholly unperformed or for which there remains something still to be done on both sides, often as a component of a larger trans­ action and sometimes memorialized by an informal letter agreement, by a memorandum, or by oral agree­ ment. [Cases: Contracts Sales (:::::> 197; Vendor and Purchaser (:::::>53.] "If a contract is wholly executory, and the legal duties of the parties are as yet unfulfilled, it can be discharged by mutual consent, the acquittance of each from the other's claims being the consideration for the promise of each to waive his own." William R. Anson, Principles of the Law of Contract 138 (Arthur L Corbin ed., 3d Am. ed. 1919).

2. Bankruptcy. A contract under which debtor and nondebtor each have unperformed obligations and the debtor, if it ceased further performance, would have no right to the other party's continued perfor­ mance. [Cases: Bankruptcy (:::::>3106.] express contract. (I7c) A contract whose terms the parties have explicitly set out. Also termed special Contracts (:::::> contract. Cf. implied contract. financial contract. Securities. An arrangement that (1) takes the form of an individually negotiated contract, agreement, or option to buy, sell, lend, swap,

or repurchase, or other similar individually negoti­ ated transaction commonly entered into by partici­ pants in the financial markets; (2) involves securities, commodities, currencies, interest or other rates, other measures of value, or any other financial or economic interest similar in purpose or function; and (3) is entered into in response to a request from a coun­ terparty for a quotation, or is otherwise entered into and structured to accommodate the objectives ofthe counterparty to such an arrangement .. fixed-price contract. A contract in which the buyer agrees to pay the seller a definite and predetermined price regardless of increases in the seller's cost or the buyer's ability to acqUire the same in the market at a lower price. [Cases: Sales formal contract. A contract made through the obser­ vance of certain prescribed formalities .• Among the formal contracts are the contract under seal, the recognizance, the negotiable instrument, and the letter of credit. Cf. informal contract; formal agree­ ment under AGREEMENT. [Cases: Contracts (:::::>30.] forward contract. An agreement to buy or sell a par­ ticular nonstandardized asset (usu. currencies) at a fixed price on a future date.• Unlike a futures contract, a forward contract is not traded on a formal exchange. Also termed forward agreement. Cf. FUTURES CONTRACT. [Cases: Commodity Futures Trading Regulation (:::::> 10.] futures contract. See FUTURES CONTRACT. gambling contract. An agreement to engage in a gamble; a contract in which two parties wager something, esp. money, for a chance to win a prize.• Where gambling is legal, contracts related to legal gambling activities are enforceable. - Also termed gaming contract. See wagering contract. [Cases: Gaming (;=:'10,25.] "Generally, under or apart from statutes so providing, or prohibiting such contracts or transactions, gambling contracts and transactions are illegal and void and cannot be enforced: and such contracts are void ab initio.... A gambling contract is invalid, no matter what outward form it may assume, and no ingenuity can make it legal." 38 C,J.S. Gaming § 26, at 138-39 (1996).

government contract. A contract to which a govern­ ment or government agency is a party, esp. for the purchase of goods and services. See procurement contract. gratuitous contract (gr 1, lS-20(2).] mixed contract. 1. Civil law. A contract in which the respective benefits conferred are unequal. 2. A contract for both the sale of goods and services.• The UCC may apply to a mixed contract if the pre­ dominant purpose is for the sale of goods. [Cases: Sales mutual contract. See bilateral contract. naked contract. See NUDUM PACTUM. nominate contract (nom-;l-nit). Civil law. A contract distingUished by a particular name, such as sale, insurance, or lease, the very use ofwhich determines some of the rules governing the contract and the con­ tractual rights of the parties, without the need for special stipulations. - The contracts are generally divided into four types: (1) real (arising from some­ thing done), (2) oral (arising from something said), (3) literal (arising from something written), and (4) consensual (arising from something agreed to). La. Civ. Code art. 1914. Cf. innominate contract. nude contract. See NUDDM PACTUM. onerous contract. Civil law. A contract in which each party is obligated to perform in exchange for each party's promise of performance. La. Civ. Code art. 1909. Cf. gratuitous contract. option contract. See OPTION (2). oral contract. See parol contract (1). output contract. (1904) A contract in which a seller promises to supply and a buyer to buy all the goods or services that a seller produces during a speci­ fied period and at a set price .• Ihe quantity term is measured by the seller's output. An output contract assures the seller of a market or outlet for the period ofthe contract. - Also termed entire-output contract. Cf. requirements contract. [Cases: Sales (~=)71(4).] parol contract (p;l-rohl or par-;ll). (lSc) 1. A contract or modification of a contract that is not in writing or is only partially in writing. Also termed oral contract; parol agreement; (loosely) verbal contract. [Cases: Contracts (;::::;:,31, 238(2).] 2. At common law, a contract not under seal, although it could be in writing. Also termed informal contract; simple contract. See PAROL-EVIDENCE RULE. pay-or-play contract. A contract in which one party agrees to perform and the other agrees to pay for the promised performance even if performance is never

contract demanded.• Pay-or-play contracts are usu. made in the entertainment industry. performance contract. 1. A contract that requires a party to act personally and does not allow substitu­ tion.• People who provide unique personal services often make performance contracts. 2. A contract that allows the contractor to choose the means to achieve the end result. • The product's specifications may be loose and allow the contractor latitude in deciding how to perform. Cf. build-to-print contract. personal contract. 1. A contract that binds a person but not that person's heirs or assignees because the contract requires a personal performance for which there is no adequate substitute. [Cases: Assignments ~ 19.J 2. A contract that binds a representative as an individual rather than binding the person or entity represented.• For instance, contracts made by a dece­ dent's personal representative traditionally bind the representative, not the estate, unless expressly agreed otherwise. [Cases: Executors and Administrators 95.3. A real-property-related contract that is treated as personal property, not as a substitute for the real property.• Examples include oil-and-gas royalty con­ tracts and property-insurance policies. pignorative contract (pig-nd-ray-tiv). Civil law. A contract in which the seller of real property, instead of relinquishing possession of the property that is theoretically sold, gives the buyer a lien; a contract of pledge, hypothecation, or mortgage of realty. [Cases: Mortgages ~3l.l precontract. (ISc) A contract that precludes a party from entering into a comparable agreement with someone else .• Historically, a precontract was usu. a promise to marry. It formed an impediment to marriage with any person other than the promisee. The legal impediment was extinguished and revived several times until it was finally abolished in 1752 by 26 Geo. 2, ch. 33, § 13. Cf. LETTER OF INTENT. [Cases: Contracts principal contract. A contract giving rise to an acces­ sory contract, as an agreement from which a secured obligation originates. Cf. accessory contract. private contract. An agreement between private parties affecting only private rights. procurement contract. A contract in which a govern­ ment receives goods or services.• A procurement contract, including the bidding process, is usu. subject to government regulation. Also termed government contract. See FEDERAL ACQUISITION REGULATION. [Cases: Public Contracts ~5.] public contract. A contract that, although it involves public funds, may be performed by private persons and may benefit them. [Cases: Public Contracts 1.] quasi-contract. See implied-in-law contract. real contract. Hist. A contract in which money or other property passes from one party to another; a contract

372

requiring something more than mere consent, such as the lending of money or handing over of a thing.• This term, derived from Roman law, referred to con­ tracts concerning both personal and real property. Real contracts included transactions in the form of commodatum, depositum, mutuum, and pignus. Cf. consensual contract. "The essence of ... the real contracts, was that, at the time the agreement was made, one party, by delivering some· thing belonging to him to the other party to the contract, imposed on that other an obligation to return the thing itself or, in the case of things intended to be consumed, an equivalent in kind. As the Roman lawyers expressed it, the contractual obligation was created by something being handed over ...." R.W. Leage, Roman Private Law292 (C.H. Ziegler ed., 2d ed. 1930). "The term 'real contract' is in common use in the Civil law, and though not commonly used by judges or writers in the common law, nevertheless describes certain obligations enforced in England from very early times. A real contract is an obligation arising from the possession or transfer of a res." Samuel Williston, A Treatise on the Law of Contracts § 8. at 19 (Walter H.E.Jaeger ed., 3d ed. 1957).

reciprocal contract. See bilateral contract. referral sales contract. See REFERRAL SALES

CON­

TRACT.

relative simulated contract. Civil law. A simulated contract that the parties intend to have some effects, but not necessarily those recited in the contract. La. Civ. Code art. 2027. See simulated contract. [Cases: 1,24(1).] Fraudulent Conveyances requirements contract. (1932) A contract in which a buyer promises to buy and a seller to supply all the goods or services that a buyer needs during a speci­ fied period.• The quantity term is measured by the buyer's requirements. A requirements contract assures the buyer ofa source for the period ofthe contract. Cf. output contract. [Cases: Sales C-:07l(4).] retail installment contract. A contract for the sale of goods under which the buyer makes periodic payments and the seller retains title to or a security interest in the goods. Also termed retail install­ ment contract and security agreement; conditional sales contract. Cf. chattel mortgage under MORTGAGE. [Cases: Consumer Credit C::'4.J satisfaction contract. A contract by which one party agrees to perform to the satisfaction of the other. ­ Also termed contract to satisfaction. [Cases: Contracts

(>

sealed contract. See contract under seal. self-determination contract. Under the Indian Self­ Determination and Education Assistance Act, an agreement under which the federal government provides funds to an Indian tribe and allows the tribe to plan and administer a program that would other­ wise be administered by the federal government. 25 USCA § 450bO). [Cases: Indians ~ 139.] service contract. A contract to perform a service; esp., a written agreement to provide maintenance or repairs

373

contract

on a consumer product for a specified term. [Cases: Contracts 190; Sales (:::::3.1.] severable contract. (1854) A contract that includes two or more promises each of which can be enforced sepa­ rately, so that failure to perform one of the promises does not necessarily put the promisor in breach of the entire contract. - Also termed divisible contract; several contract. See SEVERABILITY CLAUSE. Cf. joint contract. [Cases: Contracts Cr'-:;:) 137, 171.] "A severable contract ... is one the consideration of which

is, by its terms, susceptible of apportionment on either side, so as to correspond to the unascertained consider­ ation on the other side, as a contract to pay a person the worth of his services so long as he will do certain work: or to give a certain price for every bushel of so much corn as corresponds to a sample." Ivan Horniman, Wharton's Law Lexicon 215 (13th ed. 1925).

shipment contract. (1S93) A contract in which a seller bears the risk of damage to the items sold only until they are brought to the place of shipment. - If a contract for the sale of goods does not address the terms of delivery, it is presumed to be a shipment contract. UCC §§ 2-319, 2-504, 2-509. Cf. destination contract. [Cases: Sales (;::> 201(4).] "In the jargon of commercial lawyers, a contract that requires or authorizes the seller to send the goods to the buyer but does not require that he deliver them at any particular destination is called a 'shipment contract.' Generally, in shipment contracts, risk of loss passes to the buyer at the point of shipment, which is also the point of 'delivery,' while in 'destination contracts' (seller must deliver at a particular destination) risk passes upon seller's tender at destination." 1 James J. White & Robert S. Summers, Uniform Commercial Code § 3-5, at 128-29 (4th ed. 1995).

simple contract.!. See informal contract (1). 2. See parol contract (2). simulated contract. Civil law. A contract that, bv mutual agreement, does not express the true inten't of the parties. La. Civ. Code art. 2025. - A simulated contract is absolute when the parties intend that the contract will impose no obligations; no obligations are enforceable on the parties by such a contract. A simulated contract is relative ifthe parties intend it to impose obligations different from those recited in the contract; the intended obligations are enforceable if all relevant conditions are met. A simulated contract may affect the rights of third parties. See action en declaration de simulation under ACTION (4). - Also termed simulation. [Cases: Fraudulent Conveyances (::::: 1, 24(1).] special contract. 1. See contract under seal. 2. A contract with peculiar provisions that are not ordi­ narily found in contracts relating to the same subject matter. 3. See express contract. specialty contract. See contract under seal. standard-form contract. (1923) A usu. preprinted contract containing set clauses, used repeatedly by a business or within a particular industry with only slight additions or modifications to meet the specific situation. - Because standard-form contracts usu.

I

favor the drafting party, they can amount to adhesion contracts. Courts offset the drafting party's advantage by construing the contract in the light least favorable to the drafting party. - Also termed standardized contract. See adhesion contract. [Cases: Contracts (::::: 1.] "[U]niformity of terms in contracts typically recurring in a business enterprise is an important factor in the exact cal­ culation of risks. Risks that are difficult to calculate can be excluded altogether. Unforeseeable contingencies affect­ ing performance, such as strikes, fire, and transportation difficulties can be taken care of.... Standardized contracts have thus become an important means of excluding or controlling the ['irrational factors' that could persuade a court or jury to decide against a powerful defendant]." Friedrich Kessler, Contracts ofAdhesion - Some Thoughts About Freedom of Contract, 43 Colum. L. Rev. 629, 631-32

(1943).

statutory contract. A contract for which a statute pre­ scribes certain terms. - Statutes often govern the contracts made by public entities, but also some by private persons. For example, a statute may define and set minimum standards for terms in home-improve­ ment contracts. stock-option contract. A negotiable instrument that gives the holder the right to buy or sell - for a specified price within a fixed time limit a certain number of shares of the corporation's stock. See STOCK OPTION. [Cases: Corporations (::::: 116.] subcontract. (lSc) A secondary contract made by a party to the primary contract for carrying out the primary contract, or a part of it. subscription contract. See SUBSCRIPTION (3). substituted contract. A contract made between parties to an earlier contract so that the new one takes the place of and discharges the earlier one. - A substi­ tuted contract differs from a novation (as "novation" is traditionally defined) in that the latter requires the substitution for the original obligor of a third person not a party to the original agreement; when the obligee accepts the third party, the agreement is immediately discharged. In contrast to both substi­ tuted contract and novation, an executory accord does not immediately discharge an obligation; rather, the obligation is discharged on performance, often by a third person, rather than the original obligor. Cf. NOVATION; ACCORD (2). [Cases: Accord and Satisfac­ tion 1; ;-';ovation (~1, 4.] "[AJ substituted contract immediately discharges the prior claim which is merged into the new agreement. Conse­ quently, in the absence of an express agreement to the contrary, the original claim can no longer be enforced. In the event of a breach, any action would have to be brought on the substituted agreement. ... The concept of 'sub­ stituted contract' was created largely to circumvent the unsatisfactory rules that until recently governed executory accords. Now that these rules have been modernized, the next step should be the reabsorption of the substituted contract into the executory accord .... [TJhe untidy distinc­ tion between executory accords and substituted contracts should not be allowed to complicate litigation about routine claim settlements." John D. Calamari &Joseph M. Perillo, The Law of Contracts § 21.6, at 803 (4th ed. 1998).

contract

synallagmatic contract (sin-d-lag-mat-ik). [fro Greek synallagma "mutual agreement"] Civil law. A contract in which the parties obligate themselves reciprocally, so that the obligation of each party is correlative to the obligation of the other. La. Civ. Code arts. 1908, 1911. - A synallagmatic contract is characterized by cor­ relative obligations, whereas a commutative contract is characterized by correlative performances. The term synallagmatic contract is essentially the civil­ law equivalent ofthe common law's bilateral contract. Cf. commutative contract. tacit contract. A contract in which conduct takes the place of written or spoken words in the offer or accep­ tance (or both). [Cases: Contracts ~27.] take-it-or-Ieave-it contract. See adhesion contract. take-or-pay contract. A contract requiring the buyer to either purchase and receive a minimum amount of a product ("take") or pay for this minimum without taking immediate delivery ("pay"). - These contracts are often used in the energy and oil-and-gas busi­ nesses. [Cases: Electricity~11(3); GasC:'13(l).] task-order contract. A contract under which a vendor agrees to render services or deliver products as ordered from time to time .• Governments use this type of contract when the quantities that will be needed or the times for performance are uncertain. The contract may describe the services or products generally, but it must specify the period of perfor­ mance, the number of option periods, and the total minimum and maximum quantity of products or services that the government will acquire under the contract. When exercising its contractual rights, the government issues task orders to specify the product or service requirements, which may vary with each order. Sometimes shortened to task order. [Cases: United States third-party-beneficiary contract. A contract that directly benefits a third party and that gives the third party a right to sue any of the original contracting parties for breach. [Cases: Contracts (~187.] turnkey contract. See engineering, procurement, and construction contract. unconscionable contract. See unconscionable agree­ ment under AGREEMENT. unenforceable contract. A valid contract that, because of some technical defect, cannot be fully enforced; a contract that has some legal consequences but that may not be enforced in an action for damages or specific performance in the face of certain defenses, such as the statute of frauds. - Also termed agree­ ment ofimperfect obligation. Cf. illegal contract; void contract. [Cases: Contracts 138(1).] "The difference between what is voidable and what is unenforceable is mainly a difference between substance and procedure. A contract may be good, but incapable of proof owing to lapse of time, want of written form, or failure to affix a revenue stamp. Writing in the first cases, a stamp in the last, may satisfy the requirements of law and render the contract enforceable, but it is never at any

374 time in the power of either party to avoid the transaction. The contract is unimpeachable, only it cannot be proved in court." William R. Anson, Principles of the Law ofContract 19-20 (Arthur L. Corbin ed., 3d Am. ed. 1919). "Courts are ... fond of condemning the unenforceable agreement as 'illegal.' This is misleading insofar as it suggests that some penalty is necessarily imposed on one of the parties, apart from the court's refusal to enforce the agreement. In some cases, the conduct that renders the agreement unenforceable is also a crime, but this is not necessarily or even usually so. It is therefore preferable to attribute unenforceability to grounds of public policy rather than to 'illegality.'" E. Allan Farnsworth, Contracts § 5.1, at 323 (3d ed. 1999).

unilateral contract. (1855) A contract in which only one party makes a promise or undertakes a perfor­ mance; a contract in which no promisor receives a promise as consideration for the promise given. [Cases: Contracts (;:=> 1.] "[M]any unilateral contracts are in reality gratuitous promises enforced for good reason with no element of bargain." P.S. Atiyah, An Introduction to the Law of Contract 126 (3d ed. 1981). "If A says to B. 'If you walk across the Brooklyn Bridge I will pay you $100: A has made a promise but has not asked B for a return promise. A has asked B to perform, not a com­ mitment to perform. A has thus made an offer looking to a unilateral contract. B cannot accept this offer by promising to walk the bridge. B must accept, if at all, by performing the act. Because no return promise is requested, at no poi nt is B bound to perform. If B does perform, a contract involving two parties is created, but the contract is classi­ fied as unilateral because only one party is ever under an obligation." John D. Calamari &Joseph M. Perillo, The Law of Contracts § 2·10(a), at 64-65 (4th ed. 1998).

valid contract. A contract that is fully operative in accordance with the parties' intent. Also termed valid agreement. [Cases: Contracts variable annuity contract. Securities. An annuity whose payments vary according to how well the fund (usu. made up of common stocks) that backs it is per­ forming. SEC Rule O-l(e)(l) (17 CFR § 270.0-1(e)(1»). See variable annuity under ANNUITY. [Cases: Securi­ ties Regulation ~5.30.] verbal contract. See parol contract (1). voidable contract. (18c) A contract that can be affirmed or rejected at the option of one of the parties; a contract that is void as to the wrongdoer but not void as to the party wronged, unless that party elects to treat it as void. [Cases: Contracts ~98, 136.] "A voidable contract is a contract which, in its inception, is valid and capable of producing the results of a valid contract, but which may be 'avoided', I.e. rendered void at the option of one (or even, though rarely, of both) of the parties." P.S. Atiyah, An Introduction to the Law ofContract 37-38 (3d ed. 1981).

void contract. (I7c) 1. A contract that is of no legal effect, so that there is really no contract in existence at alL - A contract may be void because it is techni­ cally defective, contrary to public policy, or illegal. Cf. illegal contract; unenforceable contract. [Cases: Contracts ~98, 136.] "Strictly speaking, a 'void contract' is a contradiction in terms; for the words describe a state of things in which,

375

Contracts Clause despite the intention of the parties, no contract has been made, Yet the expression, however faulty, is a compendi­ ous way of putting a case in which there has been the outward semblance without the reality of contract," William R, Anson, Principles of the Law of Contract 18 (Arthur L. Corbin ed" 3d Am, ed, 1919), "A valid contract is, of course, simply a contract of full force and effect, not vitiated in any way. A so-called void contract, on the other hand, is really a contradiction in terms inasmuch as a contract has already been defined in terms applicable only to a valid contract. However, the term is convenient and is universally used, For purposes of exposition, it is convenient to treat void contracts as falling, broadly speaking, into main categories, On the one hand, are cases where one of the normal requirements for the crealion of a contract is absent, while, on the other hand, are cases where all the normal requirements are satisfied, but the contract is void because the law disap­ proves of its purpose or the terms by which it seeks to achieve that purpose. Typical examples of contracts which are void because one of the normal requirements is absent are contracts in which the acceptance of an offer has not been communicated or in which a promise is given gra­ tuitously. Typical examples of contracts which are void because of their terms or objects are wagering contracts, and contracts prejudicial to family relations." P.S_ Atiyah, An Introduction to the Law of Contract 36-37 (3d ed. 1981).

2. A contract that has been fully performed. - Also

termed discharged contract. "Not only is the term 'void contract' in itself technically inaccurate, but a contract is sometimes said to be void, not because it was destitute of legal effect from its com­ mencement, but because it has been fully performed, and so has ceased to have legal operation. It would be more proper to describe such a contract as 'discharged.''' William R. Anson, Principles of the Law of Contract 20 (Arthur l. Corbin ed., 3d Am_ ed. 1919),

3. Loosely, a voidable contract. "Again the word 'void' has been used, even by judges and the framers of statutes, where 'voidable' is meant. One illustration will suffice. By 17 Geo. III, c, SO, failure to pay certain duties at an auction is stated to make a bidding 'nul and void to all intents,' but this does not entitle a purchaser who has repented of his bargain to avoid the contract by his own wrong, that is by refusal to pay the statutory duty. The contract is voidable at the option of the party who has not broken the condition imposed by law_" William R. Anson, Principles of the Law of Contract 20-21 (Arthur l. Corbin ed" 3d Am, ed. 1919),

voluntary contract. See gratuitous contract (2). wagering contract. 1. A contract the performance of which depends on the happening of an uncertain event, made entirely for sport. See gambling contract. Cf. aleatory contract. [Cases: Gaming (;:J 1,5, 10.] "Although wagering and gaming agreements were gen­ erally enforceable under the English common law, they were condemned in most American states, in part because they were thought to encourage shiftlessness, poverty, and immorality, and in party because they were regarded as too frivolous to be worthy ofjudicial attention, Irwin v. Williar, 110 U,S. 499 (1884) ('In England it is held that the contracts, although wagers, were not void at common law, . ' . while generally, in this country, all wagering contracts are held to be illegal and void as against public policy:)" E. Allan Farnsworth, Contracts § 5,2 n.4, at 326-27 (3d ed, 1999).

2. A contract in which an uncertain event affects or results from a business transaction .• With this type

of wagering contract, a business person is protected from a trade risk. written contract. A contract whose terms have been reduced to writing. "Written contracts are also commonly signed, but a written contract may consist of an exchange of correspondence, of a letter written by the promisee and assented to by the promisor without signature, or even of a memorandum or printed document not signed by either party. Statutes relating to written contracts are often expressly limited to contracts signed by one or both parties. Whether such a limitation is to be implied when not explicit depends on the purpose and context." Restatement (Second) of Contracts § 95 cmt. c (1979) (citations omitted).

yellow-dog contract. See YELLOW-DOG CONTRACT. contract, freedom of. See FREEDOM OF CONTRACT. contract bond. See PERFORMANCE BOND. contract carrier. See private carrier under CARRIER. Contract Clause. See CONTRACTS CLAUSE. contract demurrage. See DEMURRAGE. contractee. Rare. A person with whom a contract is made. contract labor. See INDEPENDENT CONTRACTOR. contract loan. See add-on loan under LOAN. contract not to compete. See noncompetition covenant under COVENANT (1). contract not to sue. See covenant not to sue under COVENANT (1).

contract of affreightment (a-frayt-mant). Maritime law. An agreement for the carriage of goods by water.• A contract of affreightment may employ a bill oflading, a charterparty, or both to ship the goods. - Abbr. COA. Also termed contract ofcarriage. See CHAR­ TERPARTY. [Cases: Shipping (;:J 104.] contractor. (16c) 1. A party to a contract. 2. More specif., one who contracts to do work or prOVide supplies for another. competent contractor. A contractor who has the knowl­ edge, skill, experience, and available equipment to do the work that he or she is employed to do without creating an unreasonable risk of injury to others and who has the personal characteristics necessary to carry out the work. [Cases: Labor and Employment 175, contract system. Hist. The practice of leasing prisoners out to private individuals for the prisoners' labor. contract to pledge. See CONTRACT. contract to satisfaction. See satisfaction contract under CONTRACT.

contract to sell. See contract for sale (2) under CONTRACT.

contractual duty. See DUTY (1). contractual fault. See FAULT. contractual indemnity. See INDEMNITY. contractual obligation. See OBLIGATION. contract uberrimae fidei. See CONTRACT. contract under seal. See CONTRACT. contractus (kan-trak-tds). [Latin] Roman law. A contract; an agreement between two or more parties, usu. to create an actionable bond between them. See CON­ TRAHERE.

"The texts of the Roman law do not supply a definition of contract. The words contractus contrahere like 'contract' in English, are used in various senses, someti mes Wider, sometimes narrower. Labeo gives contractus the meaning of a reciprocal obligation, such as purchase and sale, hire, partnership. But when the Romans speak of obligation arising from contract, they mean obligations arising from convention or agreement. In Roman law it was far from being the case that all agreements which might be expected to produce a legal obligation did so." R.W. lee, The Elements of Roman Law 285 (4th ed, 1956).

contractus bonae fidei, vel stricti juris (kdn-trak-tds boh-nee £I-dee-I, vel strik-tI joor-I). [Latin] Roman law. Contracts of good faith or of strict law; a contract requiring that the parties perform their duties in good faith .• In an action brought on a contractus bonae fidei, the plaintiff had to assert that he had not acted in bad faith. All consensual contracts were considered contractus bonae fidei. The phrase was typically used when a remedy was being sought for a breach. Judges

i

enforced contracts of good faith (e.g., contracts of sale) according to the requirements of good faith and contracts of strict law (e.g., stipulations) according to their strict terms. Sometimes shortened to contrac­ tus bonae fidei. contract zoning. See ZONING. contradictio in adjecto. [Latin) A contradiction in terms; an oxymoron. contradictory judgment. See rUDGMENT. contradictory motion. See MOTION (1). contra executionem (kon-trd ek-si-kyoo-shee-oh-ndm). [Law Latin] Hist. Against execution.• The phrase referred to the presumption in favor of a defendant's objections to the manner of execution against the defendant's property. contrafactio (kon-trd-fak-shee-oh). [Law Latin] Hist. The act of counterfeiting.• The word appeared frequently in the phrase contrafactio sigilli regis ("counterfeiting the king's seal"). contra fidem tabularum nuptialium (kon-trd fI-d3-5.] fraudulent conversion. Conversion that is committed by the use of fraud, either in obtaining the property or in withholding it. [Cases: Trover and Conversion 7.] innocent conversion. See technical conversion. involuntary conversion. The loss or destruction of property through theft, casualty, or condemnation. negligent conversion. See technical conversion. technical conversion. The taking of another's personal property by one who acts in good faith and mistak­ enly believes that he or she is lawfully entitled to the property. Also termed innocent conversion; negli­ gent conversion. conversionary act. See ACT. conversion divorce. See DIVORCE. conversion premium. Securities. The surplus at which a security sells above its conversion price. conversion price. Securities.lhe contractually specified price per share at which a convertible security can be converted into shares of common stock. conversion ratio. 1. The number of common shares into which a convertible security may be converted. 2. The ratio of the face amount of the convertible security to the conversion price. conversion rule. See SPECIFIC-PURPOSE RULE. conversion security. See SECURITY. conversion statute. A law under which a state official or court oversees the sale or transfer of control of an organization in order to protect public assets. conversion value. A convertible security's value as common stock. • For example, a bond that can be converted into ten shares of stock worth $40 each has a conversion value of $400. See BOND CONVERSION. converter, n. One who wrongfully possesses or disposes of another's property; esp., one who engages in a series of acts ofwillful interference, without lawful justifica­ tion, with an item of property in a manner inconsis­ tent with another's right, whereby that other person is deprived of the use and possession of the property. [Cases: Trover and Conversion innocent converter. A person who takes another's chattel tortiously but in good faith and without knowledge that he or she has no entitlement to it. convertible arbitrage. See kind arbitrage under ARBI­ TRAGE.

convertible bond. See BOND (3). convertible collision insurance. See INSURANCE. convertible debenture. See DEBENTURE.

convertible debt. 1. See DEBT. 2. See convertible security under SECURITY. convertible divorce. See conversion divorce under DIVORCE.

convertible insurance. See INSURANCE. convertible security. See SECURITY. convertible stock. See convertible security under SECURITY.

convertible subordinated debenture. See DEBENTURE. convey, vb. (14c) To transfer or deliver (something, such as a right or property) to another, esp. by deed or other writing; esp., to perform an act that is intended to create one or more property interests, regardless of whether the act is actually effective to create those interests. conveyance (bn-vay-ants), n. (iSc) 1. The voluntary transfer of a right or of property. absolute conveyance. A conveyance in which a right or property is transferred to another free of condi­ tions or qualifications (Le., not as a security). Cf. con­ ditional conveyance. conditional conveyance. A conveyance that is based on the happening of an event, usu. payment for the property; a mortgage. Cf. absolute conveyance. derivative conveyance. See secondary conveyance. innocent conveyance. Hist. A leaseholder's conveyance of the leaseholder's property interest that is, some­ thing less than a fee simple.• The conveyance is of an equitable interest. [Cases: Landlord and Tenant (;=74.] mesne conveyance (meen). An intermediate convey­ ance; one occupying an intermediate position in the chain of title between the first grantee and the present holder. original conveyance. See primary conveyance. present conveyance. A conveyance made with the intent that it take effect at once rather than in the future. primary conveyance. A conveyance that creates an estate.• Examples of primary conveyances include feoffment, gift, grant, lease, exchange, and parti­ tion. - Also termed original conveyance. Cf. second­ ary conveyance. "Of conveyances by the common law, some may be called original, or primary conveyances; which are those by means whereof the benefit or estate is created or first arises: others are derivative or secondary; whereby the benefit or estate, originally created, is enlarged, restrained, transferred, or extinguished." 2 William Blackstone, Com­ mentaries on the Laws of England 309 (1766).

secondary conveyance. A conveyance that follows an earlier conveyance and that serves only to enlarge, confirm, alter, restrain, restore, or transfer the interest created by the primary conveyance. Also termed derivative conveyance; derivative deed. Cf. primary conveyance.

voluntary conveyance. A conveyance made without valuable consideration, such as a deed in favor of a relative. 2. The transfer of a property right that does not pass by delivery of a thing or merely by agreement. 3. The transfer of an interest in real property from one living person to another, by means of an instrument such as a deed. 4. The document (usu. a deed) by which such a transfer occurs. [Cases: Deeds (;=3.] 5. A means of transport; a vehicle. 6. Bankruptcy. A transfer of an interest in real or personal property, including an aSSignment, a release, a monetary payment, or the creation of a lien or encumbrance. - Also termed (in sense 6) bond for deed. See FRAUDULENT CONVEYANCE; PREFERENTIAL TRANSFER.

conveyancer (bn-vay-an-s 1.] "Copartner need not exist alongside partner. The joint relationship (i.e., that the existence of one partner implies the existence of one or more other partners) is clear to all native speakers of English .... Because copartner adds nothing to the language of the law, it should be avoided."' Bryan A. Garner, A Dictionary of Modem Legal Usage 223 (2d ed. 1995).

copartnership. See PARTNERSHIP. • The terms copart­ nership and partnership are equally old - each having first appeared in the 1570s.

coparty. (1906) A litigant or participant in a legal trans­ action who has a like status with another party; a party on the same side of a lawsuit. - Also termed joint party. See CODEFENDANT; COPLAINTIFF. copayment. A fixed amount that a patient pays to a healthcare provider according to the terms of the patient's health plan. - Often shortened to copay. [Cases: Insurance C=>2523.] copending, adj. Patents. (Of serial applications filed in the same patent prosecution) before the U.S. Patent and Trademark Office at or near the same time and concerning the same invention .• A continuation or divisional application that is copending with its parent application benefits from the parent's earlier filing date. [Cases: Patents C=> 1l0.] copending patent. See PATENT (3). copia libelli deliberanda. See DE COPIA LIBELLI DELIBER­ ANDA.

coplaintiff. (l8c) One of two or more plaintiffs in the same litigation. - Also termed joint plaintiff. Cf. CODE­ FENDANT.

coprincipal. (l7c) 1. One of two or more participants in a criminal offense who either perpetrate the crime or aid a person who does so. [Cases: Criminal LawC=>59.] 2. One of two or more persons who have appointed an agent whom they both have the right to control. copulative condition. See CONDITION (2). copy, n. (14c) 1. An imitation or reproduction of an original. • In the law of evidence, a copy is generally admissible to prove the contents of a writing. Fed. R. Evid. 1003. See BEST-EVIDENCE RULE. [Cases: Criminal Law C=>398(l); Evidence C=> 174.1.] archival copy. See ARCHIVAL COPY. attested copy. See certified copy. certified copy. (I8c) A duplicate of an original (usu. official) document, certified as an exact reproduction usu. by the officer responsible for issuing or keeping the original. - Also termed attested copy; exempli­ fied copy; verified copy. [Cases: Criminal Law C=>430; Evidence C=>338.] conformed copy. (1937) An exact copy of a document bearing written explanations of things that were not or could not be copied, such as a note on the document indicating that it was signed by a person whose signa­ ture appears on the original. examined copy. A copy (usu. of a record, public book, or register) that has been compared with the original or with an official record of an original. [Cases: Criminal Law C=>445; Evidence C=>367.] exemplified copy. See certified copy. true copy. A copy that, while not necessarily exact, is sufficiently close to the original that anyone can understand it. verified copy. See certified copy.

2. Copyright. The physical form in which a creative work is fixed and from which the work can be repro­ duced or perceived, with or without the aid of a special device. 17 USCA § 101. [Cases: Copyrights and Intellec­ tual Property C~ 1.J 3. Copyright. An expressive work that is substantially similar to a copyrighted work and not produced COincidentally and independently from the same source as the copyrighted work .• Proof of copying in an infringement action requires evidence of the defendant's access to the original work and substan­ tial Similarity of the defendant's work to the originaL See substantial similarity under SIMILARITY. [Cases: Copyrights and Intellectual Property C=>S3(l).] "The noun 'copy' ordinarily connotes a tangible object that is a reproduction of the original work; the courts have generally found no reason to depart from this usage in the law of copyright." 1 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 4.08[B], at 4·47 (Supp. 1995).

copycat drug. See generic drug under DRUG. copyhold. Hist. A base tenure requiring the tenant to provide the customary services of the manor, as reflected in the manor's court rolls.• Copyhold tenure descended from pure villeinage; over time, the customs of the manor, as reflected on the manor's rolls, dictated what services a lord could demand from a copyholder. This type of tenure was abolished by the Law of Property Act ofl922, which converted copyhold land into freehold or leasehold land. Also termed copyhold tenure; customary estate; customary freehold; tenancy by the verge; tenancy par la verge; tenancy by the rod. See base tenure under TENURE; VILLEINAGE. "Out of the tenure by Villeinage, copyhold tenure devel· oped.... By the end of the fifteenth century, to hold by copy of the court roll, to be a 'copyholder,' was a definite advantage, and, in most cases the holders had for many generations been personally free. The fusing of several different types of payment had also gone on, so that there was little difference between a holder in socage who had commuted the services for a sum of money and a copy· holder who had done the same, except the speCific dues of heriot and merchet. In Coke's time, a very large part of the land of England was still held by copyhold." Max Radin, Handbook of Anglo·American Legal History 371 (1936). "[L)and held on an unfree tenure could be transferred only by a surrender and admittance made in the lord's court. The transaction was recorded on the court rolls and the transferee given a copy of the entry to prove his title; he thus held 'by copy of the court roll,' and the tenure became known as 'copyhold.'" Robert E. Megarry & M.P. Thompson, A Manual of the Law of Real Property 22 (6th ed. 1993).

privileged copyhold. Hist. A copyhold subject only to the customs ofthe manor and not affected by the non­ conforming dictates of the current lord. copyholder. Hist. A tenant by copyhold tenure. Also termed tenant by the verge; tenant par la verge. "The lord still held a court, and that court kept records of all transactions affecting the lands. These records were called the rolls of the court. When, for instance, a tenant sold his interest to a third party, the circumstances of the sale would be recorded, and the buyer would receive a copy of the court rolls in so far as they affected his holding. Inasmuch as he held his estate by copy of court roll, he came to be called a copyholder." G.c. Cheshire, Modern Law of Real Property 24 (3d ed. 1933).

copyhold tenant. See customary tenant under TENANT. copyleft. Slang. A software license that allows users to modify or incorporate open-source code into larger programs on the condition that the software containing the source code is publicly distributed without restric­ tions. copylefted software. Slang. Free software whose distri­ bution terms forbid the addition of restrictions if the software is redistributed in its original or a modified form.• Not actually a legal term, this phrase is popu­ larly used as the antithesis ofcopyright by Internet free­ software promoters. See FREEWARE. copyright, n. (ISc) 1. The right to copy; specifically, a property right in an original work of authorship (including literary, musical, dramatic, choreographic, pictorial, graphic, sculptural, and architectural works; motion pictures and other audiovisual works; and sound recordings) fixed in any tangible medium of expression, giving the holder the exclusive right to reproduce, adapt, distribute, perform, and display the work. [Cases: Copyrights and Intellectual PropertyG= I.] 2. The body of law relating to such works. _ Copy­ right law is governed by the Copyright Act of 1976. 17 USCA §§ 101-1332. [Cases: Copyrights and Intellectual Property C~ 101.] - Abbr. c. - copyright, vb. - copy­ righted, adj. "[C)opyright is a monopoly of limited duration, created and wholly regulated by the legislature; and ... an author has, therefore, no other title to his published works than that given by statute." Ethan S. Drone, A Treatise on the Law of Property in Intellectual Productions 2 (1879). "The development of copyright law in England was shaped by the efforts of mercantile interests to obtain monopoly control of the publishing industry similar to those of the guilds that were instrumental in shaping patent and trademark law .... American copyright law came to dis· tinguish between the 'common law' right of an author to his unpublished creations, and the statutory copyright that might be secured upon publication. Until recently, therefore, an author had perpetual rights to his creation, which included the right to decide when, if, and how to publish the work, but that common law right terminated upon publication at which time statutory rights become the sole rights, if any, to which the author was entitled. This distinction was altered by the Copyright Act of 1976, which shifts the line of demarcation between common law and statutory copyright from the moment of publication to the moment of fixation of the work into tangible form." Arthur R. Miller & Michael H. DaviS, Intellectual Property in a Nutshell 280-82 (2d ed. 1990). "What is copyright? From copyright law's beginnings dose to three centuries ago, the term has meant just what it says: the right to make copies of a given work at first it meant simply written work - and to stop others from making copies without one's permission." Paul Goldstein, Copyright's Highway 3 (1994). "Before the 1976 Copyright Act swept virtually all copy· rightable subject matter within the exclusive domain of federal protection, the term 'copyright' implied a statutory right created by Congress in order to 'Promote the Progress of Science.' Our first copyright act, in 1790, protected only maps, charts, and books. Protection gradually was extended to musical compositions and graphic works. In the middle of the nineteenth century, photography was developed and then protected, followed at the end of the century by motion pictures (although they were protected

387

copyright notice as photographs). As the twentieth century comes to a close, digital technology and multimedia forms of authorship serio ously challenge the gradual, compartmentalized approach to granting new rights and new subject matter ...." 1 William F. Patry, Copyright Law and Practice 1 (1994).

ad interim copyright. Hist. A limited five-year U.S. copyright granted to the author of a foreign edition of an English-language book or periodical if, within six months after its publication abroad, the author deposited one complete copy of that edition in the U.S. Copyright Office and requested ad interim copyright protection .• An ad interim copyright was granted as an exception to the 1909 Copyright Act's manufacturing clause, which limited copyright pro­ tection for English-language books and periodicals to those printed in the U.S. If the copyright owner published the work in the U.S. during the period of ad interim protection and complied with the Act's manufacturing requirements, full copyright protec­ tion related back to the date of first publication. Oth­ erwise' the work went into the public domain at the end of five years. common-law copyright. A property right that arose when the work was created, rather than when it was published.• Under the Copyright Act of 1976, which took effect on January 1, 1978, common-law copy­ right was largely abolished for works created after the statute's effective date. But the statute retained the common law's recognition that the property right arose when the work was created rather than when it was published. The common-law copyright still applies in a few areas: notably, a common-law copy­ right received before January 1, 1978 remains entitled to protection. 17 USCA § 301. - Also termed right offirst publication. copyrightability test. A judicial test for determining whether a contributor to a joint work is an author for legal purposes, based on whether the contributor's effort is an original expression that could qualify for copyright protection on its own .• This test has been adopted by a majority of courts. Cf. DE MINIMIS TEST. [Cases: Copyrights and Intellectual Property 207.1.] Cordon rule. A rule of the U.S. Senate requiring any committee that is reporting a bill amending current law to show in its report what wording the bill would strike from or insert into the current statute.• The rule is named for Senator Guy Cordon (1890-1969) of Oregon, who proposed it. The analogous rule in the U.S. House of Representatives is the Ramseyer rule. See RAMSEYER RULE. core earnings. See operating earnings under EARNINGS. core proceeding. Bankruptcy. 1. A proceeding involv­ ing claims that substantially affect the debtor-creditor relationship, such as an action to recover a preferential transfer. • In such a proceeding, the bankruptcy court, as opposed to the district court, conducts the trial or hearing and enters a final judgment. Cf. RELATED PROCEEDING. 2. In federal courts, an action involv­ ing subject matter that is clearly within the confines of federal bankruptcy law and the management of the bankrupt's estate.• A federal bankruptcy court may also hear noncore matters that have an independent basis for subject-matter jurisdiction, such as a federal question. For a nonexclusive list of core proceedings, see 28 USCA § 157(b)(2). [Cases: Bankruptcy C=>2043­ 2063.] core rights. 1. Human rights that are generally recog­ nized and accepted throughout the world .• These rights include freedom from extrajudicial execution, torture, and arbitrary arrest and detention. Core rights are embodied in many human rights conventions, includ­ ing the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights. 2. Fundamental rights claimed within a social, cultural, or other context. • These are not universally recognized rights. For example, the ability to vote may be a fundamental right of citizens in one country but only a privilege limited to selected people in another. corespondent. (1857) 1. A coparty who responds to a petition, such as a petition for a writ of certiorari. 2. In some states, a coparty who responds to an appeal. 3. Family law. In a divorce suit based on adultery, the person with whom the spouse is accused of having committed adultery. See RESPONDENT. [Cases: Divorce C=>26,72.]

389 core work product. See opinion work product under WORK PRODUCT.

corium forisfacere (kor-ee-am for-is-fay-sa-ree). [Law Latin "to forfeit skin"] Hist. To whip (a person, esp. a servant) as punishment. - Also termed corium perdere. corium redimere (kor-ee-am ri-dim-ar-ee). [Latin] Hist. To redeem one's skin .• This referred to a person who paid restitution for an offense. cornage (kor-nij). [fr. Anglo-French corne "horn"] Hist. 1. A type of grand-sergeanty military tenure in which the tenant was bound to blow a horn to alert others whenever an enemy approached. 2. A form of tenure entitling a landowner to rent based on the number of horned cattle owned by the tenant.• Cornage may have developed into a type of serjeanty or knight­ service tenure that obligated the tenant to blow a horn to warn of invaders, esp. along the border with Scotland. Also termed (in senses 1 & 2) horn tenure. See KNIGHT-SERVICE; SERJEANTY. 3. A tribute of corn due only on special occasions, as distinguished from a regularly provided service .• This term has often been spelled coraage or coraagium, stemming perhaps from a spelling error in the 1569 edition of Bracton's De Legibus et Consuetudinibus Angliae. Cornelian law. See LEX CORNELIA. corner, n. 1. The common end of two survey lines; an angle made by two boundary lines. [Cases: Boundar­ iesG"-::'7.] existent corner. A corner whose location can be verified by an original landmark, a surveyor's field notes, or other reliable evidence. lost corner. A point in a land description, such as a landmark or natural object, whose position cannot be reasonably determined from traces of the original marks or other acceptable evidence. _ The location can be determi ned hy reference to one or more inde­ pendent points remaining in the deSCription. obliterated corner. A corner that can be located only with evidence other than that put in place by the original surveyor. 2. The acquisition of control over all or a dominant quantity of a commodity with the purpose of artifi­ cially enhancing the price, carried out by purchases and sales of the commodity - and of options and futures ­ in a way that depresses the market price so that the participants are enabled to purchase the commodity at satisfactory prices and withhold it from the market for a time, thereby inflating its price. _ A corner accom­ plished by confederation, with the purpose of raising or depressing prices and operating on the market, is a criminal conspiracy if the means are unlawful. corner influence. Property. In an appraisal, the addi­ tional value of a corner lot, esp. one zoned for commer­ cial purposes, attributable to factors such as increased light and air, easier ingress and egress, greater acces­

coronatore eligendo

sibility by pedestrian and automotive traffic, and more space for displays and advertisements. cornering the market. The act or process of acquiring ownership or control ofa large portion ofthe available supply ofa commodity or security, permitting manipu­ lation of the commodity's or security's price. Corn Products doctrine. Tax. The principle that a capital asset should be narrowly defined to exclude inventory­ related property that is integrally tied to the day-to-day operations of a business. Corn Prods. Refining Co. v. c.I.R., 350 U.S. 46, 76 S.Ct. 20 (1955). [Cases: Internal Revenue 3230.1.J corody (kor- or kahr-a-dee). Hist. An allowance of money, accommodation, food, or clothing given by a religious house to any person who Signed over personal or real property or both in exchange or to a royal servant at the Crown's request .• The amount of property required from a person who purchased a corady depended on the person's age and remaining life expectancy. The Crown was entitled to a corody for a retired royal servant only from houses that the Crown had founded. Theoreticallv, the cost of a retired royal servant's care would come from the royal purse. But since the royal purse did not always open, royal servants were not always accepted as corodiaries. Cf. LIFE-CARE CONTRACT. - Also spelled carrody. ­ corodiary (kd-roh-dee-air-ee), corrodiary, n. "Corrody is a partition for one's sustenance. Be it bread, ale, herring, a yearly robe, or sum of money for the robe. 50 of a chamber, and stable for my horses, when the same is coupled with other things ...." 5ir Henry Finch, Law, or a Discourse Thereof 162 (1759).

corollary (kor- or kahr-a-Ier-ee), n. (14c) A proposition that follows from a proven proposition with little or no additional proof; something that naturally follows. corona (kCl-roh-na). [Latin] Hist. The Crown .• This term formerly appeared in criminal pleadings, e.g., placita coronae ("pleas of the Crown"). coronation case. Hist. Any of the many lawsuits for breach of contract resulting from the postponement ofthe coronation ofEdward VII because of his illness. • In one case, for example, the defendant had agreed to hire a ship for watching the naval review by King Edward VII and for a day's cruise around the fleet. The court held that the contract was not frustrated by the cancellation ofthe naval review - the day's cruise around the fleet was still possible, and indeed, the ship could have been used for many other purposes. coronator (kor- or kahr-Cl-nay-tar). [fro Latin corona "crown"] A coroner. See CORONER (2). "The formal title of custos (or occasionally conservator) placitorum corone continued to be used throughout the Middle Ages, but the more convenient shorter forms wronarius, which was confined to a short period around 1200, and CORONATOR rapidly gained greater currency. The English form was 'coroner' or 'crowner.'" R.F. Hunnisett, The Medieval Coroner 1 n.! (1961).

coronatore eligendo. See DE CORO:>lATORE

ELIGENDO.

coronatore exonerando

coronatore exonerando. See

390 DE CORONATORE EXONE­

RANDO.

coroner (kor- or kahr-3728.] common-law corporation. See corporation by prescrip­ tion. conglomerate corporation. See CONGLOMERATE. controlled corporation. 1. A corporation in which the majority of the stock is held by one individual or firm. [Cases: Internal Revenue C=>3643.]2. A corpo­ ration in which a substantial amount (but less than a majority) of the stock is held by one individual or firm. _ Some states presume control with as little as 10%. [Cases: Corporations C=> 1.4, 1.5.] controlled foreign corporation. Tax. A foreign corpo­ ration in which more than 50% of the stock is owned by U.S. citizens who each own 10% or more of the voting stock. - These shareholders (known as u.s. shareholders) are required to report their pro rata share of certain passive income of the corporation. IRC (26 USCA) §§ 951-964. - Abbr. CFC. [Cases: Internal Revenue C=>4119.] cooperative corporation. An entity that has a corporate existence, but is primarily organized for the purpose of providing services and profits to its members and not for corporate profit. - The most common kind of cooperative corporation is formed to purchase real property, such as an apartment building, so that its shareholders may lease the apartments. See COOPERA­ TIVE (1). [Cases: Landlord and Tenant G=>350, 352.] corporation aggregate. 1. See CORPORATION. 2. Hist. A corporation made up of a number of individuals. Cf. corporation sole. "The first division of corporations is into aggregate and sole. Corporations aggregate consist of many persons united together into one society, and are kept up by a per­ petual succession of members, so as to continue forever: of which kind are the mayor and commonalty of a city, the head and fellows of a college, the dean and chapter of a cathedral church." 1 William Blackstone, Commentaries on the Laws of Eng/and 457 (1765). "The corporation aggregate is the typical corporation, which, at any given time, normally contains a number of individuals as members. This number may be great or small, varying from the hundreds of thousands of

corporation burgesses of a large borough to the two members of a private joint-stock company. It is even said that a corpora­ tion aggregate would not necessarily cease to exist if all its members died, leaving no successors; and this is, probably, sound doctrine." EdwardJenks, The Book ofEnglish Law 118 (P.B. Fairest ed., 6th ed. 1967).

corporation by estoppel. A business that is deemed, by operation of law, to be a corporation because a third party dealt with the business as if it were a corpora­ tion, thus preventing the third party from holding a shareholder or officer of the corporation individually liable. See ESTOPPEL. [Cases: Corporations (:::::;34.] corpora.tion by prescription. A corporation that, though lacking a charter, has acquired its corporate status through a long period of operating as a corpo­ ration.• Such an entity may engage in any enterprises that are not manifestly inconsistent with the purposes for which it is assllmed to have been created. - Also termed common-law corporation. [Cases: Corpora­ tions corporation de facto. See de facto corporation. corporation de jure. See de jure corporation. corporation for profit. See for-profit corporation. corporation qualified to do business. See admitted corporation. corporation sole. A series of sllccessive persons holding an office; a continuous legal personality that is attrib­ uted to successive holders of certain monarchical or ecclesiastical positions, such as kings, bishops, rectors, vicars, and the like.• This continuous personality is viewed, by legal fiction, as having the qualities of a corporation. Cf. corporation aggregate (2). "It would have been quite possible to explain in the same way the devolution of the lands of the Crown, or of a bishopriC, or of a rectory, from the sovereign, bishop. or rector, to his successor; but English law has preferred to introduce for this purpose the fiction, peculiar to itself, of a 'corporation sole.'" Thomas E. Holland, The Elements of jurisprudence 350-51 (13th ed. 1924). "But English Law knows another kind of corporation, the 'corporation sole', in which the group consists, not of a number of contemporary members, but of a succession of single members, of whom only one exists at any given time. This kind of corporation has been described by eminent legal writers as a 'freak'; but it is a freak which undoubt· edly has a legal existence. It has been said that the Crown is the only common law lay corporation sole; though the Master of Trinity College, Cambridge, has been claimed as another example, and statutory examples, such as the Public Trustee and the Treasury Solicitor, are conspicuous. But the examples of ecclesiastical corporations sole are numerous. Every diocesan bishop. every rector of a parish, is a corporation sole, and can acquire and hold land (and now also personal property) even during the vacancy of the see or living, for the benefit of his successors, and can bind his successors by his lawful conveyances and con· tracts. But, obviously, the distinction between the bishop or rector, in his personal and in his corporate character, is even harder to grasp than that between the members of a corporation aggregate and the corporation itself .. " EdwardJenks, The Book of English Law 118-19 (P.B. Fairest ed., 6th ed. 1967).

dead corporation. See dissolved corporation.

392 de facto corporation (di fak-toh). An incompletely formed corporation whose existence operates as a defense to personal liability of the directors, officers, and shareholders who in good faith thought they were operating the business as a duly formed corpo­ ration. Also termed corporation de facto. [Cases: Corporations (:::::;28.] de jure corporation (di juur-ee). A corporation formed in accordance with all applicable laws and recognized as a corporation for liability purposes. - Also termed corporation de jure. [Cases: Corporations dissolved corporation. A corporation whose charter has expired or been revoked, relinquished, or volun­ tarily terminated. Also termed dead corporation. Corporations C~617-619.1 domestic corporation. (1819) 1. A corporation that is organized and chartered under the laws of a state. ­ The corporation is considered domestic by the char­ tering state. Cf. foreign corporation. 2. Tax. A corpo­ ration created or organized in the United States or under federal or state law. IRC (26 USCA) § (4). [Cases: Internal Revenue C=>3623; Taxation 3485.]

dormant corporation. 1. An inactive corporation; a legal corporation that is presently not operating. 2. A corporation whose authority to do business has been revoked or suspended either by operation of law (as by failure to pay franchise taxes) or by an act of the government official responsible for the corporation's authority. dummy corporation. (1899) A corporation whose only function is to hide the principal's identity and to protect the principal from liability. ecclesiastical corporation (i-klee-zee-as-t26; Homicide (::::>511.] "[Tlhe definition of 'corpus delicti' often becomes impor­ tant. (a) Essentially it signifies merely the fact of the specific loss or injury sustained, e.g., death of a victim or burning of a house. (b) To this is added also, by most courts, the criminal agency of some person (i.e., not mere accident). (c) A few courts also include evidence of the accused's identity with the deed; but this is absurd, for it virtually signifies making 'corpus delicti' synonymous with the whole charge. - Many courts treat this rule with a pedantic and unpractical strictness." John H. Wigmore, A Students' Textbook of the Law of Evidence 310 (1935). "One of the important rules of evidence in criminal cases is that which requires proof of the corpus delicti. Literally defined this term means 'the body of the offense,' or 'the substance of the crime.' In popular language it is used to describe the visible evidence of the crime, such as the dead body of a murdered person. Properly used, however, it is applicable to any crime and relates particularly to the act element of criminality; that is, that a certain prohibited act has been committed or result accomplished and that it was committed or accomplished by a criminal human agency." Justin Miller, "The Criminal Act," in Legal Essays in Tribute to Orrin Kip McMurray at 469, 478 (1935). "The phrase 'corpus delicti' does not mean dead body, but body of the crime, and every offense has its corpus delicti. Its practical importance, however, has been very largely limited to the homicide cases. It concerns the usability in a criminal case of a confession made by the defendant outside of court." Rollin M. Perkins & Ronald N. Boyce, Criminal Law 140 (3d ed. 1982).

2. Loosely, the material substance on which a crime has been committed; the physical evidence of a crime, such as the corpse of a murdered person.• Despite the common misunderstanding, a victim's body could be evidence of a homicide but the prosecutor does not have to locate or present the body to meet the corpus delicti requirement. corpus delicti rule. (1926) Criminal law. The doctrine that prohibits a prosecutor from proving the corpus delicti based solely on a defendant's extrajudicial state­ ments.• The prosecution must establish the corpus delicti with corroborating evidence to secure a convic­ tion. [Cases: Criminal Law (::::>412(6),517.3.] corpus juris (kor-p;Js joor-is). [Latin "body of law"] (1832) The law as the sum or collection oflaws . - Abbr. C,J. corpus juris Angliae (kor-p;Js joor-is ang-glee-ee). The entire body of English law, comprising the common law, statutory law, equity, and special law in its various forms. Corpus Juris Canonici (kor-p;Js joor-is b-nOn-;J-sI). [Latin] Hist. The body of the canon law, compiled from the decrees and canons of the Roman Catholic Church. • The Corpus Juris Canonici emerged during the 12th century, beginning with the publication of Gratian's Decretum (c. 1140). In addition to the Decretum, it includes Raymond of Pefiaforte's Liber Extra (1234), the Liber Sextus of Pope Boniface VIII (1298), the Cle­ mentines of Pope Clement V (1313), the Extravagantes Joannis of Pope John XXII (1325), and Extravagantes Communes published by Pope John's successors (1499­ 1502). In 1582, the entire collection was edited by a commission of church dignitaries and officially named the Corpus Juris Canonici. It remained the Catholic Church's primary body oflaw until the promulgation of the Code of Canon Law in 1917, now replaced by that of 1983. "After Gratian, later papal enactments, called 'decretals,' were collected and issued by the authority of various popes .... A revised edition of such 'decretals' ... was presented to Pope Gregory IX in 1234 - only a short while, therefore, after the final form of Magna Carta in 1225 ­ and issued by him with statutory force. The revision freely made changes in the text of the enactments and the resulting compilation in four 'books' was regarded as a 'Code,' corresponding to the 'Code' of Justinian, just as the Decretum of Gratian corresponded to the Digest.... All these compilations and collections were, from the six­ teenth century on, known as the Corpus Juris Canonici, the 'Body of Canon Law,' and formed the basis of the law administered in the Church courts." Max Radin, Handbook of Anglo-American Legal History 33-34 (1936).

Corpus Juris Civilis (kor-p;Js joor-is s;J-vil-is or s;J-vI-lis). The body of the civil law, compiled and codified under the direction of the Roman emperor Justinian in A.D. 528-556.• The collection includes four works - the Institutes, the Digest (or Pandects), the Code, and the Novels. The title Corpus Juris Civilis was not original, or even early, but was modeled on the Corpus Juris Canonici and given in the 16th century and later to editions of the texts of the four component parts of the Roman law. See ROMAN LAW. Cf. JUSTINIAN CODE.

corpus possess;onis

corpus possession is (kor-pds pd-zes[h]-ee-oh-nis)_ [Latin] Roman law_ The physical aspect of possession_ See animus possidendi under ANIMUS_ corpus pro corpore (kor-pds proh kor-pd-ree). [Latin] Hist. Body for body. _ This phrase commonly expressed the liability of a surety in a civil action (a mainpernor). See MAINPRISE. correal (kor-ee-dl or kd-ree-dl), adj. [fr. Latin correus "codebtor"] Roman law. Of or relating to liability that is joint and several. _ A correal debtor who paid an entire obligation had no right ofaction against a codebtor. See CORREUS; SOLIDARY. "If Aulus, having first obtained from Titius the promise of a hundred aurei, turned to Seius and said, Spondesne mihi, Sei, cosdem centum aUl"eos dal"e? (Do you engage, Seius, to give me the same one hundred aurei?), then if Seius answered, Spondeo, there was one single obligation for a hundred aurei, binding in full on each of the two debtors. Aulus could demand a hundred from Titius or a hundred from Seius, and in case of non-payment could sue either one, taking his choice between them, for the full amount. If either paid the hundred, whether willingly or by compulsion, the other was released: for there was but one debt, and that was now discharged. This kind of obligation is called correal obligation (correal, from con, and I"eus or I"ei, connected parties, parties associated in a common debt or credit)." James Hadley, Introduction to Roman Law 258 (1881).

correality (kor-ee-al-;Hee), n. The quality or state of being correal; the relationship between parties to an obligation that terminates when an entire payment is made by one of two or more debtors to a creditor, or a payment is made by a debtor to one of two or more creditors, "But there were circumstances. apart from indivisibility, in which each of the parties might be liable in full. .. Several were liable or entitled. each in solidum, under an obliga­ tion, but the thing was due only once. Satisfaction by, or to, one of those liable, or entitled. ended the whole obligation, and action by one of the joint creditors, or against one of the debtors, not only 'novated' the obligation between the actual parties. but destroyed it altogether as against the others. This relation is commonly called correality (correi debendi vel credendi)," w.w. Buckland, A Manual of Roman Private Law 349-50 (2d ed. 1939).

correal obligation. See OBLIGATION.

corrected policy. See INSURANCE POLICY.

correction, n. (14c) 1. Generally, the act or an instance

of making right what is wrong <mark your correc­ tions in red ink>. 2. A change in business activity or market price follOWing and counteracting an increase or decrease in the activity or price . See DOWN REVERSAL. 3. (usu. pI.) The pun­ ishment and treatment of a criminal offender through a program of imprisonment, parole, and probation . - correct, vb. cor­ rective (for senses 1 & 2), correctional (for sense 3), adj. correction, house of. See house of correction under HOUSE. correctional institution. See PRISON.

396

correctional system. A network of governmental agencies that administer a jurisdiction's prisons and parole system. corrective advertising. Advertising that informs con­ sumers that earlier advertisements contained a decep­ tive claim, and that provides consumers with corrected information. - This type of advertising may be ordered by the Federal Trade Commission. corrector of the staple. Hist. A clerk who records mer­ chants' transactions at a staple. See STAPLE (2). correi credendi (kor-ee-I kri-den-dI). [Latin] Roman law. Joint creditors. - Also termed correi stipulandi (stip­ ya-Ian-dr). See STIPULATIO. "The mode for stipu/atio is stated in the Institutes. Of several stipulators (correi credendi, active correality) each asks the debtor and he answers once for all. Of several promisors (correi debendi, passive correality) the creditor asks each and they answer together." w.w. Buckland, A Manual of Roman Private Law 350 (2d ed. 1939).

correi debendi (kor-ee-l di-ben-dI). [Latin] Roman & Scots law. Joint debtors. - Also termed correi promit­ tendi (proh-mi-ten-dI). See STlPULATIO. "Correi Debendi - The name given by the Roman law to persons jointly bound.... In the Scotch law. if bound sever­ ally, and not jointly and severally, each IS bound only for his share, whatever be the responsibility of the others." Hugh Barclay, A Digest of the Law of Scotland 196 (3d ed.

1865).

correi stipulandi. See CORREI CREDENDI. correlative (kd-rel-;l-tiv), adj. (16c) 1. Related or corre­ sponding; analogous. 2. Having or involving a recipro­ calor mutually interdependent relationship . correlative-rights doctrine. (1938) 1. Water law. The principle that adjoining landowners must limit their use ofa common water source to a reasonable amount. lOL] [Cases: Waters and Water Courses "Under the correlative rights doctrine .. , rights to ground­ water are determined by land ownership. However, owners of land overlying a single aquifer are each limited to a reasonable share of the total supply of groundwater. The share is usually based on the acreage owned." David H. Getches, Water Law in a Nutshell 249 (3d ed. 1997).

2. Oil & gas. The rule that a lessee's or landowner's right to capture oil and gas from the property is restricted by the duty to exercise that right without waste or neg­ ligence.• This is a corollary to the rule of capture. Cf. RULE OF CAPTURE (4). [Cases: Mines and Minerals C:=> 47.] correspondence audit. See AUDIT. correspondent. n. (17c) 1. The writer of a letter or letters. 2. A person employed by the media to report on events. 3. A securities firm or financial institution that performs services for another in a place or market that the other does not have direct access to. cor­ respond, vb. correspondent bank. See BANK. corresponding promise. See PROMISE. corresponding secretary. See SECRETARY.

cost

397 correus (kor-ee-. [Cases: Witnesses (;:::>41O-416.J 2. Formal confirmation or rat­ ification . corroborate, vb. corroborative (k;Hob-d-rd-tiv), adj. - corrobo­ rator (kd-rob-24.5.] corrupt-practices act. (1897) A federal or state statute that regulates campaign contributions and expendi­ tures as well as their disclosure. [Cases: Elections 317.1.] corsnaed, n. See ordeal of the morsel under ORDEAL corsned, n. See ordeal ofthe morsel under ORDEAL. corvee seigneuriale (kor-vay sen-yuu-ree-ahl). [FrenchJ Hist. Services due the lord of the manor. - Often short­ ened to corvee. cosen, vb. See COZEN. cosening, n. See COZENING. cosign, vb. (1967) To sign a document along with another person, usu. to assume obligations and to supply credit to the principal obligor. - cosignature, n . cosigner. See COMAKER. cosinage (k;)z-;m-ij). Hist. A writ used by an heir to secure the right to land held by a great-great-grandfather or certain collateral relatives. - Also spelled cosenage; cousinage. Also termed consanguineo; de consan­ guineo; de consanguinitate. Cf. AIEL; BESAYEL "[Tlhere is the closest possible affinity between the Mort d'Ancestor and the action of Cosinage. If I claim the seisin of my uncle, I use the one; if I claim the seisin of a first cousin, I use the other. But procedurally, the two stand far apart." 2 Frederick Pollock & Frederic William Maitland, History of English Law Before the Time of Edward f 569 (2d ed.1899).

cosmetic damages. See DAMAGES. cost, n. (13c) 1. The amount paid or charged for some­ thing; price or expenditure. Cf. EXPENSE. aboriginal cost. 'The cost of an asset incurred by the first company to use it for public utilities. acquisition cost. (I926) 1. An asset's net price; the original cost of an asset. - Also termed historical cost; original cost. 2. See LOAD.

after cost. A delayed expense; an expense, such as one for repair under a warranty, incurred after the prin­ cipal transaction. applied cost. A cost appropriated to a project before it has been incurred. average cost. The sum of the costs of beginning inven­ tory and the costs of later additions divided by the total number of available units. average variable cost. The average cost per unit of output, arrived at by dividing the total variable expenses of production by the total units of output. Cf.

LONG-RUN INCREMENTAL COST.

avoidable cost. A cost that can be averted if produc­ tion is held below a certain level so that additional expenses will not be incurred. carrying cost. 1. Accounting. The variable cost of stocking one unit of inventory for one year.• Carrying cost includes the opportunity cost of the capital invested in the inventory. - Also termed cost ofcarrying. 2. A current charge or noncapital expen­ diture made to prevent the causing or accelerating of the termination of a defeasible estate, as well as the sums spent on repairs required by the duty to avoid permissive waste. common cost. See indirect cost. cost of completion. (1852) Contracts. An element of damages based on the expense that would be incurred by the nonbreaching party to finish the promised per­ formance. [Cases: Damages (:::::>120, 121.] direct cost. (1818) The amount of money for material, labor, and overhead to produce a product. distribution cost. Any cost incurred in marketing a product or service, such as advertising, storage, and shipping. fixed cost. (1894) A cost whose value does not fluctu­ ate with changes in output or business activity; esp., overhead expenses such as rent, salaries, and depre­ ciation. Also termed fixed charge;fixed expense. flotation cost. (usu. pl.) A cost incurred in issuing addi­ tional stock. historical cost. See acquisition cost. implicit cost. See opportunity cost. indirect cost. (1884) A cost that is not specific to the production of a particular good or service but that arises from production activity in general, such as overhead allocations for general and administrative activities. Also termed common cost. manufacturing cost. The cost incurred in the produc­ tion of goods, including direct and indirect costs. marginal cost. (1891) The additional cost incurred in producing one more unit of output. mitigation cost. A party's expenditures to reduce an existing harm so that further damage might be halted, slowed, or diminished. [Cases: Damages C='42, 45.]

mixed cost. A cost that includes fixed and variable costs. net book cost. The cost of property when it was first acquired or devoted to pUblic use, minus accumulated depreciation. Also termed rate-base value. net cost. The cost of an item, arrived at by subtracting any financial gain from the total cost. opportunity cost. (1894) The cost of acquiring an asset measured by the value of an alternative investment that is forgone . Also termed implicit cost. original cost. See acquisition cost (1). prime cost. The true price paid for goods on a bona fide purchase. prophylactic cost. A party's expenditures to prepare property to withstand or prevent potential future harm.• These costs are not related to any existing property damage and are usu. not recoverable under insurance contracts. [Cases: Insurance (:::::>2277.] replacement cost. (1928) The cost of a substitute asset that is equivalent to an asset currently held.• The new asset has the same utility but mayor may not be identical to the one replaced. social cost. 'Ine cost to society of any particular practice or rule . sunk cost. (1916) A cost that has already been incurred and that cannot be recovered. tangible cost. Oil & gas. A particular expense asso­ ciated with drilling, such as the costs incurred for materials and land. - Drilling and testing costs are considered intangible. transaction cost. (usu. pI.) A cost connected with a process transaction, such as a broker's commission, the time and effort expended to arrange a deal, or the cost involved in litigating a dispute. unit cost. The cost of a single unit of a product or service; the total manufacturing cost divided by the number of units. variable cost. (1953) The cost that varies in the short run in dose relationship with changes in output. 2. (pl.) The charges or fees taxed by the court, such as filing fees, jury fees, courthouse fees, and reporter fees. Also termed court costs. 3. (pl.) The expenses of litigation, prosecution, or other legal transaction, esp. those allowed in favor of one party against the other. • Some but not all states allow parties to claim attor­ ney's fees as a litigation cost. - Also termed (in sense 3) litigation costs. [Cases: Costs (:::::>2, 146-194, 194.16; Federal Civil ProcedureC--'-J2721-2748.] accruing costs. Costs and expenses incurred after judgment. costs ofincrease. See COSTS OP INCREASE.

399

cost-of-living clause

costs ofthe day. Costs incurred in preparing for trial. costs to abide event. Costs incurred by a success­ ful party who is entitled to an award of those costs incurred at the conclusion of the matter; esp., appel­ late court's order for payment of costs to the party who finally prevails in a proceeding that has been returned to a lower court. [Cases: Costs ~69.1 interlocutory costs. Costs incurred during the pendency of an appeal. taxable cost. A litigation-related expense that the prevailing party is entitled to as part of the court's award. [Cases: Costs C=)2; Federal Civil Procedure ~2735.1

cost accounting. See cost accounting method under ACCOUNTING METHOD.

cost accounting method. See ACCOUNTING METHOD. cost and freight. A mercantile-contract term allocat­ ing the rights and duties of the buyer and the seller of goods with respect to delivery, payment, and risk ofloss, whereby the seller must (1) clear the goods for export, (2) arrange for transportation by water, and (3) pay the costs of shipping to the port of destination. - When the goods are safely stowed on the receiving ship while docked, the seller's delivery is complete; the risk of loss then passes to the buyer. This term is used only when goods are transported by sea or inland waterway. - Abbr. CF; CFR; C&F; CandF. Cf. COST, INSURANCE, AND FREIGHT; FREE ON BOARD. [Cases: Sales ~77(2), 202(5).] cost approach. (1949) A method of appraising real property, based on the cost of building a new structure with the same utility, assuming that an informed buyer would pay no more for the property than it would cost to build a new structure having the same usefulness. Cf. MARKET APPROACH; INCOME APPROACH. [Cases: Taxation C=348(4).] . cost basis. See BASIS (2). cost-benefit analysis. (1963) An analytical technique that weighs the costs of a proposed decision, holding, or project against the expected advantages, economic or otherwise. cost bill. See bill ofcosts under BILL (2). cost bond. See BOND (2). cost-book mining company. An association of persons organized for the purpose of working mines or lodes, whose capital stock is divided into shares that are trans­ ferable without the consent of other members. - The management ofthe mine is entrusted to an agent called a purser. [Cases: Mines and Minerals ~ 101.] cost depletion. Oil & gas. The recovery of an oil-and-gas producer's basis (i.e., investment) in a producing well by deducting the basis proportionately over the producing life of the well. Treas. Reg. § 1.611-2. Cf. PERCENTAGE DEPLETION.

"Under cost depletion, the taxpayer in an oil and gas property deducts the basis in the property from the income as oil and gas are produced and sold. Cost depletion is

calculated by a formula ... [that] relates the recovery of the taxpayer's investment to the proportion that the current unit sales of oil and gas bear to the total anticipated sales of oil and gas from the property. The investment is recov­ ered ratably over the life of the reserves." John S. lowe. Oil and Gas Law in a Nutshell 353 (3d ed. 1995).

cost, insurance, and freight. A mercantile-contract term allocating the rights and duties of the buyer and the seller of goods with respect to delivery, payment, and risk ofloss, whereby the seller must (1) clear the goods for export, (2) arrange for transportation by water, (3) procure insurance against the buyer's risk of damage during carriage, and (4) pay the costs of shipping to the port of destination. - The seller's delivery is complete (and the risk ofloss passes to the buyer) when the goods are loaded on the receiving ship while docked in the port of shipment. This term is used only when goods are transported by sea or inland waterway. - Abbr. ClF. Cf. COST AND FREIGHT; FREE ON BOARD. [Cases: Sales ~77(2).1 "'C.Lf.' is a mercantile symbol that is commonly used in international sales contracts. It is defined by section 2-320 of the UCC and by the Incoterms 1953 and the Revised American Foreign Trade Definitions 1941. Under all of these definitions the letters 'c.iJ.' mean that the price covers the cost of the goods, the cost of insuring them for the benefit of the order of the buyer, and the cost of carrying\ them to the named pOint, al most always the des· tination. like the other mercantile symbols, the meaning of 'C.I.F.' may be varied by agreement." William D. Hawkland, Uniform Commercial Code Series § 2·320:01 (1984).

elF destination. A contractual term denoting that the

price includes in a lump sum the cost of the goods and the insurance and freight to the named destina­ tion. Also termed ClF place ofdestination. [Cases: Sales~77(2).]

cost justification. (1938) Under the Robinson-Patman Act, an affirmative defense against a charge of price discrimination dependent on the seller's showing that it incurs lower costs in serving those customers who are paying less. 15 USCA § 13(a). cost-of-capital method. A means of measuring a utility's cost of acquiring debt and equity capital. - Regulatory commissions often use this method to determine a fair rate of return for the utility's investors. [Cases: Gas 14.4(10); Public Utilities ~ 129.] cost of carrying. See carrying cost under COST (1). cost of completion. See COST (1). cost-of-living adjustment. An automatic increase or decrease in the amount of money, usu. support or maintenance, to be paid by one party to another, the adjustment being tied to the cost-of-Iiving-adjustment figures maintained and updated by the federal govern­ ment. Abbr. COLA. cost-of-living clause. (1953) A provision (as in a contract or lease) that gives an automatic wage, rent, or benefit increase tied in some way to cost-of-living rises in the economy. - A cost-oC-living clause may also cover a decrease, though this is rare. See INFLATION. [Cases: Landlord and Tenant ~200.7.]

400

cost-of-living index

cost-of-living index. See CONSUMER PRICE INDEX. cost-plus contract. See CONTRACT. cost-push inflation. See INFLATION. costs de incremento. See COSTS OF INCREASE. costs of collection. (1833) Expenses incurred in receiv­ ing payment of a note; esp., attorney's fees incurred in the effort to collect a note. [Cases: Bills and Notes (>534.J costs of increase. Costs of court awarded in addition to what a jury awards.• Juries usu. awarded the success­ ful party only a small sum for costs. A party wishing to recoup the additional costs had to file an affidavit of increase setting forth what further costs were incurred by taking the matter through trial. - Also termed costs de incremento. See affidavit of increase under AFFIDA­ VIT. [Cases: Costs (>66; Federal Civil Procedure (> 2721-2748.J costs ofthe day. See COST (3). costs to abide event. See COST (3). cosurety. A surety who shares the cost of perform­ ing suretyship obligations with another. See SURETY. [Cases: Principal and Surety (>62, 191-200.J cosuretyship. The relation between two or more sureties who are bound to answer for the same duty of the principal, and who are jointly responsible for any loss resulting from the principal's default. cotarius (k;l-tair-ee-~s). [Law Latin] Hist. A socage­ tenure serf who holds land by paying rent and provid­ ing some personal services to the lord .• Both cotarius and coterellus serfs were also known as cottagers. Cf. COT ERELLUS.

cotenancy. See TENANCY. coterellus (kot-~-rel-~s). [Law LatinJ Hist. A serf who inhabits a cottage; a servile tenant whose person, issue, and goods are at the disposal of the lord. - Also spelled coterell. Cf. COTARIUS. "Coterellus .... A cottager. Considered by Spelman and others, the same with cotarius. But Cowell makes the dis­ tinction that the cotarius had free socage tenure, and paid a stated firm (rent) in provisions or money, with some occa­ sional customary service; whereas the coterellus seemed to have held in mere Villenage, and had his person and issue and goods disposed at the pleasure of the lord." 1 Alexander M. Burrill, A Law Dictionary and Glossary 387 (2d ed. 1867).

coterminous (koh-t~r-m~-n~s), adj. (18c) 1. (Of ideas or events) coextensive in time or meaning <Judge Smith's tenure was coterminous with Judge Jasper's>. 2. CON­ TERMINOUS (1).

cotland (kot-l~nd). Hist. Land held by a cottager, whether in socage or villeinage tenure. cotortfeasor (koh-tort-fee-z~r). One who, together with another, has committed a tort. See TORTFEASOR. [Cases: Torts (> 134.] cotrustee. One of two or more persons in whom the administration of a trust is vested .• The cotrustees form a collective trustee and exercise their powers

jointly. - Also termed joint trustee. See TRUSTEE. [Cases: Trusts (>238.J cotset (kot-set). Hist. A villein who provides labor to a lord in exchange for a cottage and plot ofland. - Also termed cotsetus. cottier (kot-ee-~r). 1. Hist. A serf who lives in a cottage; a cottager. • Over time, cottier has come to refer to a day laborer or a rural dweller. 2. Hist. Irish law. A tenant who leases a house and a small (usu. two acre or less) plot ofland. couchant and levant (kow-ch~nt / lev-~nt), adj. See LEVANT AND COUCHANT.

council. (12c) 1. A deliberative assembly . common council. 1. In some cities, the lower branch of a city council. [Cases: Municipal Corporations (>82.] 2. In some cities, the city's governing board. [Cases: Municipal Corporations (>80.J general council. A body of elected persons who repre­ sent all the citizens of a territory or members of an organization. select council. In some cities, the upper branch of a city council. 2. An administrative or executive body . councillor. See COUNCILOR. Council of Economic Advisers. A three-member council in the Executive Office of the President respon­ sible for analyzing the national economy and advising the President on economic matters .• Created by the Employment Act of 1946, it now functions under Reorganization Plan No.9 of 1953. Its members are appointed by the President with the advice and consent of the Senate. - Abbr. CEA. Council of the North. Hist. A body used by the Tudors to administer the northern parts of England (esp. Yorkshire) during the 16th and 17th centuries.• The council probably predated the Tudors, but Henry VIII revived it. In addition to enforcing Crown policy in the northern territories, the appointees (many of whom were lawyers) exercised wide criminal and civil juris­ diction. The Council disbanded ca. 1640. Council on Environmental Quality. A three-member council in the Executive Office of the President respon­ sible for developing and recommending national policy on environmental quality.• The council was created by the National Environmental Policy Act of 1969. Its members are appointed by the President with the advice and consent of the Senate. 42 USCA § 4321 et seq. & § 4371 et seq. - Abbr. CEQ. [Cases: Environ­ mental Law (>571.J councilor, n. (i5c) A person who serves on a council, esp. at the local level. - Also spelled councillor. - council­ lorship, n. counsel, n. (13c) 1. Advice or assistance 53.] "This word ... is in our old law-books used synonymously with declaration .... But when the suit embraces two or more causes of action (each of which of course requires a

count different statement), or when the plaintiff makes two or more different statements of one and the same cause of action, each several statement is called a count, and all of them, collectively, constitute the declaration." 1 John Bouvier, A Law Dictionary 245 (1839).

common count. IIist. In a plaintiff's pleading in an action for debt, boilerplate language that is not founded on the circumstances of the individual case but is intended to guard against a possible variance and to enable the plaintiff to take advantage of any ground of liability that the proof may disclose.• In the action for indebitatus assumpsit, the common count stated that the defendant had failed to pay a debt as' promised. See indebitatus assumpsit under ASSUMPSIT.

general count. A count that states the plaintiffs claim without undue particularity. money count. Rist. A count, usu. founded on a simple contract, giving rise to a claim for payment of money. "Simple contracts, express or implied, resulting in mere debts. are of so frequent occurrence as causes of action, that certain concise forms of counts were devised for suing upon them. These are called the 'indebitatus' or 'money counts.'" 2 Stewart Rapalje & Robert L. lawrence, A Dierion· ayy of AmeriCCln and English Law 833 (1883).

multiple counts. (1941) Several separate causes of action or charged offenses contained in a single pleading or indictment. [Cases: Indictment and Information ~ 125, 126; Pleading omnibus count (ahm-ni-b<Js). A count that combines into one count all money claims, claims for goods sold and delivered, claims for work and labor, and claims for an account stated. separate count. (18c) One of two or more criminal charges contained in one indictment, each charge constituting a separate indictment for which the accused may be tried. [Cases: Indictment and Infor­ mation ~97.] several count. One of two or more counts in a pleading, each ofwhich states a different cause ofaction. [Cases: 53.] Pleading special count. (18c) A section ofa pleading in which the plaintiff's claim is stated with great particularity­ llSU. employed only when the pleading rules require specificity. [Cases: Pleading ~ 18, 50.] 3. A canvassing. See CANVASS (2).4. Hist. The plain­ tiff's declaration, or initial pleading, in a real action. See DECLARATION (7). 5. Patents. The part of a patent application that defines the subject matter in a priority contest (I.e., an interference) between two or more appli­ cations or between one or more applications and one or more patents. See INTERFERENCE (3). ICases: Patents (;:::·lO6(2).] count, vb. (l7c) 1. In pleading, to declare or state; to narrate the facts that state a claim. 2. Rist. To plead orally; to plead or argue a case in court. counted vote. See VOTE (4).

402

counter. Hist. An advocate or professional pleader; one who counts (Le., orally recites) for a client. • Counters had coalesced into an identifiable group practicing before the Common Bench by the beginning of the 13th century. They were the leaders of the medieval legal profession, and over time came to be known as serjeants at law. - Also spelled countor; contor; counteur. See SERJEANT-AT-LAW.

counteraction. See COUNTERCLAIM. counteraffidavit. See AFFIDAVIT. counterbond. See BOND (2). counterclaim, n. (18c) A claim for relief asserted against an opposing party after an original claim has been made; esp., a defendant's claim in opposition to or as a setoff against the plaintiff's claim. - Also termed counteraction; countersuit; cross-demand. Cf. CROSS­ CLAIM. [Cases: Federal Civil Procedure ~775-784; Pleading ~ 138; Set-off and Counterclaim counterclaim, vb. counterdaimant, n. "Under [Fed. R. Civ. P.] Rule 13 the court has broad discre­ tion to allow claims to be joined in order to expedite the resolution of all controversies between the parties in one suit. Rule 13(c) specifically provides that the counterclaim­ ant is not limited by recovery sought by the opposing party but may claim relief in excess of that amount. Further, the general legal rule is that it is immaterial whether a counterclaim is legal or equitable for purposes of determin­ ing whether it properly is brought under Rule 13.... The expectation is that this liberal joinder policy will further the elimination of circuity of action and multiple litigation." 6 Charles Alan Wright et aI., FedeYCII PYClctice and Procedure § 1403, at 15-16 (2d ed. 1990).

compulsory counterclaim. (1938) A counterclaim that must be asserted to be cognizable, usu. because it relates to the opposing party's claim and arises out of the same subject matter.• If a defendant fails to assert a compulsory counterclaim in the original action, that claim may not be brought in a later, separate action (with some exceptions). See Fed. R. Civ_ P. 13(a). [Cases: Federal Civil Procedure C-'--::;775; Judgment (;:::585(4); Set-off and Counterclaim] ~60.1 permissive counterclaim. (I924) A counterclaim that need not be asserted to be cognizable, usu. because it does not arise out of the same subject matter as the opposing party's claim or involves third parties over which the court does not have jurisdiction.• Permis­ sive counterclaims may be brought in a later, separate action. See Fed. R. Civ. P. 13(b). counter-complaint. See COMPLAINT. counterdeed. See DEED. counterfeisance (kown-t<Jr-fee-z<Jnts). Archaic. The act of counterfeiting. counterfeit, vb. (l4c) To unlawfully forge, copy, or imitate an item, esp. money or a negotiable instru­ ment (such as a security or promissory note) or other officially issued item of value (such as a postage stamp or a food stamp), or to possess such an item without authorization and with the intent to deceive or defraud by presenting the item as genuine.• Counterfeiting includes producing or selling an item that displays a

countez

403

reproduction of a genuine trademark, usu. to deceive buyers into thinking they are purchasing genuine mer­ chandise. See 18 USCA §§ 470 et seq. [Cases: Counter­ feiting Trademarks ~ 1432.] - counterfeiting, n. - counterfeit, n. - counterfeit, adj. "Literally a counterfeit is an imitation intended to pass for an original. Hence it is spurious or false, and to counterfeit is to make false. For this reason the verbs counterfeit and forge are often employed as synonyms and the same is true to some extent of the corresponding nouns. No error is involved in this usage but it is important to distinguish between the words as far as possible when used as the labels of criminal offenses, In the most restricted sense, [c]ounterfeiting is the unlawful making of false money in the simiJitude of the genuine, At one time under English statutes it was made treason. Under modern statutes it is a felony," Rollin M. Perkins & Ronald N. Boyce, Criminal Law 431-32 (3d ed, 1982),

Counterfeit Access Device and Computer Fraud and Abuse Act of 1984. A federal statute that criminalizes various computer-related activities such as accessing without permission a computer system belonging to a bank or the federal government, or using that access to improperly obtain anything of value. 18 USCA § 1030. [Cases: Telecommunications :;:; 1342, 1348.] counterfeiter. A person who forges or otherwise makes a copy or an unauthorized imitation of something (esp. a document, currency, or another's Signature) with the intent to deceive or defraud. counterfeiting, n. The unlawful forgery, copying, or imi­ tation of an item, esp. money or a negotiable instru­ ment (such as a security or promissory note) or other officially issued item of value (such as a postage stamp), or the unauthorized possession of such an item, with the intent to deceive or defraud by claiming or passing the item as genuine. See 18 USCA §§ 470 et seq. [Cases: Counterfeiting . - counterfeit, vb. counter­ feit, n. - counterfeit, adj. counterfeit mark. See counterfeit trademark under TRADEMARK.

counterfeit recording. Copyright. An unauthorized copy of a copyright-protected recording's sounds, artwork, label, trademark, or packaging. - Also termed bootleg recording. [Cases: Copyrights and Intellectual Property counterfeit trademark. See TRADEMARK. counterfoit (kown-t~r-foyl), n. A detachable part of a writing on which the particulars of the main part are summarized.• The most common example is a check stub, on which the date, the payee, and the amount are typically noted. counterletter. Civil law. A document in which the parties to a simulated contract record their true intentions. La. Civ. Code art. 2025 .• For example, the record owner of real property may acknowledge in a counterletter that another person actually owns the property; the counterletter may then be used when the property is to be reconveyed after a period. A counterletter can have no effect against a third party acting in good faith. See simulated contract under CONTRACT.

countermand (kown-t~r-mand), n. (16c) 1. A contradic­ tory command that overrides or annuls a previous one. 2. An action that has the effect of voiding something previously ordered; a revocation. - countermand (kown-t~r-mand or kown-), vb. counteroffer, n. (I8c) Contracts. An offeree's new offer that varies the terms of the original offer and that ordi­ narily rejects and terminates the original offer.• A late or defective acceptance is considered a counteroffer. See MIRROR-IMAGE RULE. [Cases: Contracts counteroffer, vb. counterofferor, n. counterpart. (l5c) 1. In conveyancing, a correspond­ ing part of an instrument . 2. One oftwo or more copies or duplicates of a legal instrument . "Formerly 'part' was used as the opposite of 'counterpart,' in respect to covenants executed in duplicate, but now each copy is called a 'counterpart.'" 2 Stewart Rapalje & Robert L. Lawrence, A Dictionary ofAmerican and English law 927 (1883), "Counterparts are not nowadays written on the same parchment, but that which is executed by the grantor of an interest is called the 'original,' while that which is executed by the party to whom the interest passes for example, a lessee is called the 'counterpart.'" G.c. Cheshire, Modern Law of Real Property 674 (3d ed. 1933).

counterpart writ. See WRIT. counterpromise, n. (l8c) A promise made in exchange for another party's promise . See bilat­ eral contract under CONTRACT. [Cases: Contracts 55.]- counterpromise, vb. counter-roll. Hist. A record kept by an officer as a check on another officer's record, esp. the rolls maintained by a sheriff and a coroner. countersign, vb. (l6c) To write one's own name next to someone else's to verify the other signer's identity. [Cases: Signatures - countersignature, n. countersuit. See COl.iNTERCLAIM. countertrade. A type of international trade in which purchases made by an importing nation are linked to offsetting purchases made by the exporting nation. "Countertrade is barter in modern clothes. It developed rapidly as a form of doing business with the USSR and Eastern European nations in the 1970s and 19805, before the major economic and political reforms tended to diminish its emphasis as a means of doing business," Ralph H. Folsom & Michael W. Gordon, International Business Transactions § 2,1, at 46 (1995).

countervailable subsidy. See SUBSIDY. countervailing duty. See DUTY (4). countervailing equity. See EQUITY. counter will. See mutual will under WILL. counteur. See COUNTER. countez (kawn-teez). [Law French] Hist. A direction given by a clerk of a court to a crier, after a jury was sworn, to count the jury members.

404

Counting House of the King's Household "Of this ignorance we may see daily instances, in the abuse of two legal terms of ancient French; one, the prologue to all proclamations, 'oyez, or hear ye,' which is generally pronounced most unmeaningly, '0 yes:' the other, a more pardonable mistake, viz., when ajury are all sworn, the officer bids the crier number them, for which the word in law-french is, 'countez;' but we now hear it pronounced in very good English, 'count these.'" 4 William Blackstone, Commentaries on the Laws of England 334 n.S (1769).

Counting House of the King's Household. See BOARD OF GREEN CLOTH.

countor. See COUNTER. country. 1. A nation or political state; STATE (1). 2. The territory of such a nation or state. county. (14c) The largest territorial division for local gov­ ernment within a state, generally considered to be a political subdivision and a quasi-corporation .• Every county exists as a result of a sovereign act oflegislation, either constitutional or statutory, separating it from the rest of the state as an integral part of its territory and establishing it as one of the primary divisions of the state for purposes of civil administration. - Abbr. co. [Cases: Counties C=::' 1.] "A county is a part of the realm, inti rely governed by one sheriff under the king, but all subject to the general govern· ment of the realm; and therefore every county is as it were an intire body of itself, so that upon a feoffment of lands in many towns in one county, livery of seisin made in one parcel in anyone of the towns in the name of all, sufficeth for all the lands in all the other towns within the same county: but upon a feoffment of lands in divers counties, there must be livery of seisin in every county." Sir Henry Finch, Law, or a Discourse Thereof 79 (1759).

foreign county. Any county separate from that of a county where matters arising in the former county are called into question, though both may lie within the same state or country. county agent. See juvenile officer under OFFICER (1). county attorney. An attorney who represents a county in civil matters and, in some jurisdictions, prosecutes criminal offenders. county auditor. See AUDITOR. county bond. See BOND (3). county commissioner. See COMMISSIONER. county court. See COURT. county judge. See JUDGE. county officer. See OFFICER (1). county palatine (pal-~-trn or -tin). Hist. A county in which the lord held certain royal privileges, such as the right to pardon a felon or to have indictments recite that offenses were committed against the lord's - rather than the king's - peace.• In England, there were three such counties: Chester, Durham, and Lancaster. The separate legal systems in these counties were slowly eliminated; the last vestiges of a separate system were abolished by the Courts Act (1971). Cf. proprietary gov­ ernment under GOVERNMENT. "The counties palatine were Chester, Durham, and Lan· caster. Whatever may be the precise date at which these counties became 'Palatine,' it seems likely that there was

in Saxon times a jurisdiction equivalent to that of the Palatine earl, and originating in usurpation and necessity. The Central Government was too far away both before and after the Conquest to control effectually the administration of the Marches, which were always turbulent and lawless districts." A.T. Carter, A History of English Legal Institutions 192 (4th ed. 1910).

county property. Property that a county is authorized to acquire, hold, or sell. [Cases: Counties C=::' 103.] county purpose. An objective pursued by a county; esp., one that a county levies taxes for. [Cases: Counties C=::' 190.1.] county seat. The municipality where a county's principal offices are located. - Also termed county town. [Cases: Counties C=::'25.] county supervisor. See county commissioner under COM­ MISSIONER.

county town. See COUNTY SEAT. county warrant. See WARRANT (3). coup d'etat (koo day-tah). [French "stroke of state"] A sudden, usu. violent, change of government through seizure of power. coupon (koo-pon). An interest or dividend certificate that is attached to another instrument, such as a bond, and that may be detached and separately presented for payment of a definite sum at a specified time. - Also termed interest coupon. coupon bond. See BOND (3). coupon interest rate. See coupon rate under INTEREST RATE.

coupon note. See NOTE (1). coupon rate. See INTEREST RATE. coupon security. See SECURITY. coupon yield. See YIELD. Cour de Cassation. See COURT OF CASSATION. courier. A messenger, esp. one who delivers parcels, packages, and the like .• In international law, the term denotes a messenger duly authorized by a sending state to deliver a diplomatic pouch. course ofbusiness. (17c) The normal routine in managing a trade or business. - Also termed ordinary course of business; regular course of business; ordinary course; regular course. [Cases: Customs and Usages C=::'9.] course of dealing. (16c) An established pattern of conduct between parties in a series of transactions (e.g., multiple sales of goods over a period of years).• If a dispute arises, the parties' course of dealing can be used as evidence of how they intended to carry out the transaction. Cf. COURSE OF PERFORMANCE; trade usage under USAGE. [Cases: Contracts C=::' 170.] "A course of dealing is distinguishable from a course of performance. As defined by the [UCC], 'course of dealing' relates to conduct under other transactions which occurred with regularity prior to the formation of the present contract, while 'course of performance' relates to the conduct of the parties under the contract in question subsequent to its formation. However, in meaning the

two expressions are essentially equivalent." Ronald A. Anderson, Uniform Commercial Code § 1-205:86 (1997).

course of employment. (I7c) Events that occur or cir­ cumstances that exist as a part of one's employment; esp., the time during which an employee furthers an employer's goals through employer-mandated direc­ tives. Cf. SCOPE OF EMPLOYMENT; ZONE OF EMPLOY­ MENT.

course of performance. (l8c) A sequence of previous performance by either party after an agreement has been entered into, when a contract involves repeated occasions for performance and both parties know the nature of the performance and have an opportunity to object to it.• A course of performance accepted or acquiesced in without objection is relevant to deter­ mining the meaning of the agreement. Cf. COURSE OF DEALING; trade usage under USAGE. [Cases: Contracts (::::J 170.] "[(lommon law courts have recognized the necessity of learning how people usually talk and what they usually mean by their language before one interprets their con­ tracts .... '[Clourse of performance' refers to a pattern of performance of the contract that is the subject of the dispute, as contrasted to 'course of dealing' which refers to the pattern of performance in prior contracts between the same parties." Claude Rohwer & Gordon D. Schaber, Contracts in a Nutshell 171-73 (4th ed. 1997). ''The phrase 'course of performance' relates to the way the parties have acted in performance of the particular contract in question. The judicial inquiry on this point is limited to the way the parties have acted in carrying out the particular contract that is in controversy, as distinguished from a general pattern of dealing that may embrace many other contracts or transactions between the parties." Ronald A. Anderson, Uniform Commercial Code § 1-205:74 (1997).

course of trade. See trade usage under USAGE. court, n. (12c) 1. A governmental body consisting of one or more judges who sit to adjudicate disputes and administer justice . "A court ... is a permanently organized body, with inde­ pendent judicial powers defined by law, meeting at a time and place fixed by law for the judicial public administration of justice." 1 Williamj. Hughes, Federal Practice, Jurisdiction & Procedure § 7, at 8 (1931).

2. "The judge or judges who sit on such a governmen­

tal body . 3. A legislative assembly . 4. The locale for a legal proceeding . 5. The building where the judge or judges convene to adjudi­ cate disputes and administer justice . - Also termed (in sense 5) courthouse. admiralty court. See ADMIRALTY (1). appeals court. See appellate court. appellate court. (18c) A court with jurisdiction to review decisions of lower courts or administrative agencies. - Also termed appeals court; appeal court; court of appeals; court of appeal; court of review. [Cases: Courts C='203-254.J

"Appellate courts are among the most important institu­ tions of governance in the United States. Through their review of trial court and administrative agency decisions they ensure that those bodies function lawfully and that litigants receive justice under law. Moreover, they provide authoritative interpretations of statutory and constitu­ tional provisions and control the shaping of the common law in response to ever-changing circumstances; they are thus major sources of law." Daniel John Meador & Jordana Simone Bernstein, Appellate Courts in the United States v (1994).

Archdeacon's court. See COURT OF ARCHDEACON. Article I Court. See legislative court. Article III Court. See ARTICLE III COURT. Bail Court. See BAIL COURT. Bankruptcy Court. See BANKRUPTCY COURT. baronial court. Hist. A feudal court established by the owner of extensive lands held directly of the king under military tenure. base court. Archaic. An inferior court. basement court. See BASEMENT COURT. bishop'S court. See BISHOP'S COURT. borough court. See BOROUGH COURT. business court. (1914) A court that handles exclusively commercial litigation. _ In the late 20th century, business courts emerged as a way to unclog the general dockets and to dispose of commercial cases more efficiently and consistently. Also termed com­ mercial court; commercial division. byrlaw court. See BYRLAW COURT. Central Criminal Court. See CENTRAL CRIMINAL COURT.

children's court. See juvenile court (1). church court. See ecclesiastical court. circuit court. (17c) I. A court usu. having jurisdiction over several counties, districts, or states, and holding sessions in all those areas. See CIRCUIT; CIRCUIT-RID­ ING. 2. UNITED STATES COURT OF APPEALS. city court. See municipal court. civil court. (16c) A court with jurisdiction over non­ criminal cases. - Abbr. Civ. Ct. claims court. See court ofclaims. closed court. See CLOSED COURT. Commerce Court. Rist. A federal court that had the power to review and enforce determinations of the Interstate Commerce Commission.• The Commerce Court existed from 1910 to 1913. commercial court. 1. See business court. 2. English law. A court that hears business disputes under simpli­ fied procedures designed to expedite the trials .• This court was created in 1971 as part of the Queen's Bench Division of the High Court of Justice. commissary court. 1. A court of general ecclesiasti­ cal jurisdiction presided over by four commission­ ers appointed by the Crown from the Faculty of

406

court

Advocates. 2. Scots law. A sheriff or county court that appoints and confirms the executors of decedents who have personal property in Scotland. 3. Hist. Scots law. A supreme court in which matters ofprobate and divorce were decided .• This court was established in Edinburgh in 1563 to hear cases that had previ­ ously come under the jurisdiction of the ecclesiastical commissary court. It was absorbed by the Court of Session in 1836. commissioner's court. In certain states, a court having jurisdiction over county affairs and often function­ ing more as a managerial group than as a judicial tribunal. common pleas court. See COURT OF COMMON PLEAS.

commonwealth court. 1. In some states, a court of general jurisdiction. [Cases: Courts (:::::> 118.] 2. In Pennsylvania, a court that hears suits against the state and reviews decisions of state agencies and officials. [Cases: Courts (:::::>242(1).] competent court. See court ofcompetent jurisdiction. conciliation court. See small-claims court. consistory court. See CONSISTORY COURT. constitutional court. (1823) 1. A court named or described and expressly protected in a constitution; esp., ARTICLE III COURT. 2. A court whose jurisdic­ tion is solely or primarily over claims that legislation (and sometimes executive action) is inconsistent with a nation's constitution.• Germany, for example, has state constitutional courts and a Federal Constitu­ tional Court. consular court (kon-sd-ldr). A court held by the consul of one country within the territory of another. • Consular courts are created by treaty, and their jurisdiction is usu. limited to civil cases. The last of the U.S. consular courts (Morocco) was abolished in 1956. [Cases: Ambassadors and Consuls (:::::>6.] coroner's court. English law. A common-law court that holds an inquisition if a person died a violent or unnatural death, died in prison, or died suddenly when the cause is not known.• The court also has jurisdiction over treasure trove. corporation court. In some jurisdictions, a court that serves an incorporated municipality. See municipal court. county court. (16c) 1. A court with powers and jurisdic­ tion dictated by a state constitution or statute .• The county court may govern administrative or judicial matters, depending on state law. - Also termed parish court; (in Latin) curia comitatus. [Cases: Counties 38; Courts (:::::> 182.] 2. See probate court. court above. (l7c) A courtto which a case is appealed.­ Also termed higher court; upper court. court a quo (ay kwoh). A court from which a case has been removed or appealed.

court below. (17c) A trial court or intermediate appel­ late court from which a case is appealed. - Also termed lower court. court christian. See ecclesiastical court. court de facto. See de facto court. court merchant. Hist. A court of limited jurisdiction that decided controversies arising between merchants, dealers, shipmasters, supercargoes, and other, usu. transient, people connected with trade .• Cases were usu. tried before a jury of merchants. court not of record. An inferior court that is not required to routinely make a record of each proceed­ ing and usu. does not. [Cases: Courts (:::::>49.] court of appeals. (17c) 1. An intermediate appellate court. - Also termed (as in California and England) court of appeal. See appellate court. 2. In New York and Maryland, the highest appellate court within the jurisdiction. [Cases: Courts (:::::>226, 237(1).] court ofchivalry. See HIGH COURT OF CHIVALRY. court of claims. A court with the authority to hear claims made against a state (or its political subdivi­ sion) for cases in which the state has waived sovereign immunity. - Also termed claims court. See UNITED STATES COURT OF FEDERAL CLAIMS. [Cases: States (:::::> 184.] court ofcompetent jurisdiction. A court that has the power and authority to do a particular act; one rec­ ognized by law as possessing the right to adjudicate a controversy. - Also termed competent court. court ofdomestic relations. See family court. court ofequity. (16c) A court that (1) has jurisdiction in equity, (2) administers and decides controversies in accordance with the rules, principles, and precedents of equity, and (3) follows the forms and procedures of chancery. Cf. court oflaw. [Cases: Courts (:::::>42(7).] court offinal appeal. 1. See court of last resort. 2. Eccles. law. (cap.) JUDICIAL COMMITTEE OF THE PRIVY COUNCIL.

court offirst instance. See trial court. court ofgeneral jurisdiction. (18c) A court having unlimited or nearly unlimited trial jurisdiction in both civil and criminal cases. - Also termed general­ jurisdiction court. [Cases: Courts (:::::> 117.5-158.1.] court of impeachment. See COURT FOR THE TRIAL OF IMPEACHMENTS.

court of inquiry. 1. Hist. In English law, a court appointed by the monarch to ascertain whether it was proper to use extreme measures against someone who had been court-martialed. 2. Hist. In American law, an agency created under articles of war and vested with the power to investigate the nature of a transac­ tion or accusation of an officer or soldier. 3. In some jurisdictions, a procedure that allows a magistrate to examine witnesses in relation to any offense that the magistrate has a good-faith reason to believe was committed.

407

court

court ofinstance. See trial court. court oflast resort. (17c) The court having the authority to handle the final appeal of a case, such as the U.S. Supreme Court. court oflaw. (16c) 1. Broadly, any judicial tribunal that administers the laws of a state or nation. 2. A court that proceeds according to the course of the common law, and that is governed by its rules and principles. Cf. court ofequity. court oflimited jurisdiction. A court with jurisdiction over only certain types ofcases, or cases in which the amount in controversy is limited. [Cases: Courts ~ 159-19il court ofordinary. See probate court. court oforiginal jurisdiction. (I8c) A court where an action is initiated and first heard. [Cases; Courts 117.5-15S.1,206.] court ofrecord. (ISc) 1. A court that is required to keep a record of its proceedings.• The court's records are presumed accurate and cannot be collaterally impeached. See OF RECORD (2). [Cases; Courts (;:::::< 48.] "The distinction that we still draw between 'courts of record' and courts that are 'not of record' takes us back to early times when the king asserts that his own word as all that has taken place in his presence is incontestable. This privilege he communicates to his own special court; its testimony as to ali that is done before it is concluSive. If any question arises as to what happened on a previous occasion, the justices decide this by recording or bearing record (recordantur, portant recordum). Other courts ... may and, upon occasion, must bear record; but their records are not irrefragable .... We easily slip into saying that a court whose record is incontrovertible is a court which has record (habet recordum) or is a court of record, while a court whose record may be disputed has no record (non habet recordum) and is no court of record." 2 Freder­ ick Pollock & Frederic William Maitland, History of English Law Before the Time of Edward 1669 (2d ed. 1899).

2. A court that may fine and imprison people for contempt. "A court of record is, strictly speaking, a court which has power to fine and imprison." Lancelot Feilding Everest, Everest and Strode's Law of Estoppel 13 (1923).

court ofreview. See appellate court.

court ofspecial jurisdiction. See limited court.

court ofspecial session. (1813) A court that has no

stated term and is not continuous, but is organized only for hearing a particular case. [Cases: Courts (;:::::) 64.]

court of summary jurisdiction. See magistrate's court. criminal court. A court with jurisdiction over criminal matters. Crown Court. See CROWN COURT. Dean ofGuild Court. See DEAN OF GUILD COURT. de facto court (di fak-toh). 1. A court functioning under the authority of a statute that is later adjudged to be invalid. - Also termed court defacto. [Cases: Courts

~59.l2.

A court established and acting under the authority of a de facto government. dependency court. A court having jurisdiction over matters involving abused and neglected children, foster care, the termination of parental rights, and (sometimes) adoption. diocesan court (dI-ahs-i-sin). Eccles. law. A court exer­ cising general or limited jurisdiction (as determined by patent, local custom, or legislation) of matters arising within a bishop's diocese .• Diocesan courts include the consistorv court, the courts of the com­ missaries, and the co~rts of archdeacons. district court. (I8c) 1. A trial court having general jurisdiction within its judicial district. Abbr. D.C. [Cases: Courts 191.] 2. Scots law. A local court, usu. staffed by lay magistrates, with jurisdiction over petty crimes. divided court. See DIVIDED COURT. divisional court. An English court made up of two or more judges from the High Court of Justice sitting in special cases that cannot be disposed of by one judge.• Each division of the High Court has a divi­ sional court, e.g., the Divisional Court of the Family Division. With the exception of the Divisional Court of the Chancery Division, which has jurisdiction to review land-registration appeals from the county court, almost all judicial appeals are from decisions of a magistrates' court. The Divisional Court of the Queen's Bench DiVision hears appeals from the Crown Court or the magistrates' court by way of case stated in criminal prosecutions, which is the most frequent use of a divisional court. domestic court. (1801) 1. A court having jurisdiction at the place of a party's residence or domicile. 2. See family court. domestic-relations court. See family court. drug court. A court that hears cases against nonvio­ lent adults and juveniles, who are often first-time offenders and who are usu. charged with posses­ sion of a controlled substance or with committing a minor drug-related crime .• Drug courts focus on treatment rather than on incarceration. Cf. problem­ solVing court. [Cases: Chemical Dependents 12; Sentencing and Punishment (:..-::::02051.] ecclesiastical court (i-klee-zee-as-ti-k;:!l). 1. A religiOUS court that hears matters concerning a particular religion. 2. In England, a court having jurisdiction over matters concerning the Church of England (the established church) as well as the duties and rights of the people serving it, but whose modern jurisdiction is limited to matters of ecclesiastical discipline and church property. Also termed church court; court christian; spiritual court; (in Latin) christianitatis curia; curia christianitatis. [Cases: Religious Societ­ ies 14.] 'The ecclesiastical courts exercised a jurisdiction which played a part of the development of the English legal system, and their work was not confined to controlling

the clergy and doctrines of the Church. The jurisdiction of these courts was of particular significance before the Reformation, but, in certain matters and especially in matrimonial causes and the law of succession to property on death (testate and intestate succession), it remained of importance till the middle of the nineteenth century." 1 A.K.R. Kiralfy, Potter's Historica!lntroduction to English Law and Its Institutions 211 (4th ed. 1958).

examining court. (ISc) A lower court (usu. preSided over by a magistrate) that determines probable cause and sets bail at a preliminary hearing in a criminal case. family court. (1923) A court having jurisdiction over matters involving divorce, child custody and support, paternity, domestic violence, and other family-law issues. Also termed domestic-relations court; court ofdomestic relations; domestic court. [Cases: Courts ~) 174.]

federal court. (ISc) A court having federal jurisdiction,

including the u.s. Supreme Court, circuit courts of appeals, district courts, bankruptcy courts, and tax courts. - Also termed United States court. foreign court. (16c) I. The court of a foreign nation. 2. The court of another state. forty-days court. See COURT OF ATTACHMENTS. franchise court. See FRANCHISE COURT. full court. (16c) A court session that is attended by all the court's judges; an en bane court. Also termed

full bench. General Court. See GENERAL COURT. general-jurisdiction court. See court ofgeneral juris­ diction. High Commission Court. See COURT OF HIGH COM­ MISSION.

High Court. 1. See HIGH COURT OF JUSTICE. 2. See HIGH COURT OF JUSTICIARY.

High Court ofAdmiralty. See HIGH COURT 01' ADMI­ RALTY.

High Court of Chivalry. See HIGH COURT OF CHIVALRY.

High CaurtofDelegates. See COURT OF DELEGATES. High Court of Errors and Appeals. See COURT OF ERRORS AND APPEALS.

High CaurtafJustice. See HIGH COURT OF JUSTICE. High Court ofJusticiary. See HIGH COURT OF JUSTI­ CIARY.

higher court. See court above. highest caurt. (l6c) The court oflast resort in a particu­ lar jurisdiction; a court whose decision is final and cannot be appealed because no higher court exists to consider the matter. - The U.S. Supreme Court, for example, is the highest federal court. hot court. (1972) A court, esp. an appellate court, that is familiar with the briefs filed in the case, and there­ fore with the issues, before oral argument. _ Typi­ cally, a hot court controls the oral argument with its

questioning, as opposed to listening paSSively to set presentations of counsel.

housing court. A court dealing primarily with land­ lord-and-tenant matters, including disputes over maintenance, lease terms, and building and fire codes. [Cases: Courts

hundred court. Hist. In England, a larger court baron, held for all inhabitants of a particular hundred rather than a manor, in which the free suitors were the judges (jurors) and the steward the register. ­ A hundred court was not a court of record, and it resembled a court-baron in all respects except for its larger territorial jurisdiction. The last hundred court was abolished in 1971. Also termed hundred moot. See COURT BARON. impeachment court. See COURT FOR THE TRIAL OF IMPEACHME:siTS. inferior court. (I7c) I. Any court that is subordinate to the chief appellate tribunal within a judicial system. 2. A court of special, limited, or statutory jurisdiction, whose record must show the existence of jurisdic­ tion in any given case to give its ruling presumptive validity. - Also termed lower court. inquisitorial court. A court in which the inquisitorial system prevails. ''We should remember that in the 'inquisitorial court' the roles of prosecutor, defender, and judge are combined in one person or group of persons. It is no accident that such a court commonly holds its sessions in secret. The usual explanation for this is that the methods by which it extracts confessions cannot stand public scrutiny. But the reason runs deeper. The methods employed by an inquisitorial court, even if open to the public, could scarcely be a secret of meaningful observation by an outsider. It is only when the roles of prosecutor, defender, and judge are sepa­ rated that a process of decision can take on an order and coherence that will make it understandable to an outside audience and convince that audience that all sides of the controversy have been considered." Lon L. Fuller, Anatomy of the Law 35-36 (1968).

instance court. 1. See trial court. 2. Hist. The admiralty court in England that exercised original jurisdiction in all cases except those involving prizes. insular court. A federal court with jurisdiction over U.S. island territories, such as the Virgin Islands. [Cases: Federal Courts C::=> 1021-1024.] intermediate court. An appellate court that is below a court oflast resort.

International Court ofJustice. See INTERNATIONAL COURT OF JUSTICE.

International Criminal Court. See

I~TERNATIO~AL

CRIMINAL COURT.

International Trade Court. See UNITED STATES COURT OF INTERNATIONAL TRADE. J.P. court. See justice court. justice court. (16c) A court, presided over by a justice of the peace, that has jurisdiction to hear minor criminal cases, matters involving small amounts of money, or certain specified claims (such as forcible-entry-and­

detainer suits). - Also termed justice-of-the-peace court; J.P. court. [Cases: Justices of the Peace C::=' 31.] juvenile court. (1903) 1. A court having jurisdiction over cases involving children under a specified age, usu. 18. _ Illinois enacted the first statewide juvenile­ court act in 1899. Today every state has a specialized juvenile or family court with exclusive original delin­ quency jurisdiction. - Also termed children's court. 174.] 2. A court having special [Cases: Courts jurisdiction over orphaned, delinquent, dependent, and neglected children. _ This type ofjuvenile court is created by statute and derives its power from the specific wording of the statute, usu. haVing exclusive original jurisdiction over matters involving abuse and neglect, adoption, status offenses, and delin­ quency. Generally, juvenile courts are special courts of a paternal nature that have jurisdiction over the care, custody, and control of children (as defined by the statute). The jurisdiction of the juvenile court is exercised as between the state (for the child) and the parents of the child and is not concerned with a custody controversy that does not affect the morale, health, or welfare ofthe child. A juvenile court is not a criminal court. The primary concern of a juvenile court is the child's immediate welfare. See UNIFORM JUVENILE COURT ACT. [Cases: Infants kangaroo court. (1849) 1. A self-appointed tribunal or mock court in which the principles of law and justice are disregarded, perverted, or parodied. - Kangaroo courts may be assembled by various groups, such as prisoners in a jail (to settle disputes between inmates) and players on a baseball team (to "punish" team­ mates who commit fielding errors). 2. A court or tribunal characterized by unauthorized or irregu­ lar procedures, esp. 80 as to render a fi:tir proceeding impossible. 3. A sham legal proceeding. - The term's origin is uncertain, but it appears to be an American­ ism. It has been traced to 1853 in the American West. "Kangaroo" might refer to the illogical leaps between "facts" and conclusions, or to the hapless defendant's quick bounce from court to gallows. King's Court. See CURIA REGIS. land court. A court having jurisdiction over land­ related matters including: (1) exclusive original juris­ diction of applications for registration ofland titles and related questions, writs of entry and petitions to clear title to real estate, petitions to determine the validity and extent of municipal zoning ordinances, bylaws, and regulations, and proceedings for fore­ closure and redemption from tax titles; (2) original concurrent jurisdiction of declaratory judgment pro­ ceedings, shared with the supreme judicial, superior, and probate courts; and (3) original concurrent equity jurisdiction in land-related matters, except for cases of specific performance ofland contracts. - Land courts today exist in the United States in Massachusetts and Hawaii. [Cases: Courts landed-estates court. Hist. English law. A statutorily established tribunal to dispose of encumbered real

estate more promptly and easily than could be accom­ plished through the ordinary judicial machinery. ­ This type of court was first established in Ireland by acts of 11 & 12 Vict., ch. 48 and 12 & 13 Vict., ch. 77. The purpose of the court was to enable the owner, or any lessee of an unexpired term of 63 years or less, of encumbered land to apply to commissioners to direct a sale. The court served as a court of record and was called the Incumbered Estates Court. A later act abolished that court and created a new perma­ nent tribunal called the Landed Estates Court. 21 & 22 Vict., ch. 72. legatine court. A court held by a papal legate and having ecclesiastical jurisdiction. legislative court. (1828) A court created by a statute, as opposed to one created by a constitution. - Also termed (in federal law) Article I court. [Cases: Courts levy court. Hist. A court in the District of Columbia that exercised many of the functions typical of county commissioners or county supervisors in the states, such as constructing and repairing roads and bridges. limited court. A court haVing special jurisdiction conferred by statute, such as a probate court. - Also termed court ofspecial jurisdiction. [Cases: Courts (~:::159-197.]

liquidation court. Any court in which a liquidation proceeding takes place. local court. A court whose jurisdiction is limited to a particular territory, such as a state, municipal, or county court. lord mayor's court. Hist. A court oflaw and equity that had jurisdiction in civil cases arising within the city of London and acted as the appellate court from the Chamberlain Court. _ It was abolished by the Court Act of 1971. lower court. 1. See court below. 2. See inferior court. magistrate's court (maj-i-strayts or -strits). (1904) 1. A court with jurisdiction over minor criminal offenses. _ Such a court also has the power to bind over for trial persons accused of more serious offenses. - Also termed police court. 2. A court with limited jurisdiction over minor criminal and civil matters. - Sometimes spelled (esp. in England) mag­ istrates' court. -- Also termed (in England) court of petty sessions; court ofsummary jurisdiction. [Cases: Justices of the Peace C::>31.j maritime court. See ADMIRALTY (1). mayor's court. A municipal court in which the mayor presides as the judge, with jurisdiction over minor criminal (and sometimes civil) matters, traffic offenses, and the like. [Cases: Municipal Corpora­ tions C::>635.] military court. A court that has jurisdiction over members of the armed forces and that enforces the

Code of Military Justice. See CODE OF MILITARY JUSTICE. [Cases: Military Justice =)870.] military court of inquiry. A military court that has special and limited jurisdiction and that is convened to investigate specific matters and, traditionally, to determine whether further procedures are warranted. 10 USCA § 935. [Cases: Armed Services ~41.] moot court. See MOOT COURT. municipal court. (17c) A court having jurisdiction (usu. civil and criminal) over cases arising within the municipality in which it sits. _ A municipal court's civil jurisdiction to issue a judgment is often limited to a small amount, and its criminal jurisdiction is limited to petty offenses. - Also termed city court. [Cases: Courts 4.] 4. Parliamentary law. Evidence of a delegate's entitle­ ment to be seated and vote in a convention or other deliberative assembly.• Before the meeting begins, the evidence usu. takes the form of a certificate or proof of election or appointment, which the delegate presents to a credentials committee so that the committee can list the delegate on its roster. During the meeting, the evidence usu, takes the form of a badge or card that the credentials committee issues to each delegate on its roster. See credentials committee under COMMIT­ TEE. - credential, vb. credentials committee. See COMMITTEE. credibility, n. (l6c) The quality that makes something (as a witness or some evidence) worthy of belief. [Cases: Criminal Law Evidence C;:>588.] - credible, adj. credible evidence. See EVIDENCE.

crastino (kras-ta-noh). [Law Latin] Hist. Tomorrow; on the morrow.• The return day of writs, so-called because the court terms always began on a saint's day; writs were therefore returnable the day after. CRAT. abbr. Charitable-remainder annuity trust. See charitable remainder annuity trust under TRUST. creancer (kree-an-sJr). [Law French] Hist. A creditor. Also spelled creansour. create a blank. Parliamentary law. To amend a motion by striking out one or more terms and replacing them with blanks rather than different terms. See amendment by striking out and inserting under AMENDMENT (3).• This form allows a vote on several competing proposals at one time, rather than the usual process ofvoting sepa­ rately upon each proposal. See BLANK (2). creationism. The teaching of the biblical version of the creation of the universe .• The United States Supreme Court held unconstitutional a Louisiana law that forbade the teaching of the theory of evolution unless biblical creation was also taught. The Court found the law violated the Establishment Clause of the First Amendment because it lacked a "clear secular purpose." Edwards v. Aguillard, 482 U.S. 578, 107 S.Ct 2573 (1987).

CREATIONISM.

creative sentence. See alternative sentence under SENTENCE.

creative work. See work of authorship under WORK (2). creativity. Copyright, The degree to which a work displays imaginativeness beyond what a person ofvery ordinary talents might create .• Labor and expense are not elements of creativity; for that reason, they are not protected by copyright. Feist Pubs. Inc. v. Rural Tel. Servo Co., 499 U.S. 340, 111 S.Ct. 1282 (1991). Cf. ORIG­ INALITY, SWEAT-OF-THE-BROW DOCTRINE. [Cases: Copyrights and Intellectual Property C=> 12.] "Where creativity refers to the nature of the work itself, originality refers to the nature of the author's contribution to the work. Thus, a public domain painting may evince great creativity, but if a copyright claimant adds nothing of his own to it, by way of reproduction or otherwise, then copyright will be denied on the basis of lack of original­ ity. Conversely, a work may be entirely the product of the claimant's independent efforts, and hence original, but may nevertheless be denied protection as a work of art if it is completely lacking in any modicum of creativity." 1 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 2.08[B][2], at 2-88 (Supp. 1995).

credible witness

credible witness. See WITNESS. credit, n. (l6c) 1. Belief; trust . 4. The availability of funds either from a financial institution or under a letter of credit . bank credit. Credit that a bank makes available to a borrower. consumer credit. Credit extended to an individual to facilitate the purchase of consumer goods and services. [Cases: Consumer Credit (;= 1.] installment credit. Consumer credit scheduled to be repaid in two or more payments, usu. at regular inter­ vals.• The seller ordinarily exacts finance charges. non installment credit. Consumer credit arranged to be repaid in a single payment. • Examples include doctors' and plumbers' bills. revolving credit. A consumer-credit arrangement that allows the borrower to buy goods or secure loans on a continuing basis as long as the outstanding balance does not exceed a specified limit. - Also termed open credit; revolving charge account. Cf. revolver loan under LOAN. [Cases: Consumer Credit (;=34.] 5. LETTER OF CREDIT . 6. A deduction from an amount due; an accounting entry reflecting an addition to revenue or net worth . Cf. DEBIT. 7. TAX CREDIT . accumulated-earnings credit. Tax. A deduction allowed in arriving at a corporation's accumulated taxable income .• It offsets the base on which the tax is assessed by reducing the taxable base by the greater of $250,000 or the accumulated earnings retained for the reasonable needs of the corporation, reduced by the net capital gain. IRC (26 USCA) § 535. See accu­ mulated-earnings tax under TAX. credit, vb. (17c) 1. To believe . 2. To enter (as an amount) on the credit side of an account . creditable. 1. Worthy of being believed; credible . 2. Capable ofbeing ascribed or credited . 3. Reputable; respectable . credit balance. Accounting. The status of an account when the sum of the credit entries exceeds the sum of the debit entries. credit bureau. (1874) An organization that compiles information on people's creditworthiness and publishes it in the form of reports that are used chiefly by mer­ chants and service-providers who deal directly with customers.• The practices of credit bureaus are regu­ lated by federal (and often state) law. Most bureaus are

424 members ofthe Associated Credit Bureaus ofAmerica. Cf. CREDIT-REPORTING BUREAU. [Cases: Credit Report­ ing Agencies 1-4.] credit card. An identification card used to obtain items on credit, usu. on a revolving basis. See revolving credit under CREDIT. Cf. DEBIT CARD. [Cases: Consumer Credit C-::8.] credit-card cramming. 1. A credit-card issuer's practice of charging consumers for optional goods or services that the consumers have not agreed to payor do not understand.• For example, the credit-card crammer may offer the consumer a free service for a limited period without making it clear that if the service is not canceled when the period ends, it will be automatically renewed for a fee. [Cases: Consumer Credit C:;8.J 2. A single act ofcharging a consumer's credit card without authorization, particularly for goods or services that the consumer did not agree to or receive. [Cases: Consumer Credit credit-card crime. (1970) The offense of using a credit card to purchase something with knowledge that (1) the card is stolen or forged, (2) the card has been revoked or canceled, or (3) the card's use is unauthorized. [Cases: Consumer Credit (;= 20.] credit freeze. See FREEZE. credit insurance. See INSlJRANCE. credit life insurance. See LIFE INSURANCE. credit line. See LINE OF CREDIT. credit memorandum. A document issued by a seller to a buyer confirming that the seller has credited (Le., reduced) the buyer's account because of an error, return, or allowance. credit mobilier. A company or association that carries on a banking business by making loans on the security of personal property. creditor. (15c) 1. One to whom a debt is owed; one who gives credit for money or goods. Also termed debtee. 2. A person or entity with a definite claim against another, esp. a claim that is capable of adjustment and liquidation. 3. Bankruptcy. A person or entity having a claim against the debtor predating the order for relief concerning the debtor. [Cases: Bankruptcy (;= 2822.] 4. Roman law. One to whom any obligation is owed, whether contractual or otherwise. Cf. DEBTOR. attaching creditor. A creditor who has caused an attachment to be issued and levied on the debtor's property. [Cases: Attachment C=> 16.] bond creditor. A creditor whose debt is secured by a bond. catholic creditor. Scots law. A person who has a security interest in more than one piece of the debtor's property. certificate creditor. A creditor of a municipal corpora­ tion who receives a certificate of indebtedness rather than payment because the municipality cannot pay the debt. Cf. warrant creditor.

425

conditional creditor. Civil law, A creditor who has either a future right of action or a right of action in expectancy. creditor at large. A creditor who has not established the debt by reducing it to judgment, or who has not oth­ erwise secured a lien on any of the debtor's property. See unsecured creditor. domestic creditor. A creditor who resides in the same state or country as the debtor or the debtor's property. double creditor. A creditor who has a lien on two funds. Cf. single creditor. execution creditor. A judgment creditor who has caused an execution to issue on the judgment. [Cases: Execution (;:::::0'17,] foreign creditor. A creditor who resides in a different state or country from that of the debtor or the debtor's property. gap creditor. Bankruptcy. A creditor who extends credit to, lends money to, or has a claim arise against the debtor in the period between the filing of an involun­ tary bankruptcy petition and the entry ofthe order for relief. - Under the Bankruptcy Code, a gap creditor's claim receives second priority, immediately below administrative claims. 11 USCA §§ S02(f), S07(a)(2). [Cases: BankruptcyC:;:>2833.] general creditor. See unsecured creditor. hypothetical creditor. Bankruptcy. An actual or code­ created judicial-lien creditor or bona fide purchaser who establishes a bankruptcy trustee's status under the Bankruptcy Code's priority scheme, claiming property through the debtor at the time of the bank­ ruptcy filing. II USCA § S44. - Also termed hypo­ theticallien creditor. [Cases: Bankruptcy C:;>2704, 270S.] joint creditor. A creditor who is entitled, along with another creditor, to demand payment from a debtor. judgment creditor. See JUDGMENT CREDITOR. junior creditor. A creditor whose claim accrued after that of another creditor; a creditor who holds a debt that is subordinate to another's. known creditor. A creditor whose identity or claim is either known or reasonably ascertainable by the debtor. - Known creditors are entitled to notice of the debtor's bankruptcy or corporate dissolution, as well as notice of any deadline for filing proofs of claim. lien creditor. A creditor whose claim is secured by a lien on the debtor's property. UCC § 9-102(a)(52). [Cases: Secured Transactions (;:::::0 140.] preferred creditor. A creditor with a superior right to payment, such as a holder of a perfected security interest as compared to a holder of an unsecured claim. [Cases: Secured Transactions 138-140, 168.] principal creditor. A creditor whose claim or demand greatly exceeds the claims of other creditors.

creditor dominii

prior creditor. A creditor who is given priority in payment from the debtor's assets. secondary creditor. A creditor whose claim is subordi­ nate to a preferred creditor's. secured creditor. A creditor who has the right, on the debtor's default, to proceed against collateral and apply it to the payment of the debt. UCC § 9-102-(a) (72). - Also termed secured party. '''Secured party' means (A) a person in whose favor a security interest is created or provided for under a security agreement, whether or not any obligation to be secured is outstanding; (B) a person that holds an agricultural lien: (C) a consignor; (0) a person to which accounts, chattel paper, payment intangibles, or promissory notes have been sold; or (E) if a security interest or agricultural lien is created or provided for in favor of a trustee, agent, col· lateral agent, or other representative, that representative." UCC § 9·1 02(a)(50).

single creditor. In the marshaling of assets, a creditor with a lien on one fund. See RULE OF MARSHALING ASSETS. Cf. double creditor. specialty creditor. A creditor to whom an heir is liable for a decedent's debts to the extent of the land inher­ ited.• Historically, unless the creditor obtained a judgment against the debtor before the debtor's death, the creditor's right of action on the debt was limited to the decedent's lawful heir. If the debtor devised the land to a stranger, the creditor's claim was defeated. See HEIR (1). [Cases: Descent and Distribution C:;:> 126; Executors and Administrators ".r~ ~·VJ. 'There were three exceptions to this rule that a fee simple estate was not liable to the creditors of the deceased. Debts due to the Crown and debts due to judgment creditors were enforceable against the land notwithstanding the death of the owner, and thirdly, if the fee simple tenant had in his lifetime executed a deed whereby he covenanted for himself and his heirs to pay a sum of money, the creditor (called a specialty creditor) could make the heir liable for the debt to the extent of the land which had descended to him. But this privilege of the specialty creditor was not at first enforceable against an equitable fee Simple, and it was strictly limited to a right of action against the heir of the deceased, so that the creditor was defrauded of his money If the deceased devised his land to a stranger." C.C Cheshire, Modern Law of Real Property 738 (3d ed. 1933).

subsequent creditor. A creditor whose claim comes into existence after a given fact or transaction, such as the recording of a deed or the execution of a voluntary conveyance. unsecured creditor. A creditor who, upon giving credit, takes no rights against specific property ofthe debtor, Also termed general creditor. See creditor at large. warrant creditor. A creditor ofa municipal corporation who is given a municipal warrant for the amount of the claim because the municipality lacks the funds to pay the debt. Cf. certificate creditor. [Cases: Municipal Corporations C:;:>896.] creditor beneficiary. See BENEFICIARY. creditor dominii (kred-i-tor da-min-ee-l). [Law Latin] Hist. The creditor who is entitled to ownership of an object; a secured creditor.

"Creditor dominii .... In commodate the lender is creditor of the subject. and on the bankruptcy of the borrower may vindicate his right of property and recover the subject itself ...." John Trayner. Trayner's Latin Maxims 114 (4th ed. 1894).

creditor's bill. (1826) An equitable suit in which a judgment creditor seeks to reach property that cannot be reached by the process available to enforce a judgment. - Also termed creditor's suit. [Cases: Debtor and Creditor creditor's claim. See CLAIM (5). creditors' committee. (1874) Bankruptcy. A committee comprisjng representatives of the creditors in a Chapter 11 proceeding, formed to negotiate the debtor's plan of reorganization. - Generally, a committee has no fewer than 3 and no more than 11 members and serves as an advisory body. 11 USCA § 1102. [Cases: Bankruptcy (;::::>3024.] creditors' composition. See COMPOSITION (1). creditors' meeting. See MEETING. creditors' scheme of arrangement. See

SCHEME OF

ARRANGEMENT.

creditor's suit. See CREDITOR'S BILL. credit plan. A financing arrangement under which a borrower and a lender agree to terms for a loan's repay­ ment with interest, usu. in installments. open-end credit plan. A plan under which a creditor reasonably expects repeated transactions, prescribes terms for those transactions, and includes a finance charge that may be periodically computed on the out­ standing balance. 15 USCA § 1602(i). credit rating. An evaluation of a potential borrower's ability to repay debt, prepared by a credit bureau at the request of a lender. [Cases: Credit Reporting Agencies (;::::>1-4.] credit report. 1. A credit bureau's report on a person's financial status, usu. including the approximate amounts and locations of a person's bank accounts, charge accounts, loans, and other debts, bill-paying habits, defaults, bankruptcies, foreclosures, marital status, occupation, income, and lawsuits. See CREDIT BUREAU. 2. The report of a credit-reporting bureau, usu. including highly personal information gathered through interviews with a person's friends, neigh­ bors, and coworkers. See CREDIT-REPORTING BUREAU. [Cases; Credit Reporting Agencies credit-reporting bureau. (1904) An organization that, on request, prepares investigative reports not just on people's creditworthiness but also on personal infor­ mation gathered from various sources, including inter­ views with neighbors, friends, and coworkers. - These reports are used chiefly by employers (for prospective employees), insurance companies (for applicants), and landlords (for prospective tenants). - Also termed investigating bureau. Cf. CREDIT BUREAU. [Cases: Credit Reporting Agencies (;::::> 1-4.J

creditrix (kred-;Hriks), n. [fro Latin credere "to lend, entrust"] Civil law. Archaic. A female creditor. credit sale. See SALE. credit service charge. See SERVICE CHARGE

(2).

credit-shelter trust. See bypass trust under TRUST. credit slip. A document that allows a store customer to either purchase another item or receive cash or credit for merchandise the customer has returned to the store. credit union. A cooperative association that offers low­ interest loans and other consumer banking services to persons sharing a common bond - often fellow employees and their family members. - Most credit unions are regulated by the National Credit Union Administration. State-chartered credit unions are also subject to regulation by the chartering state, and they may be regulated by state banking boards. [Cases: Building and Loan Associations C::;) 1-6,24-40.) "Credit unions were the last major thrift institutions developed in the United States .... What distinguished credit unions from mutual savings banks and savings and loan associations was their emphasis on a common bond of workers, church members, or people in a local area, wanting to borrow relatively small amounts at reasonable interest rates from each other. and help each other save to meet these short-term needs. Their goal was to provide a low interest rate alternative _.. to loan sharks and pawn­ brokers." William A. Lovett. Banking and Financial institu· tions Law in a Nutshell 284 (1997).

creditworthy, adj. (1924) (Of a borrower) financially sound enough that a lender will extend credit in the belief default is unlikely; fiscally healthy. - creditwor­ thiness, n. creeping acquisition. See ACQUISITJON. creeping tender offer. See creeping acquisition under ACQUISITION.

C reorganization. See REORGANIZATION (2). crescendo rental. See RENTAL. cretion (kree-sh;m), n. [fro Latin cernere "to decide") Roman law. 1. A method or form ofaccepting an inher­ itance by an heir who is appointed in a testament. Cretion usu. had to be declared within 100 days from the date an heir received notice of the appointment. "In the old law it was the practice to fix a time limit, usually of one hundred days, within which the heir was to make a formal acceptance, with the addition that if he failed to do so, he was to be disinherited and a substitute was to take the inheritance in his place. This formal acceptance was known as cretio from the Latin verb cernere to decide. The practice had fallen into disuse before Justinian, who formally abolished it." R.W. Lee, The Elements of Roman Law 199 (4th ed. 1956).

2. The period within which an heir might decide whether to accept an inheritance. - Also termed (in Latin) cretio (kree-shee-oh). cretionary (kree-sh;m­ er-ee), adj. crew member. See SEAMAN. CRF. abbr. CRIMINAL-REFERRAL

FORM.

crib, n. [Origin unknown] Hist. An enclosure at the side of a court where the apprentices stood to learn the law. - For a full historv ofthis term and its variants, see J.H. Baker, "The Pecu~es," in The Legal Profession and the Common Law 171, 173 (1986). Also spelled cribbe; crubbe. Also termed pecune.

cri de pais. See CRY DE PAIS. crier (krI-ar). (15c) 1. An officer ofthe court who makes public pronouncements as required by the court. Cf. BAILIFF (1). - Also termed court crier. [Cases: Courts C=>58.] 2. An auctioneer. Also spelled cryer. criez la peez (krI-eez 1.'1 pees). [Law French] Hist. Rehearsethe concord (or peace). - This phrase was used to confirm the conveyance of land by fine. The serjeant or countor in attendance read the phrase aloud in court. See FINE (1). crim. con. abbr. CRIMINAL CONVERSATION. crime. (14c) An act that the law makes punishable; the breach of a legal duty treated as the subject-matter of a criminal proceeding. - Also termed criminal wrong. See OFFENSE (1). "Understanding that the conception of Crime, as distin­ guished from that of Wrong or Tort and from that of Sin, involves the idea of injury to the State of collective com­ munity, we first find that the commonwealth, in literal conformity with the conception, itself interposed directly, and by isolated acts, to avenge itself on the author of the evil which it had suffered." Henry S. Maine, Ancient Law 320 (17th ed. 1901). "It is a curious fact that all the minor acts enumerated in the penal code of a state like, say, New York are in law called crimes, which term includes both murder and overparking. It is a strong term to use for the latter, and of course the law has for centuries recognized that there are more serious and less serious crimes. At the common law, however, only two classes were recognized, serious crimes or felonies, and minor crimes or misdemeanors." Max Radin, The Law and You 91 (1948).

administrative crime. (1943) An offense consisting ofa violation of an administrative rule or regulation that carries with it a criminal sanction.

capital crime. See capital offense under OFFENSE (1). commercial crime. (1900) A crime that affects commerce; esp., a crime directed toward the property or revenues of a commercial establishment. - Examples include robbery ofa business, embezzle­ ment, counterfeiting, forgery, prostitution, illegal gambling, and extortion. See 26 CFR § 403.38.

common-law crime. (1827) A crime that is punish­ able under the common law, rather than by force of statute. Cf. statutory crime. complainantless crime. See victimless crime.

computer crime. (1971) A crime involving the use of a computer, such as sabotaging or stealing electroni­ cally stored data. - Also termed cybercrime. [Cases: Telecommunications C=> 1342, 1348.]

consensual crime. See victimless crime. constructive crime. A crime that is built up or created when a court enlarges a statute by altering or straining

the statute's language, esp. to drawing unreasonable implications and inferences from it. - Also termed

implied crime; presumed crime. continuous crime. (1907) 1. A crime that continues after an initial illegal act has been consummated; a crime that involves ongoing elements. - An example is illegal U.S. drug importation. The criminal act is completed not when the drugs enter the country, but when the drugs reach their final destination. 2. A crime (such as driving a stolen vehicle) that continues over an extended period. Cf. instantaneous crime. corporate crime. (l934) A crime committed by a cor­ poration's representatives acting on its behalf. ­ Examples include price-fixing and consumer fraud. Although a corporation as an entity cannot commit a crime other than through its representatives, it can be named as a criminal defendant - Also termed organizational crime. Cf. occupational crime. [Cases: Corporations C=> 526.] credit-card crime. See CREDIT-CARD CRIME.

crime against nature. See SODOMY. crime against the environment. See ENVIRONMENTAL CRIME.

crime malum in se. See MALUM IN SE. crime malum prohibitum. See MALUM PROHIBITUM. crime ofomission. (I8c) An offense that carries as its material component the failure to act.

crime ofpassion. (I8c) A crime committed in the heat of an emotionally charged moment, with no oppor­ tunity to reflect on what is happening. See HEAT OF PASSION.

crime ofviolence. See violent crime.

crime without victims. See victimless crime.

cybercrime. See computer crime.

economic crime. A nonphysical crime committed to

obtain a financial gain or a professional advantage. 'There are two major styles of economic crime. The first consists of crimes committed by businessmen as an adjunct to their regular business activities. Businessmen's responsibilities give them the opportunity, for example, to commit embezzlement, to violate regulations directed at their areas of business activity, or to evade the payment of taxes. This style of economic crime is often called white­ collar crime. The second style of economic crime is the provision of illegal goods and services or the provision of goods and services in an illegal manner. Illegal provi­ sion of goods and services requires coordinated economic activity similar to that of normal business, but all of those engaged in it are involved in crime. The madam operat­ ing a brothel has many concerns identical to the manager of a resort hotel, and the distributor of marijuana must worry about the efficacy of his distribution system just as does a distributor of any other product. This type of economic crime is often called organized crime because the necessity of economic coordination outside the law leads to the formation of criminal groups with elaborate organizational customs and practices." Edmund W. Kitch, "Economic Crime," in 2 Encyclopedia of Crime and justice 670,671 (Sanford H. Kadish ed., 1983).

environmental crime. See ENVIRONMENTAL CRIME.

crime

expressive crime. A crime committed for the sake of the crime itself, esp. out of frustration, rage, or other emotion rather than for financial gain. Cf. instrumen­ tal crime. federal crime. See FEDERAL CRIME. general-intent crime. A crime that involves performing a particular act without intending a further act or a further result. [Cases: Criminal Law C'-:;)20.] hate crime. (1984) A crime motivated by the victim's race, color, ethnicity, religion, or national origin. ­ Certain groups have lobbied to expand the defini­ tion by statute to include a crime motivated by the victim's disability, gender, or sexual orientation. Cf. hate speech under SPEECH. [Cases: Civil Rights 1808; Sentencing and Punishment (.=70, 753.J high crime. (17c) A crime that is very serious, though not necessarily a felony. _ Under the U.S. Constitu­ tion, a government officer's commission of a "high crime" is, along with treason and bribery, grounds for removal from office. U.S. Const. art. II, § 4. See IMPEACHABLE OFFENSE.

honor crime. A crime motivated by a desire to punish a person who the perpetrator believes has injured a person's or group's sense of honor. - The term is most often applied to crimes committed against Muslim women by members oftheir own families for behavior that leads to perceived social harm, esp.loss of family honor. The term also extends to non-Muslims and covers many acts ofviolence, including assault, rape, infanticide, and murder. When the crime involves a death, it is also termed honor killing. implied crime. See constructive crime.

inchoate crime. See inchoate offense under OFFENSE

(1).

index crime. See index offense under OFFENSE (1). infamous crime (in-f"-m,,s). (16c) 1. At common law, a crime for which part of the punishment was infamy, so that one who committed it would be declared ineli­ gible to serve on a jury, hold public office, or testify. - Examples are perjury, treason, and fraud. [Cases: Jury (;=;;45; Officers and Public Employees (;:= 31.] 2. A crime punishable by imprisonment in a peni­ tentiary. - The Fifth Amendment requires a grand­ jury indictment for the prosecution of infamous (or capital) crimes, which include all federal felony offenses. See indictable offense under OFFENSE (1). cr. noninfamous crime. "At common law an infamous crime was one ... inconsis· tent with the common principles of honesty and humanity. Infamous crimes were treason, felony, all offenses found in fraud and which came within the general notion of the crimen falSi of the Civil law, piracy, swindling, cheating, barratry, and the bribing of a witness to absent himself from a trial, in order to get rid of his evidence." Justin Miller, Handbook ofCriminai Law § 8, at 25 (1934).

instantaneous crime. (1887) A crime that is fully completed by a single act, as arson or murder, rather than a series of acts. - The statute of limitations

428

for an instantaneous crime begins to run with its completion. Cf. continuous crime. instrumental crime. A crime committed to further another end or result; esp., a crime committed to obtain money to purchase a good or service. Cf. expressive crime.

international crime. See INTERNATIONAL CRIME. major crime. See FELONY (1). noninfamous crime. A crime that does not qualify as an infamous crime. Cf. infamous crime. occupational crime. A crime that a person commits for personal gain while on the job. Cf. corporate crime. organizational crime. See corporate crime. organized crime. See ORGANIZED CRIME. personal-condition crime. See status crime. personal crime. A crime (such as rape, robbery, or pick­ pocketing) that is committed against an individual's person. political crime. See POLITICAL OFFENSE. predatory crime. A crime that involves preying upon and victimizing individuals. - Examples include robbery, rape, and carjacking. preliminary crime. See inchoate offense under OFFENSE (1).

presumed crime. See constructive crime. quasi-crime. (18c) Hist. 1. An offense not subject to criminal prosecution (such as contempt or violation of a municipal ordinance) but for which penalties or forfeitures can be imposed. _ The term includes offenses that give rise to qui tam actions and forfei­ tures for the violation of a public duty. 2. An offense for which someone other than the actual perpetrator is held liable, the perpetrator being presumed to act on the command of the responsible party. See quasi­ delict (1) under DELICT. serious crime. 1. See serious offense under OFFENSE (1). 2. See FELONY (1). signature crime. (1974) A distinctive crime so similar in pattern, scheme, or modus operandi to previous crimes that it identifies a particular defendant as the perpetrator. [Cases: Criminal Law C=' 369.15.] spontaneous crime. A criminal act that occurs suddenly and without premeditation in response to an unfore­ seen stimulus. - For example, a husband who dis­ covers his wife in bed with another man and shoots him could be said to have committed an effectively spontaneous crime. status crime. (1961) A crime ofwhich a person is guilty by being in a certain condition or of a specific char­ acter. - An example of a status crime is vagrancy. ­ Also termed status offense; personal-condition crime. [Cases: Criminal Law~26.J statutory crime. (1940) A crime punishable by statute. Cf. common-law crime. [Cases: Criminal Law (:::'::, 21.1

429

crimen

street crime. (1966) A crime generally directed against a person in public, such as mugging, theft, or robbery. Also termed visible crime. strict-liability crime. A crime that does not require a mens rea element, such as traffic offenses and illegal sales of intoxicating liquor. [Cases: Criminal Law Cc'=' 21.] substantive crime. See substantive offense under OFFENSE (1). vice crime. A crime of immoral conduct, such as gambling or prostitution. victimless crime. (1964) A crime that is considered to have no' direct victim, usu. because only consenting adults are involved. - Examples are possession of illicit drugs and deviant sexual intercourse between consenting adults. Also termed consensual crime; crime without victims; complainantless crime. "When a man's house has been robbed or his brother murdered, he is likely to take this complaint vigorously to the police and demand action. His presence on the scene dramatizes the need for law enforcement and gives sense and purpose to the work of the police and district attorney. In contrast, the absence of a prosecuting witness surrounds 'crimes without victims' with an entirely different atmo­ sphere. Here it is the police who must assume the initiative. If they attempt to work without the aid of informers, they must resort to spying, and this spying is rendered all the more distasteful because what is spied upon 15 sordid and pitiable." Lon L. Fuller, Anatomy of the Law44 (1968).

violent crime. (18c) A crime that has as an element the use, attempted use, threatened use, or substan­ tial risk of use of phYSical force against the person or property of another. 18 USCA § 16; USSG § 2El.3. Also termed crime of violence. visible crime. See street crime.

war crime. See WAR CRIME.

white-collar crime. See WHITE-COLLAR CRIME.

crime against humanity. Int'llaw. A brutal crime that is not an isolated incident but that involves large and systematic actions, often cloaked with official author­ ity, and that shocks the conscience of humankind. ­ Among the specific crimes that fall within this category are mass murder, extermination, enslavement, depor­ tation, and other inhumane acts perpetrated against a population, whether in wartime or not. See Statute of the International Criminal Court, art. 3 (37 ILM 999). crime against international law. See CRIME AGAINST THE LAW OF NATIONS. crime against peace. Int'llaw. An international crime in which the offenders plan, prepare, initiate, or wage a war ofaggression or a war in violation of international peace treaties, agreements, or assurances. crime against the law of nations. Int'llaw. L A crime punishable under internationally prescribed criminal law or defined by an international convention and required to be made punishable under the criminal law of the member states. 2. A crime punishable under international law; an act that is internationally agreed

to be of a criminal nature, such as genocide, piracy, or engaging in the slave trade. - Also termed crime against international law. crime against the person. See CRIMES AGAINST PER­ SONS. crime-fraud exception. (1973) The doctrine that neither the attorney-client privilege nor the attorney-work­ product privilege protects attorney-client communi­ cations that are in furtherance of a current or planned crime or fraud. Clark v. United States, 289 U.S. 1, 53 S.Ct. 465 (1933); In re Grand Jury Subpoena Duces Tecum, 731 F.2d 1032 (2d Cir. 1984). [Cases: Criminal Law (;:J627.5(6); Federal Civil Procedure (;:::,1604(1); Pretrial Procedure Privileged Communications and Confidentiality ~ 154.] crime insurance. See INSURANCE. crime malum in se. See MALUM IN SE. crime malum prohibitum. See MALUM PROHIBITUM. crimen (krI-man), n. [Latin]l. An accusation or charge of a crime. 2. A crime. PI. crimina (krim-a-na). crimen expilatae hereditatis (krI-mm eks-p.:>-lay-tee ha-red-i-tay-tis). Roman law. A false claimant's willful spoliation of an inheritance. crimen falsi (krI-man fal-51 or fawl-sI). [Latin "the crime of falSifying") 1. A crime in the nature of perjury. - Also termed falsum. 2. Any other ofiense that involves some element of dishonesty or false statement. See Fed. R. Evid. 609(a)(2). [Cases: Wit­ nesses (;:J 337(12).] "The starting point [for perjury] seems to have been the so-called crimen falSi, -- crime of falsifying. In the begin­ ning, perhaps, one convicted of perjury was deemed too untrustworthy to be permitted to testify in any other case, and the idea grew until the term 'crimen falsI' included any crime involving an element of deceit. fraud or corruption." Rollin M. Perkins & Ronald N. Boyce, Criminal Law 26 (3d ed.1982).

crimen feloniae imposuit (kn-m.:>n fa-Ioh-nee-ee im-poz-ya-wit). To accuse or charge with a felony. crimenfurti (kn-man far-tr). [Latin "the crime of stealing") See THEFT. crimen incendii (krI-man in-sen-dee-r). [Latin "the crime of burning"] See ARSON. crimen innominatum (krI-man i-nom-a-nay-tam). [Latin "the nameless crime"] See SODOMY. crimen majestatis (kri-man maj-.:>-stay-tis). [Latin "crime against majesty"] Hist. High treason; any crime against the king's person or dignity; LESE MAJESTY. - Under Roman law, crimen majestatis denoted any enterprise by a Roman citizen or other person against the republic or the emperor. Also termed crimen laesae majestatis. See LESE MAJESTY. 0: PERDUELLIO. crimen plagii (krI-man play-jee-r). [Latin] Roman law. See PLAGIUM. crimen raptus (krI-man rap-tas). [Latin "the crime of rape") See RAPE.

crimen repetundarum (kn-mitn rep-it-t;,n-dair-;,m). [Latin "accusation of (money) to be repaid"] Roman law. 1. A charge ofextortion brought against a Roman provincial governor. 2. Any act of misgovernment or oppression on the part of a magistrate or official. crimen roberiae (kn-mitn rit-beer-ee-ee). [Latin "the crime of robbery"] ROBBERY. crime of omission. See CRIME. crime of passion. See CRIME. crime ofviolence. See violent crime under CRIME. crimes against persons. (1827) A category of criminal offenses in which the perpetrator uses or threatens to use force .• Examples include murder, rape, aggravated assault, and robbery. - Also termed crimes against the person. Cf. offense against the person under OFFENSE

only during periods of intense stress, as in the heat of passion. habitual criminal. See RECIDIVIST. state criminal. 1. A person who has committed a crime against the state (such as treason); a political criminal. 2. A person who has committed a crime under state law. criminal action. See ACTION (4). criminal anarchy. See ANARCHY. criminal anthropology. See CRIMINOLOGY. criminal assault. See ASSAULT. criminal attempt. See ATTEMPT. criminal bankruptcy. See bankruptcy fraud under

(1). crimes against property. (1827) A category of criminal offenses in which the perpetrator seeks to derive an unlawful benefit from or do damage to - another's property without the use or threat offorce .• Examples include burglary, theft, and arson (even though arson may result in injury or death). - Also termed property crimes. Cf. offense against property under OFFENSE (1). crimes against the person. See CRIMES AGAINST

criminal battery. See BATTERY (1). criminal behavior. Conduct that causes social harm and is defined and punished by law. criminal capacity. See CAPACITY (3). criminal charge. See CHARGE (1). criminal code. See PENAL CODE. criminal coercion. See COERCION. criminal conspiracy. See CONSPIRACY. criminal contempt. See CONTEMPT. criminal conversation. Archaic. A tort action for adultery, brought by a husband against a third party who engaged in sexual intercourse with his wife .• Criminal conversation has been abolished in most jurisdictions. - Abbr. crim. con. See HEARTBALM STATUTE. [Cases: Husband and Wife 3.5; Criminal LawC=74.J criminal-referral form. A form once required by federal regulatory authorities (from 1988 to 1996) for reporting every instance when a bank employee or affiliate com­ mitted or aided in committing a crime such as credit­ card fraud, employee theft, or check-kiting.• This form, like the suspicious-transaction report, has since been superseded by the suspicious-activity report. Abbr. CRF. See SUSPICIOUS-ACTIVITY REPORT. criminal registration. See REGISTRATION (1). criminal responsibility. 1. See RESPONSIBILITY (2). 2. See RESPONSIBILITY (3). criminal sanction. See SANCTION. criminal science. (1891) The study of crime with a view to discovering the causes ofcriminality, devising the most effective methods of reducing crime, and perfecting the means for dealing with those who have committed crimes.• The three main branches of criminal science are criminology, criminal policy, and criminal law. criminal sexual conduct in the first degree. See FIRST­ DEGREE SEXUAL CONDUCT.

criminal solicitation. See SOLICITATION (2). criminal statute. See STATUTE. criminal syndicalism. See SYNDICALISM. criminal term. See TERM (5). criminal trespass. See TRESPASS. criminal wrong. See CRIME. criminate, vb. See INCRIMINATE. crimination (krim-27.] physical cruelty. (1874) As a ground for divorce, actual personal violence committed by one spouse against the other. [Cases: Divorce (;:::::>27(3, 6).] cruelty to a child. See child abuse under ABUSE. cruelty to children. See child abuse under ABUSE. Crummey power. The right of a beneficiary of a Crummey trust to withdraw gifts made to the trust up to a maximum amount (often the lesser of the annual exclusion or the value of the gift made to the trust) for a certain period after the gift is made.• The precise characteristics of a Crummey power are established by the settlor of a Crummey trust. Typically, the power is exercisable for 30 days after the gift is made and permits withdrawals up to $5,000 or 5% ofthe value of the trust. A beneficiary may allow the power to lapse without making any demand for distribution. See Crummey trust under TRUST; annual exclusion under EXCLUSION. [Cases: Trusts (:::;)270.J Crummey trust. See TRUST. cry de pais (kn da pay). [Law French] Hist. The cry of the country.• The hue and cry after an offender, as raised by the country (I.e., the people). Also spelled cri de pais. See HUE AND CRY (1). cryer. See CRIER.

435

culpa levis in concreto

CSAAS. abbr. CHILD-SEXUAL-ABUSE-ACCOMMODATION SYNDROME. CSE agency. abbr. CHILD-SUPPORT-ENFORCEMENT AGENCY. CSREES. abbr. COOPERATIVE STATE RESEARCH, EDUCA­ TION, AND EXTENSION SERVICE. CSV. See cash surrender value under VALUE (2). c.t.a. abbr. See administration cum testamento annexo under ADMINISTRATION. Ct. Cl. abbr. Court of Claims. See UNITED STATES COURT OF FEDERAL CLAIMS. cucking stool. See CASTIGATORY.

cui ante divortium (kr [or kWI or kwee] an-tee d27.] curtiles terrae (kar-tI-leez ter-ee). [Law Latin]See COURT LANDS.

curtillium (br-til-ee-969.] Also termed custody interference. custodial interrogation. See INTERROGATION. custodial parent. See PARENT. custodial responsibility. Family law. Physical child custody and supervision, usu. including overnight responsibility for the child .• This term encompasses visitation and sole, joint, and shared custody. Both parents share responsibility for the child regardless of the amount of time they spend with the child. See CUSTODY.

custody

custodial trust. See TRUST. custodian, n. 1. A person or institution that has charge or custody (of a child, property, papers, or other valu­ ables); GUARDIAN. • In reference to a child, a custodian has either legal or physical custody. See CAREGIVER. 2. Bankruptcy. A prepetition agent who has taken charge ofany asset belonging to the debtor. 11 USCA § 101(11). [Cases: Bankruptcy (;:::=>2021.1.] custodianship, n. custodian bank. See BANK. custodia terrae et haeredis. See DE CUSTODIA TERRAE ET HAEREDIS.

custody, n. (15c) 1. The care and control of a thing or person for inspection, preservation, or security. constructive custody. (1822) Custody of a person (such as a parolee or probationer) whose freedom is con­ trolled by legal authority but who is not under direct phYSical controL penal custody. Custody intended to punish a criminal offender. [Cases: Escape physical custody. See PHYSICAL CUSTODY (1). preventive custody. (1976) Custody intended to prevent further dangerous or criminal behavior. protective custody. (1929) 1. The government's con­ finement of a person for that person's own security or well-being, such as a witness whose safety is in jeopardy or an incompetent person who may harm him- or herself or others. [Cases: Witnesses (;:::=>20.] 2. Family law. An arrangement intended to protect a child from abuse, neglect, or danger whereby the child is placed in the safety of a foster family after being removed from a home or from the custody of the person previously responsible for the child>scare. [Cases: Infants (;:::=>226.] 3. An arrangement made by law-enforcement authorities to safeguard a person in a place other than the person's home because of criminal threats to harm the person. 2. Family law. The care, control, and maintenance of a child awarded by a court to a responsible adult. - Custody involves legal custody (decision-making authority) and physical custody (caregiving author­ ity), and an award of custody usu. grants both rights. In a divorce or separation proceeding between the parents, the court usu. awards custody to one of them, unless both are found to be unfit, in which case the court may award custody to a third party, typically a relative. In a case involving parental dereliction, such as abuse or neglect, the court may award custody to the state for placing the child in foster care ifno responsible relative or family friend is willing and able to care for the child. - Also termed child custody; legal custody; managing conservatorship; parental functions. See managing conservator (2) under CONSERVATOR; PAR­ ENTING PLA~. [Cases: Child Custody (;:=:> 1.] divided custody. (1905) An arrangement by which each parent has exclusive physical custody and full control of and responsibility for the child part of the time, with visitation rights in the other parent.

custody decree

- For example, a mother might have custody during the school year, and the father might have custody during the summer vacation. [Cases: Child Custody (:::;' 21O.J

joint custody. (1870) An arrangement by which both parents share the responsibility for and authority over the child at all times, although one parent may exercise primary physical custody. - In most juris­ dictions, there is a rebuttable presumption that joint custody is in the child's best interests. JOint-custody arrangements are favored unless there is so much ani­ mosity between the parents that the child or children will be.adversely affected by a joint-custody arrange­ ment. An award of joint custody does not necessar­ ily mean an equal sharing of time; it does, however, mean that the parents will consult and share equally in the child's upbringing and in decision-making about upbringing. In a joint-custody arrangement, the rights, privileges, and responsibilities are shared, though not necessarily the physical custody. In a joint-custody arrangement, physical custody is usu. given to one parent. In fact, awards of joint physical custody, in the absence of extraordinary circum­ stances, are usu. found not to be in the best inter­ ests of the child. - Also termed shared custody; joint managing conservatorship. [Cases: Child Custody (:::;' 120-155.] "The statutes, and the cases as well, differ over the defini­ tion of joint custody. It is most often defined as meaning only that both parents will share in the decisions concern­ ing the child's care, education, religion, medical treat­ ment and general welfare." Homer H. Clark Jr.. The Law of Domestic Relations in the United States § 19.5. at 815 (2d ed. 1988).

legal custody. 1. CUSTODY (2). 2. CUSTODY (3). 3. The authority to make Significant decisions on a child's behalf, including decisions about education, religiOUS training, and healthcare. [Cases: Child Custody (;= 100-107.J

physical custody. 1. PHYSICAL CUSTODY (2). 2. PHYSICAL CUSTODY (3). residential custody. See PHYSICAl. CUSTODY (2). shared custody. See joint custody. sole custody. (1870) An arrangement by which one parent has full control and sole decision-making responsibility - to the exclusion ofthe other parent on matters such as health, education, religion, and living arrangements. [Cases: Child Custody 1, 100-107,100-107,27.]

split custody. An arrangement in which one parent has custody of one or more children, while the other parent has ~ustody of the remaining children. _ Split custody is fairly uncommon, since most jurisdictions favor keeping siblings together. [Cases: Child Custody 0;>27.] 3. The detention of a person by virtue oflawful process or authority. - Also termed legal custody. [Cases: Arrest (:::;'68(3).] - custodial, adj. custody decree. See DECREE.

442

custody determination. Family law. A court order deter­ mining custody and visitation rights. _ The order typi­ cally does not include any instructions on child support or other monetary obligations. [Cases: Child Custody (;=511,530.] custody evaluation. See HOME-STUDY REPORT. custody hearing. See HEARING. custody interference. See CUSTODIAl. INTERFERENCE. custody of the law. (17c) The condition of property or a person being under the control oflegal authority (as a court or law officer). See IN CUSTODIA tEGIS. custody proceeding. Family law. An action to determine who is entitled to legal or physical custody of a child. _ Legal custody gives one the right to make Significant decisions regarding the child, and physical custody gives one the right to physical care and control of the child. See CUSTODY; custody hearing under HEARING. [Cases: Child Custody C--::::401.] custom, n. (13c) 1. A practice that by its common adoption and long, unvarying habit has come to have the force oflaw. See USAGE. [Cases: Customs and Usages G-~ 1.] - customary, adj. conventional custom. A custom that operates only indirectly through the medium of agreements, so that it is accepted and adopted in individual instances as conventional law between the parties to those agree­ ments. - Also termed usage. See USAGE. general custom. 1. A custom that prevails throughout a country and constitutes one of the sources of the law ofthe land. [Cases: Customs and Usages 2. A custom that businesses recognize and follow. See trade usage under USAGE. legal custom. A custom that operates as a binding rule oflaw, independently of any agreement on the part of those subject to it. - Often shortened to custom. local custom. A custom that prevails in some defined locality only, such as a city or county, and constitutes Also termed a source of law for that place only. particular custom; special custom. [Cases: Customs and Usages (:::;' 1-22.] 2. (pl.) Duties imposed on imports or exports. 3. (pl.) The agency or procedure for collecting such duties. customal, n. See CUSTOMARY. custom and usage. General rules and practices that have become the norm through unvarying habit and common use. Cf. CUSTOM (1); USAGE. [Cases: Customs and Usages (:::;' 1-22.] customary, n. (16c) A record of all the established legal and quasi-legal practices within a community. Also termed custumal; customal. customary court baron. See COURT BARON.

customary dispatch. See DISPATCH.

customary estate. See COPYHOLD.

customary freehold. See COPYHOLD.

customary international law. See INTERNATIONAL LAW.

443

cyberlaw

customary interpretation. See INTERPRETATION. customary law. (16c) Law consisting of customs that are accepted as legal requirements or obligatory rules of conduct; practices and beliefs that are so vital and intrinsic a part of a social and economic system that they are treated as if they were laws. - Also termed consuetudinary law. "In contrast with the statute, customary law may be said to exemplify implicit law. Let us, therefore, describe custom· ary law in terms that will reveal to the maximum this quality of implicitness. A custom is not declared or enacted, but grows or develops through time. The date when it first came into full effect can usually be assigned only within broad limits. Though we may be able to describe in general the class of persons among whom the custom has come to prevail as a standard of conduct, it has no definite author; there is no person or defined human agency we can praise or blame for its being good or bad. There is no authoritative verbal declaration of the terms of the custom; it expresses itself not in a succession of words, but in a course of conduct." Lon L. Fuller, Anatomy of the Law 71 (1968).

customary seisin. See quasi-seisin under SEISIN. customary tenant. See TENANT. customers' goods. See GOODS. customer's man. See registered representative under REP­ RESENTATIVE.

customer's person. See registered representative under REPRESENTATIVE.

customhouse. A building or office, esp. at a port, where duties or customs are collected and where ships are cleared for entering or leaving the port. - Also spelled customshouse. customhouse broker. See BROKER. custom of York. See YORK, CUSTOM OF. Customs and Patent Appeals, Court of. See COURT OF CUSTOMS AND PATENT APPEALS.

customs broker. See customhouse broker under BROKER. Customs Cooperation Council. A specialized inter­ governmental organization for the study of customs questions.• Established in 1952, the Council has its headquarters in Brussels. - Abbr. CCc. Customs Court, U.S. See UNITED STATES CUSTOMS COURT.

customs duty. See DUTY (4). customs frontier. Int'llaw. The territorial boundary at which a country imposes customs duties. customshouse. See CUSTOMHOUSE. customs union. Int'l law. A combination of two or more countries within a single customs area with a common external tariff, though each participating country remains politically independent. • The effect is that tariffs originally levied on the traffic of goods between those countries are abolished or else succes­ sively dismantled according to an agreed-upon scheme, and that common tariffs are imposed on imports from nonmembers.

custos (k;)s-tahs also k;)s-t;)s). [Latin] Hist. A keeper, pro­ tector, or guardian. Custos Brevium (k;)s-tahs bree-vee-;)m). [Law Latin "keeper of the writs"] Hist. A clerk who receives and files the writs returnable to the Courts of King's Bench and Common Pleas.• The office was abolished in 1837. - Also termed Keeper of the Briefs. custos maris (k;)s-tahs mar-is). [Law Latin "warden ofthe sea"] Hist. A high-ranking naval officer; an admiral. ­ Also termed seaward; seward. custos morum (k;)s-tahs mor-dm). [Law Latin] Custodian of morals . • This name was some­ times used in reference to the Court of King's Bench. "[H]e [Viscount Simonds] approved the assertion of Lord Mansfield two centuries before that the Court of King's Bench was the custos morum of the people and had the superintendency of offences contra bonos mores." Patrick Devlin, The Enforcement of Morals 88 (1968).

custos placitorum coronae (k;)s-tahs plas-;)-tor-dm kd-roh-nee). [Law Latin] See CORONATOR. Custos Rotulorum (k;)s-tahs roch-p-lor-dm or rot-Yd­ lor-dm). [Law Latin "keeper of the pleas of the Crown"] Hist. The principal justice of the peace in a county, responsible for the rolls of the county sessions of the peace. - Also termed Keeper of the Rolls. Custos Sigilli. See KEEPER OF THE GREAT SEAL. custos spiritualium (k;)s-tahs spir-i-choo-ay-Iee-;)m or -tyoo-ay-Iee-;)m). [Law Latin "keeper of the spirituali­ ties"] Eccles. law. A member of the clergy responsible for a diocese's spiritual jurisdiction during the vacancy of the see. custos terrae (k;)s-tahs ter-ee). [Law Latin "keeper of the land"] Hist. Guardian, warden, or keeper of the land. custuma (k;)s-chd-md or k;)S-tp-md). [French coustum "toll" or "tribute"] Hist. A duty or impost. custumal, n. See CUSTOMARY. cutoff date. See DATE. cutpurse. Hist. A person who steals by cutting purses; a pickpocket. CVA. abbr. United States Court of Veterans Appeals. See UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS.

CVSG. abbr. A call for the view of the Solicitor General­ an invitation from the U.S. Supreme Court for the Solicitor General's views on a pending petition for writ of certiorari in a case in which, though the government is not a party, governmental interests are involved. Cwth. abbr. COMMONWEALTH (4). CXT. abbr. See common external tariff under TARIFF (2). cybercrime. See computer crime under CRIME. cybedaw (sI-bdr-law). (1994) The field oflaw dealing with the Internet, encompassing cases, statutes, regulations, and disputes that affect people and businesses interact­ ing through computers.• Cyberlaw addresses issues of online speech and business that arise because of the

nature of the medium, including intellectual property rights, free speech, privacy, e-commerce, and safety, as well as questions ofjurisdiction. - Also termed cyber­ space law. "Much of the hoopla about 'cyberspace law' relates more to climbing the steep learning curve of [the Internet'sl tech· nological complexities than to changes in fundamental legal principles. To the extent there was 'new' law, it was almost entirely case·by-case development, in accordance with accepted and well·understood basic legal principles, albeit applied to new technology and new circumstances." Jay Dratler Jr., Cyberlaw § 1.01, at 1·3 (2001).

cyberpatent. See business-method patent and Internet patent under PATENT (3). cyberpayment. A transfer of money over the Internet, usu. through a payment service. - Also termed Internet payment. cyberpiracy. Trademarks. The act of registering a well­ known name or mark (or one that is confusingly similar) as a website's domain name, usu. for the purpose of deriving revenue .• One form of cyber­ piracy is cybersquatting. Another is using a similar name or mark to mislead consumers. For example, a site called Nikee.com that sells Nikee branded athletic shoes and sporting goods would draw customers away the famous Nike brand. [Cases: Trademarks C=o 1490­ 1503.] - cyberpirate, n. cyberspace law. See CYBERLAW. cybersquatting. (1997) The act of reserving a domain name on the Internet, esp. a name that would be associ­ ated with a company's trademark, and then seeking to profit by selling or licensing the name to the company that has an interest in being identified with it .• The practice was banned by federal law in 1999. See ANTI­ CYBERSQUATTING CONSUMER PROTECTION ACT. [Cases: Telecommunications C=o 1333.] cyberstalking. (1995) The act of threatening, harass­ ing, or annoying someone through multiple e-mail messages, as through the Internet, esp. with the intent of placing the recipient in fear that an illegal act or an injury will be inflicted on the recipient or a member of the recipient's family or household. cyberterrorism. See TERRORISM. cybertheft. (1994) The act of using an online computer service, such as one on the Internet, to steal someone else's property or to interfere with someone else's use and enjoyment of property.• Examples of cybertheft are hacking into a bank's computer records to wrong­ fully credit one account and debit another, and interfer­ ing with a copyright by wrongfully sending protected material over the Internet. [Cases: Telecommunications C=o461.15.]

cyclical (sI-kl;l-bl or sik-l;l-bl), ad}. (Of a stock or an industry) characterized by large price swings that occur because of government policy, economic conditions, and seasonal changes. cy pres (see pray or SI). [Law French "as near as"] (1885) 1. The equitable doctrine under which a court reforms a written instrument with a gift to charity as closely to the donor's intention as possible, so that the gift does not fail. • Courts use cy pres esp. in construing charitable gifts when the donor's original charitable purpose cannot be fulfilled. It is also used to distrib­ ute unclaimed portions of a class-action judgment or settlement funds to a charity that will advance the interests of the class. More recently, courts have used cy pres to distribute class-action-settlement funds not amenable to individual claims or to a meaningful pro rata distribution to a nonprofit charitable organization whose work indirectly benefits the class members and advances the public interest. Cf. DOCTRINE OF APPROX­ IMATION. [Cases: Charities C=o37; Deposits in Court C=oll.] "The cy pres doctrine has been much discussed, if not a little severely criticised, and in many cases misunder­ stood .... The cy pres doctrine is one under which Courts of Chancery act, when a gift for charitable uses cannot be applied according to the exact intention of the donor. In such cases the courts will apply the gift, as nearly as possible (cy pres) in conformity with the presumed general intention of the donor; for it is an established maxim in the interpretation of wills, that a court is bound to carry the will into effect if it can see a general intention consistent with the rules of law, even if the particular mode or manner pointed out by the testator cannot be followed." George T. Bispham, The Principles ofEquity§ 104, at 113-14 (11th ed.1931). "Although the reason for the adoption of the cy pres rule by the English chancery court in the middle ages is not known, various hypotheses as to the motives of the court have been suggested. The most plausible theory is that the chancellors, being ecclesiastics and trained in Roman law, resurrected this civil law doctrine in order to save gifts made for religious purposes and thereby subject the property to church control. Justification for the use of the doctrine was laid on the shoulders of the donor, the idea being that since the object of the testator in donating the money to charity was to obtain an advantageous position in the kingdom of heaven, he ought not to be frustrated in this desire because of an unexpected or unforeseen failure." Edith L. Fisch, The Cy Pres Doctrine in the United States 4 (1950).

2. A statutory provision that allows a court to reform a will, deed, or other instrument to avoid violating the rule against perpetuities. See RULE AGAINST PERPETU­ ITIES. [Cases: Perpetuities C=o4(22).] cyrographarius (sI-roh-gp-fair-ee-;ls). [Law Latin] Hist. See CHIROGRAPH (4). cyrographum (sI-rog-r;l-bm). [Law Latin] See CHIRO­ GRAPH (2).

D

D. abbr. 1. DISTRICT. 2. DEFENDANT. 3. DIGEST. D.A. abbr. 1. DISTRICT ATTORNEY. 2. See deposit account under ACCOUNT. dactylography (dak-td-Iog-rd-fee), n. The scientific study of fingerprints as a method of identification. Also termed dactyloscopy. dactylographic (dak-til-d­ graf-ik), a'dj. dactyloscopy. See DACTYLOGRAPHY. DAF. abbr. DELIVERED AT FRONTIER. dailia. See DALUS. dailus. See DALUS. daily balance. (1859) The final daily accounting for a day on which interest is to be accrued or paid. average daily balance. The average amount of money in an account (such as a bank account or credit-card account) during a given period.• This amount serves as the basis for computing interest or a finance charge for the period. daily newspaper. See NEWSPAPER. daisy chain. A series ofpurchases and sales of the same stock by a small group of securities dealers attempting to drive up the stock's price to attract unsuspecting buyers' interest .• Once the buyers have invested (Le., are caught up in the chain), the traders sell for a qUick profit, leaving the buyers with overpriced stock. This practice is illegaL dalus (day-IdS), n. [Law Latin "a dale"] Hist. 1. A dale; a ditch. 2. A measure ofland being a thin strip ofpasture between two plowed furrows. Also termed dailus; dailia. damage, adj. Of or relating to monetary compensation for loss or injury to a person or property . - Also termed damages . Cf. DAMAGES. damage, n. (l4c) Loss or injury to person or property . damage-deer (dam-ij kIeer), n. [fro Latin damna cleri­ corum "clerk's compensation"] Hist. A set fee payable by a plaintiff to the Court of the Common Pleas, King's Bench, or Exchequer before execution on an award of damages.• The fee -later abolished by statute was originally a gratuity to the court clerks for preparing special pleadings. - Also spelled damage cleere. Also termed damna clericorum.

the plaintiff was obliged to pay to the prothonotary, or chief officer of that court, wherein they were recovered before he could have execution for them. But this is taken away by 17 Car. 2, c. 6." Termes de fa Ley 141 (lst Am. ed. 1812).

damage feasant (dam-ij fez-dnt orfee-zdnt), n. [fro French faisant dommage] Hist. Doing damage .• This phrase usu. refers to injury to a person's land caused by another person's animals trespassing on the property and eating the crops or treading the grass. By law, the owner of the damaged property could distrain and impound the animals until compensated by the animals' owner. But the impounder had to feed the animals and could not sell or harm them. The term was introduced during the reign of Edward III. Also spelled damage faisant. ­ Also termed damnum facientes. damage rule. See LEGAL-INJURY RULE. damages, n. pI. (l6c) Money claimed by, or ordered to be paid to, a person as compensation for loss or injury . damage, adj.

"Damages are the sum of money which a person wronged is entitled to receive from the wrongdoer as compensa­ tion for the wrong." Frank Gahan, The Law of Damages 1 (1936).

accumulative damages. Statutory damages allowed in addition to amounts available under the common law. Also termed enhanced damages. actual damages. (18c) An amount awarded to a com­ plainant to compensate for a proven injury or loss; damages that repay actual losses. Also termed com­ pensatory damages; tangible damages; real damages. [Cases: Damages ~) 15.J added damages. See punitive damages. additional damages. Damages usu. provided by statute in addition to direct damages .• Additional damages can include expenses resulting from the injury, con­ sequential damages, or punitive damages. benefit-of-the-bargain damages. (1955) Damages that a breaching party to a contract must pay to the aggrieved party, equal to the amounts that the aggrieved party would have received, including profits, ifthe contract had been fully performed. Also termed loss-oJ-bar­ l17; Fraud gain damages. [Cases: Damages 59(2).] compensatory damages (kdm-pen-sd-tor-ee). (1817) 1. Damages sufficient in amount to indemnify the "Damage cleere, damna clericorum, was assessed by the injured person for the loss suffered. Often short­ tenth part in the common pleas, and by the twentieth part ened to 2. See actual damages. [Cases: in the king's bench and exchequer, of all damages, exceed­ ing five marks, recovered either by verdict, confeSSion, Damages or judgment of the court, in all actions upon the case, consequential damages. 07c) Losses that do not flow covenant. trespass, battery, false imprisonment, dower, directly and immediately from an injurious act but and all others, wherein the damages were uncertain. which

that result indirectly from the act. - Also termed indirect damages. [Cases: Damages C=' 15-25.] contemptuous damages. See nominal damages. continuing damages. 1. Ongoing damages arising from the same injury. 2. Damages arising from the repeti­ tion of similar acts within a definite period. cosmetic damages. The amount awarded to compensate for personal disfigurement. damages for lost expectations. See expectation dama­ ges. damages ultra (;)}-tr;). Additional damages claimed by a plaintiff who is not satisfied with the amounts the defendant paid into court. direct damages. See general damages. discretionary damages. Damages (such as mental anguish or pain and suffering) that are not precisely measurable but are determined by the subjective judgment of a jury. - Also termed indeterminate damages. double damages. Damages that, by statute, are twice the amount that the fact-finder determines is owed or twice the amount of actual damages awarded .• In some cases, double damages are awarded in addition to actual damages, so the effect is the same as treble damages. [Cases: Damages C='227.] enhanced damages. 1. See accumulative damages. 2. Patents. Damages for patent infringement in an amount up to three times that of compensatory damages, at the discretion of the court, based on the egregiousness of the defendant's conduct, including the willfulness of the infringement. 35 VSCA § 284. [Cases: Patents C='319(3).] estimated damages. See liquidated damages. excess damages. Damages awarded to an insured ­ beyond the coverage provided by an insurance policy - because the insurer did not settle the claim within policy limits.• If the insurer acted in bad faith in not settling, the insured may have a claim to recover the excess damages from the insurer. - Also termed excess-liability damages. [Cases: Insurance C='3350.] excessive damages. A jury award that grossly exceeds the amount warranted by law based on the facts and circumstances of the case; unreasonable or outra­ geous damages, which are subject to reduction by remittitur. See REMITTITUR. [Cases: Damages (::::> 127-140.] exemplary damages. See punitive damages. expectation damages. (1939) Compensation awarded for the loss of what a person reasonably anticipated from a transaction that was not completed. - Also termed expectancy damages; lost-expectation damages; damages for lost expectations. [Cases: Damages (::::> 23.] fee damages. Damages awarded to the owner of property abutting an elevated railrhist

oad for injury caused by the railroad's construction and operation.• The term is used because the damage is to the property owner's easements of light, air, and access, which are parts of the fee. foreseeable damages. Damages that a breaching party knew or should have known when the contract was made would be likely to result from a breach. [Cases: Damages C='21.] future damages. (17c) Money awarded to an injured party for an injury's residual or projected effects, such as those that reduce the person's ability to function. • Examples are expected pain and suffering, loss or impairment of earning capacity, and projected medical expenses. [Cases: Damages (::::>25.] general damages. (18c) Damages that the law presumes follow from the type ofwrong complained of; specif., compensatory damages for harm that so frequently results from the tort for which a party has sued that the harm is reasonably expected and need not be alleged or proved.• General damages do not need to be specifically claimed. - Also termed direct damages; necessary damages. [Cases: Damages C=' 5.] gross damages. The total damages found before adjust­ ments and offsets. hedonic damages (hi-don-ik). (1985) Damages that attempt to compensate for the loss of the pleasure of being alive .• Such damages are not allowed in most jurisdictions. - Also termed (erroneously) hedonistic damages. [Cases: Damages (::::>48-56.20.] imaginary damages. See punitive damages. inadequate damages. Damages insufficient to fully and fairly compensate the parties; damages bearing no reasonable relation to the plaintiff's injuries, indi­ cating prejudice, mistake, or other fact to support setting aside a jury's verdict. [Cases: Damages (::::> 127.1-140.7.] incidental damages. (18c) 1. Losses reasonably associ­ ated with or related to actual damages. 2. A seller's commercially reasonable expenses incurred in stopping delivery or in transporting and caring for goods after a buyer's breach. VCC § 2-7l0. [Cases: Sales (::::>384(4).] 3. A buyer's expenses reasonably incurred in caring for goods after a seller's breach. VCC § 2-715(1). [Cases: Sales (::::>418(19).] "What are incidental damages? The Code does not define incidental damages; rather 2-715(1) lists many expenses that are included as incidental damages. However, Comment 1 to 2-715 stresses that those listed 'are not intended to be exhaustive' but are merely illustrative of the typical kinds of incidental expenses that can be recovered under 2-715: (1) those associated with rightful rejection (for instance, inspection and storage); (2) those associated with a proper revocation of acceptance; and (3) those involved in effecting cover." 1 James J. White & Robert S. Summers, Uniform Commercial Code § 10-3, at 561-62 (4th ed. 1995).

indeterminate damages. See discretionary damages. indirect damages. See consequential damages.

intervening damages. Continuing damages that accrue during the pendency and prosecution of an unsuc­ cessful appeal. _ A lower court may include interven­ ing damages in an award. irreparable damages (i-rep-<J-r<J-b<JI). Damages that cannot be easily ascertained because there is no fixed pecuniary standard of measurement, e.g., damages for a repeated public nuisance. - Also termed non­ pecuniary damages. land damages. See just compensation under COMPEN­ SATION.

lawful damages. Those damages fixed by law and ascer­ tained in' a court oflaw. liquidated damages. (I8c) An amount contractu­ ally stipulated as a reasonable estimation of actual damages to be recovered by one party if the other party breaches. - If the parties to a contract have properly agreed on liquidated damages, the sum fixed is the measure of damages for a breach, whether it exceeds or falls short of the actual damages. - Also termed stipulated damages; estimated damages. See LIQUIDATED-DAMAGES CLAUSE. Cf. unliquidated damages; PENALTY CLAUSE. [Cases: Damages c=> 74-84.] "Where the terms of a contract specify a sum payable for non'performance, it is a question of construction whether this sum is to be treated as a penalty or as liquidated damages. The difference in effect is this: The amount recoverable in case of a penalty is not the sum named, but the damage actually incurred. The amount recoverable as liquidated damages is the sum named as such. In constru­ ing these terms a judge will not accept the phraseology of the parties; they may call the sum specified 'liquidated damages,' but if the judge finds it to be a penalty, he will treat it as such." William R. Anson, Principles of the Law of Contract 470 (Arthur L. Corbin ed., 3d Am. ed. 1919).

while compensatory damages are recoverable for both a failure of performance and for a defective perfor­ mance. multiple damages. Statutory damages (such as double or treble damages) that are a multiple of the amount that the fact-finder determines to be owed. Also termed multiplied damages. See double damages; treble damages. [Cases: ~ULHU"~U "[TJhe statutory multiple damages differ from the common law punitive damages in that punitive damages involved no fixed sum or limit. The fixed limit of multiple damages not only reduces their threat to the defendant and the potential for abuse, it also reduces the possibility of a measured deterrence. Likewise, because the enhancement of the award is fixed by the statutory multiple, there is no occasion for introducing evidence of the defendant'S wealth as there is in the case of common law punitive damages. .. Perhaps a more important distinction is that multiple damages statutes may be enacted for entirely non·punitive purposes. SpeCifically, some double or treble damages statutes, and also specified 'civil penalties,' are intended to provide a kind of liquidated damages for actual losses that cannot be proved or that are otherwise unrec­ ognized by the law." Dan B. Dobbs, Law of Remedies § 3.12, at 359 (2d ed. 1993).

necessary damages. See general damages. nominal damages. (18c) 1. A trifling sum awarded when a legal injury is suffered but there is no substantial loss or injury to be compensated. 2. A small amount fixed as damages for breach of contract without regard to the amount of harm. - Also termed contemptuous damages. Cf. substantial damages. [Cases: Damages C=>8-14.] "Nominal damages are damages awarded for the infrac­ tion of a legal right, where the extent of the loss is not shown, or where the right is one not dependent upon loss or damage, as in the case of rights of bodily immunity or rights to have one's material property undisturbed by direct invasion. The award of nominal damages is made as ajudicial declaration that the plaintiff's right has been violated." Charles T. McCormick, Handbook on the Law of Damages § 20, at 85 (1935).

"The distinction between a penalty and genuine liqui­ dated damages, as they are called, is not always easy to apply. but the Courts have made the task simpler by laying down certain guiding principles. In the first place, if the sum payable is so large as to be far in excess of the probable damage on breach, it is almost certainly a penalty. Secondly, if the same sum is expressed to be payable on anyone of a number of different breaches of varying importance, it is again probably a penalty, because it is extremely unlikely that the same damage would be caused by these varying breaches. Thirdly, where a sum is expressed to be payable on a certain date, and a further sum in the event of default being made, this latter sum is prima facie a penalty, because mere delay in payment is unlikely to cause damage. Finally, it is to be noted that the mere use of the words 'liquidated damages' is not decisive, for it is the task of the Court and not of the parties to decide the true nature of the sum payable." P.5. Atiyah, An Introduction to the Law of Contract 316-17 (3d ed. 1981).

"Nominal damages are awarded if the plaintiff establishes a breach of contract or a tort of the kind that is said to be 'actionable per se' but fails to establish a loss caused by the wrong. In the case of tort not actionable per se for example, negligence, if the plaintiff fails to establish a the action will be dismissed. The practical significance of a judgment for nominal damages is that the plaintiff thereby establishes a legal right. The judgment has the effect of a declaration of legal rights and may deter future infringe­ ments or may enable the plaintiff to obtain an injunction to restrain a repetition of the wrong. The obtaining of nominal damages will also, in many cases, entitle a plaintiff to costs .... [Also,] nominal damages might serve as a peg upon which to hang an award of exemplary damages." S.M. Waddams, The Law of Damages 477-78 (3d ed. 1997).

loss-of-bargain damages. See benefit-of-the-bargain damages. lost-expectation damages. See expectation damages. lost-profits damages. See LOST-PROFITS (1). moratory damages (mor-cHor-ee or mahr-). Civil law. Damages for a delay in performing an obliga­ tion. La. Civ. Code arts. 1989. 1994. - There must be a default before these damages can be recovered,

nonpecuniary damages. Damages that cannot be measured in money. See irreparable damages. particular damages. See special damages. pecuniary damages (p 112.2(1).] dangeria, n. Hist. Payment by forest tenants to the lord so that they can plow and sow in the same season as pannage. See PANNAGE. danger-invites-rescue doctrine. See RESCUE DOCTRINE.

danger of navigation. See PERIL OF THE SEA. danger of river. See PERIL OF THE SEA. danger of the sea. See PERIL OF THE SEA. dangerous, adj. (15c) 1. (Of a condition, situation, etc.) perilous; hazardous; unsafe . 2. (Of a person, an object, etc.) likely to cause serious bodily harm . imminently dangerous. (1834) (Of a person, behavior, activity, or thing) reasonably certain to place life and limb in peril. _ This term is relevant in several legal contexts. For example, if a mental condition renders a person imminently dangerous to self or others, he or she may be committed to a mental hospital. And the imminently dangerous behavior of pointing a gun at someone's head could subject the actor to criminal and tort liability. Further, the manufacturer of an imminently dangerous product may be held to a strict-liability standard in tort. [Cases: Mental Health Products Liability (;=:>8,21.] inherently dangerous. (I887) (Of an activity or thing) requiring special precautions at all times to avoid injury; dangerous per se. See DANGEROUS INSTRU­ MENTALITY; INHERENTLY DANGEROUS ACTIVITY.

dangerous animal. See ANIMAL. dangerous condition. See CONDITION (5). dangerous conduct. See unreasonably dangerous conduct under CONDUCT. dangerous criminal. See CRIMINAL. dangerous drug. See DRUG. dangerous exposure. See EXPOSURE. dangerous instrumentality. (1857) An instrument, sub­ stance, or condition so inherently dangerous that it may cause serious bodily injury or death without human use or interference. - It may serve as the basis for strict liability. See ATTRACTIVE-NUISANCE DOCTRINE. Cf. deadly weapon under WEAPON. [Cases: Negligence (.=305-307,1172-1178.] dangerous lunatic. See LUNATIC. dangerous occupation. See OCClJPATION. dangerous-propensity test. See DANGEROUS-TENDENCY TEST.

darrein continuance

dangerous-proximity test. (1973) Criminal law. A common-law test for the crime of attempt, fOCUSing on whether the defendant is dangerously close to com­ pleting the offense .• Factors include the gravity of the potential crime, the apprehension of the victim, and the uncertainty of the crime's occurrence. See ATTEMPT (2). [Cases: Criminal Law (;=:>44.] dangerous situation. (1898) Under the last-clear-chance doctrine, the circumstance in which a plaintiff operat­ ing a motor vehicle has reached a position (as on the path of an oncoming train) that cannot be escaped by the exercise ofordinary care. - Also termed situation ofdanger. See LAST-CLEAR-CHANCE DOCTRINE. [Cases: Automobiles dangerous-tendency test. (1938) A propensity of a person or animal to inflict injury.• The test is used, esp. in dog-bite cases, to determine whether an owner will be held liable for injuries caused by the owner's animal. Also termed dangerous-propensity test. [Cases: Animals C"66.2, 66.5(2).] dangerous weapon. See WEAPON. danger-utility test. See RISK-UTILITY TEST. danism (dan-iz-am), n. [fr. Greek daneismos "a loan"] Hist. The lending of money on usury. Darden hearing. (1979) Criminal procedure. An ex parte proceeding to determine whether disclosure of an infor­ mant's identity is pertinent to establishing probable cause when there is otherwise insufficient evidence to establish probable cause apart from the arresting officer's testimony about an informant's communica­ tions.• The defense attorney may be excluded from the hearing but can usu. submit questions to be used by the judge in the examination. People v. Darden, 313 N.E.2d 49 (N.Y. 1974). [Cases: Criminal Law (;::::'-627.10.j dare (dair-ee), vb. [Latin "to give"] Roman law. 1. To give; to transfer (something, esp. property) .• The transfer can be made to discharge a debt, to create an obligation, or to make a gift. 2. To appOint a representative. dare ad remanentiam (dair-ee ad rem-a-nen-shee-am), vb. [Latin "to give in fee or forever"] To transfer (esp. a remainder) in fee or forever. DARPA. abbr. DEFENSE ADVANCED RESEARCH PROJECTS AGENCY.

darraign (d. [Cases: de bene Pretrial Procedure G~.>63.] - Abbr. d.b.e. esse, adj. debenture (di-ben-chdr). [ff. L. debentur "there are owed"] (15c) 1. A debt secured only by the debtor's earning power, not by a lien on any specific asset .• Originally, this was the first word of a deed detailing sums acknowledged to be owed. 2. An instrument acknowledging such a debt. 3. A bond that is backed only by the general credit and financial reputation of the corporate issuer, not by a lien on corporate assets. Also termed debenture bond; unsecured bond; naked debenture; plain bond. Cf. BOND (3). Corpora­ tions "The word 'debenture' in its archaic sense was applied to a form given under seal as an acknowledgment for goods supplied to the Royal Household, and as such probably meant a charge on Public Funds. The term was further applied to drawback certificates issued for repayment, on the exportation of goods, of duty which had already been paid upon them, and this term is still so used by H.M. Customs .... The word is now, however, generally used to indicate an acknowledgment of indebtedness given under seal by an incorporated company, containing a charge on assets of the company, and carrying an agreed rate of interest until payment, but the variety of the forms which a debenture may take makes it difficult to find a good general definition in any reported case." Thomas Froude & Eric V.E. White, The Practice Relating to Debentures I (1935).

convertible debenture. (1908) A debenture that the holder may change or convert into some other security, such as stock. [Cases: Corporations convertible subordinated debenture. (1961) A deben­ ture that is subordinate to another debt but can be converted into a different security. sinking-fund debenture. (1893) A debenture that is secured by periodic payments into a fund established to retire long-term debt.

461

subordinate debenture. (1929) A debenture that is subject to the prior payment of ordinary debentures and other indebtedness. 4. English law. A company's security for a monetary loan.• The security usu. creates a charge on company stock or property. 5. A customhouse certificate provid­ ing for a refund ofthe duties on imported goods when the importer reexports the goods rather than selling them in the country where they were imported. debenture bond. See DEBENTURE (3).

debenture indenture. See INDENTURE.

debenture stock. 1. Stock that is issued under a contract

providing for periodic, fixed payments. [Cases: Cor­ porations C=:->470.) 2. English law. A type of bond rep­ resenting money borrowed by a company using its property or other fixed assets as security. debet et detinet (dee-bet or deb-et et det-i-net or det­ <J-n;}t). [Law Latin) Hist. He owes and detains.• 'This phrase was used in declarations in actions for debt when the original creditor sued the original debtor. The declaration stated that the defendant "owes to" as well as "detains from" the plaintiff the debt or thing in question; thus, the action was said to be "in the debet et detinet." But if the action was brought against someone other than the original debtor (such as an executor, for a debt due from the testator), then the action was said to be "in the detinet alone." Cf. DETINET. debet sine breve (dee-bet or deb-et sl-nee breev or bree­ vee), n. [Law Latin" debt without a writ"] 1. An action for debt commenced under a bill rather than a writ. 2. A debt confessed by judgment. - Abbr. d.s.b. Also termed debitum sine breve; debit sans breve. See CON­ FESSION OF JUDGMENT. de bien et de mal (dd byen ay d.:l mal). [Law French]. See DE BONO ET MALO (I). de biens Ie mort (d<J beenz 1<J mor[t]). [Law French] Hist. Of the goods ofthe deceased. de bigamis (dee big-.:l-mis), n. [Law Latin "concerning men twice married"] Hist. The statute of 4 Edw. I. st. 3, so called from the opening words of the fifth chapter. See BIGAMUS. debit. (ISc) 1. A sum charged as due or owing. 2. In bookkeeping, an entry made on the left side ofa ledger or account, noting an increase in assets or a decrease in liabilities. 3. An account balance showing that some­ thing remains due to the holder of the account. Cf. CREDIT (6). debita fundi (deb-i-t.:lm bn-dI). [Law Latin] Scots law. Debts attaching to the soil; debts affecting the land. debita laicorum (deb-i-t.:l laY-d-kor-.:lm), n. [Law Latin "debts oflaity"] Hist. The debts recoverable in civil courts. debit card. A card used to pay for purchases by elec­ tronic transfer from the purchaser's bank account. Cf. CREDIT CARD.

de bonis non administratis

debiti et crediti contributio (deb-HI et kred-HI kOIl­ tri-byoo-shee-oh). [Law Latin] Civil law. A balancing of debit and credit. • The phrase appeared in reference to setoff. debitor (deb-i-tor), n. Roman law. Someone who has a legal obligation to someone else. Cf. CREDITOR (1). PI. debitores. debito rem locupletem esse (deb-i-tor-;}m lok-yoo-plee­ t<Jm es-ee). [Latin] Hist. That the debtor is solvent. • In assigning a debt, a creditor might sometimes warrant that the debtor had the money to pay it. debitor non praesumitur donare (deb-i-tor non pri­ zyoo-mi-tur doh-nair-ee), n. [Law Latin "a debtor is not presumed to make a gift") His!. The presumption that any payment from a debtor is intended to satisfy the debt, unless the disposition dearly shows the debtor's intent to make a donation. debito tempore (deb-i-toh tem-p<J-ree). [Latin] Hist. In due time. debitrix (deb-d-triks), n. [Latin) Archaic. Civil law. A female debtor. debit sans breve. See DEBET SINE BREVE. debitum (deb-i-t;}m), n. [Latin "a debt"] Roman law. Money or other thing that is actually owed, where there is both a duty and liability to repay; an actionable debt. Cf. INDEBITUM. debitum fructuum (deb-i-t<Jm frak-choo-dm). [Law Latin] Hist. A debt upon the fruits; that is, a debt from the fruit of the land, not from the land itself.• Tithes, for example, were usu. payable debitum fructuum. debitum in diem (deb-i-t<Jm in dI-dm). [Latin "a debt to a date"] Hist. A debt payable at a future date .• The phrase appeared in reference to a debt that is due but for which the time for payment had not yet arrived. See UBI DIES CESSIT, LICET NONDUM VENERIT. debitum in praesenti solvendum in futuro (deb-i-t.:lm in pri-zen-tI sol-ven-d.:lm in fyoo-t[y]oor-oh). [Latin] A present debt (or obligation) to be paid at a future time; a debt or obligation complete when contracted, but of which the performance cannot be required until some future period. debitum reale (deb-i-t<Jm ree-ay-Iee). [Law Latin] Hist. A real debt; a debt on land, as distinguished from a personal obligation. debitum sine breve. See DEBET SINE BREVE. debitum subesse (deb-i-t;}m s.:lb-es-ee). [Latin) Hist. That the debt is due. de bonis asportatis (dee boh-nis as-pdr-tay-tis). See trespass de bonis asportatis under TRESPASS. de bonis non (dee boh-nis non). See administration de bonis non under ADMINISTRATION. de bonis non administratis (dee boh-nis non ad-min­ <J-stray-tis). [Law Latin] Hist. Of the goods not admin­ istered.• When the first administrator of an intestate estate dies or is removed, the second administrator is

called an administrator bonis non, who administers the goods not administered by the previous executor. de bonis non amovendis (dee boh-nis non ay-moh-ven­ dis), n. [Latin "of goods not to be moved"] Hist. A writ directing the sheriffs of London to make sure that a defendant's goods are not removed while the defen­ dant's writ of error on a judgment is pending. de bonis propriis (dee boh-nis proh-pree-is), n. [Law Latin "of his own goods"] Hist. A judgment allowing execution on an administrator's individual property rather than the property of an estate, as when the administrator mismanages the estate. Cf. DE BONIS TESTATORIS.

de bonis testatoris (dee boh-nis tes-t.:l-tor-is), n. [Law Latin "of the goods of the testator"J Hist. A judgment awarding execution on a testator's property, rather than the individual property of an administrator. Cf. DE BONIS PROPRIIS.

de bonis testatoris ac si (dee boh-nls tes-t.:l-tor-is ak sIlo [Law Latin "from the goods of the testator if he has any, and if not, from those of the executor"]. Hist. A judgment holding an executor responsible if the testa­ tor's estate is insufficient or if the executor falsifies a pleading as a release. de bonne memoire (d.:l bawn mem-wahr). [Law French] Of sound mind; of good memory. Also spelled de bone memorie. See MIND A:srD MEMORY; COMPOS MENTIS.

de bono et malo (dee boh-noh et mal-oh), n. [Law Latin "for good and evil"] Hist. 1. For good and evil.• A criminal defendant indicated full submission to the jury's verdict by placing himself or herself at the jury's mercy de bono et malo. Also termed de bien et de mal. 2. A special writ ofjail delivery issued by the justices of assize to enable them to try all criminal defendants who were in jail where the court traveled.• Formerly, the judges were required to issue a separate writ for every prisoner. This was replaced by a general commission of jail delivery. "[Tjhey have ... a commission of general gaol delivery; which empowers them to try and deliver every prisoner, who shall be in the gaol when the judges arrive at the circuit town, whenever indicted, or for whatever crime committed. It was anciently the course to issue special writs of gaol delivery for each particular prisoner, which were called the writs de bono et malo: but, these being found inconvenient and oppressive, a general commission for all the prisoners has long been established in their stead. So that, one way or other, the gaols are cleared, and all offenders tried, punished, or delivered, twice in every year: a constitution of singular use and excellence." 4 William Blackstone, Com· mentaries on the Laws of England 267 (1769).

de bono gestu (dee boh-noh jes-t[y]ool. [Law Latin] For good behavior. debt. (13c) 1. Liability on a claim; a specific sum of money due by agreement or otherwise . 2. The aggregate of all existing claims against a person, entity, or state ! METHOD.

deeoctor (di-kok-tar or -tor), n. [fro Latin deciquere "to waste") Roman law. A bankrupt; a defaulting debtor. de coelo usque ad inferos (dee see~loh -n. Cf. CRIMINAL­ rZATION (1). [Cases: Criminal LawC=> 15.] decrimi­ nalize, vb. decrowning. The act of depriving someone of a crown. decry (di-krI), vb. (17c) To speak disparagingly about (someone or something).

de cujus (dee kYOO-jdS or kI-as). [Latin] From whom. - This term is used to designate (1) the person by or through whom another claimed something, or (2) the person whose legal position is in issue. de curia claudenda (dee kyoor-ee-a klaw-den-dd), n. [Law Latin "of enclOSing a court"] Hist. A writ ordering a person to build a wall or fence around his or her house to avoid disturbing a neighbor. decurio (di-kyoor-ee-oh), n. [Latin "a decurion"] Roman law. A municipal senator belonging to a municipal council responsible for managing the internal affairs of the municipality. de cursu (dee kar-s[y]oo). [Law Latin] Of course. - This term usu. refers to regular, formal proceedings as dis­ tinguished from incidental, summary proceedings.

de custode admittendo (dee b-stoh-dee ad-mi-ten­ doh), n. [Law Latin "of admitting a guardian"] Hist. A writ to admit a guardian. de custode amovendo (dee kJ-stoh-dee ay-moh-ven­ doh), n. [Law Latin "of removing a guardian"] Hist. A writ to remove a guardian. de custodia terrae et haeredis (dee kd-stoh-dee-a ter-ee et her-J-dis), n. [Law Latin "of right of ward"] Hist. A writ allowing a guardian in a knight's service to obtain custody of an infant ward. de debito (dee deb-i-toh), n. [Law Latin "of debt"] Hist. A writ of debt. - Sometimes shortened to debito. de debitore in partes secando (dee deb-i-tor-ee in pahr­ teez si-kan-doh). [Latin "of cutting a debtor in pieces"] Roman law. The title of a law in the Twelve Tables, meaning either literally to cut a debtor into pieces or merely to divide the debtor's estate. See TWELVE TABLES. [Sjome writers contending for the literal signification, while others have supposed it to be only a figurative expression .... The latter view has been adopted by Montesquieu, Bynkershoek, Heineccius and Taylor .... The literal meaning, on the other hand, is advocated by Aulus Gellius and other writers of antiquity, and receives support from an expression (semoto omni cruciatu) in the Roman Code itself .... This is also the opinion of Gibbon, Gravina, Pothier, Hugo and Niebuhr." I Alexander Burrill, A Law Dictionary and Glossary 432 (2d ed. 1867). "DE DEBITORE IN PARTES SECANDO •.•.

de deceptione (dee di-sep-shee-oh-nee), n. [Law Latin "of deceit"] Hist. A writ available to a party who was deceived and damaged by someone acting in the party's name. de deoneranda pro rata portionis (dee dee-on-d-ran-dd proh ray-ta por-shee-oh-nis), n. [Law Latin "of the dis­ burdening ofa pro rata share"] Hist. A writ for someone who is forced to pay rent that others are supposed to contribute to proportionately. dedi (dee-dr). [Latin] Hist. I have given. _ Dedi is a con­ veyancing term that implies a warranty of title. Cf. CONCESSI. "Dedi is a warranty in law to the feoffee and his heirs: as if it be said in a feoffment A. B. hath given and granted, &c. it is a warranty." Termes de fa Ley 148 (1st Am. ed. 1812).

dedication, n. (1809) Property. The donation ofland or creation ofan easement for public use. [Cases: Dedica­ tion C=> 1-28.] - dedicate, vb. dedicatory, adj. common-law dedication. (1858) A dedication made without a statute, consisting in the owner's appropria­ tion ofland, or an easement in it, for the benefit or use of the public, and the acceptance, by or on behalf of the land or easement. - Often shortened to dedica­ tion. [Cases: Dedication C=> 1-21.] dedication by adverse user. (1895) A dedication arising from the adverse, exclusive use by the public with the actual or imputed knowledge and acquiescence of the owner. [Cases: Dedication C=>20.J express dedication. (1836) A dedication explicitly man­ ifested by the owner. [Cases: Dedication C=> 17.J

implied dedication. (1837) A dedication presumed by reasonable inference from the owner's conduct. [Cases: Dedication C=:> 18-20.] statutory dedication. (1852) A dedication for which the necessary steps are statutorily prescribed, all of which must be substantially followed for an effective dedication. [Cases: Dedication C=:> 22.] tacit dedication. (1926) A dedication of property for public use arising from silence or inactivity and without an express agreement. dedication and reservation. A dedication made with reasonable conditions, restrictions, and limitations. dedication day. See DAY. de die in diem (dee dJ-ee in dI-am). [Law Latin] From day to day; daily. dedi et concessi (dee-dI et bn-ses-I). [Law Latin] I have given and conveyed .• These were the words generally used to convey a gift. dedimus et concessimus (ded-a-mas et kan-ses-i-mds). [Law Latin] We have given and granted .• These words were used in a conveyance when there was more than one grantor or when the grant was from the Crown. dedimus potestatem (ded-a-m3295; Taxation (;:::::: 3501.] 3. The portion of a succession to which an heir is entitled before a partition. 4. The act or process of rea­ soning from general propositions to a specific applica­ tion or conclusion. Cf. INDUCTION (2). deduct (for vb. deduce (for sense 4), vb. senses deduction for new. See NEW-FOR-OLD (1). deduction in respect of a decedent. See DEDUCTION. deductis debitis (di-d",k-tis deb-i-tis). [Latin] Hist. The debts being deducted .• Before an estate could be ascer­ tained, the debts had to be deducted. de ea re ita censuere (dee ee-a ree I-ta sen-s[y]oo-a-ree). [Latin] Concerning that matter they have so decreed. • This phrase was used to record decrees ofthe Roman senate. Abbr. d.e.r.i.c. deed, n. (bef. 12c) 1. Something that is done or carried out; an act or action. 2. A written instrument by which land is conveyed. 3. At common law, any written instru­ ment that is Signed, sealed, and delivered and that conveys some interest in property. See special contract & contract under seal under CONTRACT. Also termed (in senses 2 & 3) evidence oftitle. Cf. CONVEYANCE; BILL OF SALE. deed, vb. "A deed is a writing sealed and delivered. For if either a parchment without writing be delivered as one's deed, yet it is not his deed, though an obligation be afterwards written in it: or if it be a writing but not sealed at the time of the delivery of it as his deed, it is a scrole and not his deed. Or if I make and seal a deed, and the party take it without my delivery. I may plead it is not my deed." Sir Henry Finch, Law, or a Discourse Thereof 108 (1759). "What then is a deed? Unfortunately the word is not free from ambiguity. In the original and technical sense a deed is a written instrument under the seal of the party execut­ ing it. Because, however, of the wide use of such instru­ ments in the conveyance of real estate, it has come to mean in popular acceptance any formal conveyance for the transfer of land or of an interest therein. The dual use of the term has crept into the language of courts and law writers, so that in the reading of cases it is difficult to determine whether the word is used in the first and original sense, or whether it connotes a formal instrument of the type ordinarily employed for the conveyance of land." Ray Andrews Brown, The Law of Personal Property § 46, at 118-19 (2d ed. 1955). "All deeds are documents. but not all documents are deeds. For instance, a legend chalked on a brick wall, or a writing tattooed on a sailor's back may be documents but they are not deeds. A deed is, therefore, a particular kind of document. It must be a writing and a writing on paper or its like, e.g., vellum or parchment. Any instrument under seal is a deed if made between private persons. It must be signed, sea/ed, and delivered. A deed must either (al effect the transference of an interest, right or property. or (b) create an obligation binding on some person or persons, or (c) confirm some act whereby an interest, right, or property has already passed." Gerald Dworkin, Odgers' Construction of Deeds and Stawtes 1 (5th ed. 1967).

absolute deed. (17c) A deed that conveys title without condition or encumbrance. - Also termed deed absolute. administrator's deed. A document that conveys property owned by a person who has died intestate.

bargain-and-sale deed. (1972) A deed that convevs property to a buyer for valuable consideration b~t that lacks any guarantee from the seller about the of the title. See BARGAIN AND SALE. [Cases: composition deed. A deed reflecting the terms of an agreement between a debtor and a creditor to dis­ charge or adjust a debt. [Cases: Debtor and Creditor

1O.J counterdeed. A secret deed, executed either before a notary or under a private seal, that voids, invalidates, or alters a public deed. deathbed deed. Rare. A deed executed by a grantor shortly before death .• The grantor need not be aware that he or she is near death when the deed is executed. Deeds (;:=68(3), 70(7), 72(2).] deed absolute. See absolute deed. deed in fee. (18c) A deed conveying the title to land in fee simple, usu. with covenants. deed in lieu offoreclosure. (1934) A deed by which a borrower conveys fee-simple title to a lender in sat­ isfaction of a mortgage debt and as a substitute for foreclosure.• This deed is often referred to simply as "deed in lieu." [Cases: Mortgages ~~293.] deed ofcovenant. (17c) A deed to do something, such as a document providing for periodic payments by one party to another (usu. a charity) for tax-saving purposes.• The transferor can deduct taxes from the payment and, in some cases, the recipient can reclaim the deducted tax. deed ofdistribution. A fiduciary's deed conveying a decedent's real estate. deed ofgift. (16c) A deed executed and delivered without consideration. - Also termed gratuitous deed. deed of inspectorship. Hist. An instrument reflect­ ing an agreement between a debtor and a creditor to appoint a receiver to oversee the winding up of the debtor's affairs on behalf of the creditor. deed ofpartition. (18c) A deed that divides land held by joint tenants, tenants in common, or coparceners. [Cases: Partition (::::;,96.] deed ofreconveyance. A deed conveying title to real property from a trustee to a grantor when a loan is repaid. Cf. deed oftrust. deed ofrelease. A deed that surrenders full title to a piece of property upon payment or performance of specified conditions. deed ofseparation. An instrument governing a spouse's separation and maintenance. [Cases: Husband and Wife deed oj settlement. 1. A deed to settle something, such as the distribution of property in a marriage. 2. English law. A deed formerly used to form a jOint­ stock company.

deed of trust. (17c) A deed conveying title to real property to a trustee as security until the grantor repays a loan.• This type of deed resembles a trust indenture; mortgage. - Also termed trust indemnity mortgage; common-law mortgage. Cf. deed of reconveyance. [Cases: Mortgages (;:=8.] deed poll. (16c) A deed made by and binding on only one party, or on two or more parties having similar interests.• It is so called because, traditionally, the parchment was "polled" (that is, shaved) so that it would be even at the top (unlike an indenture). ­ Also spelled deed-poll. Cf. INDENTURE. deed to lead uses. A common-law deed prepared before an action for a fine or common recovery to show the object of those actions. deed without covenants. See 'luitclaim deed. defeasible deed. (1802) A deed containing a condition subsequent causing title to the property to revert to the grantor or pass to a third party. derivative deed. See secondary conveyance under CON­ VEYANCE.

disentailing deed. Hist. A tenant-in-tail's assurance that the estate tail will be barred and converted into an estate in fee.• The Fines and Recoveries Act (3 & 4 Will. 4 ch. 74) introduced this way of barring an entail. It authorized nearly every tenant in tail, if certain conditions were met, to dispose ofthe land in fee simple absolute and thus to defeat the rights ofall persons claiming under the tenant. donation deed. A deed granted by the government to a person who either satisfies the statutory conditions in a donation act or redeems a bounty-land warrant. See DONATION ACT; BOUNTY-LAND WARRANT. [Cases: Public Lands (;:=42.J full-covenant-and-warranty deed. See warranty deed. general warranty deed. See warranty deed. gift deed. (1864) A deed given for a nominal sum or for love and affection. good deed. A deed that conveys good title as opposed to a deed that is merely good in form. Also termed lawful deed. grant deed. (1891) A deed containing, or having implied by law, some but not all of the usual covenants oftitle; esp., a deed in which the grantor warrants that he or she (1) has not previously conveyed the estate being granted, (2) has not encumbered the property except as noted in the deed, and (3) will convey to the grantee any title to the property acquired after the date of the deed. gratuitous deed. See deed ofgift. inclusive deed. See inclusive grant under GRANT. indented deed. See INDENTURE (2). latent deed. A deed kept in a strongbox or other secret place, usu. for 20 years or more.

lawful deed. See good deed. mineral deed. A conveyance of an interest in the minerals in or under the land. [Cases: Mines and Minerals mortgage deed. The instrument creating a mortgage. _ A mortgage deed typically must contain (1) the name ofthe mortgagor, (2) words of grant or conveyance, (3) the name ofthe mortgagee, (4) a property description sufficient to identify the mortgaged premises, (5) the mortgagor's signature, and (6) an acknowledgment. To be effective and binding, a mortgage deed must also be delivered. [Cases: Mortgages ~42.1 onerous deed. Scots law. A deed given in exchange for a valuable consideration, often as part of a marriage settlement. quitclaim deed. (I8c) A deed that conveys a grantor's complete interest or claim in certain real property but that neither warrants nor professes that the title is valid. Often shortened to quitclaim. - Also termed deed without covenants. Cf. warranty deed. [Cases: 121.] Deeds "A quitclaim deed purports to convey only the grantor's present interest in the land, if any, rather than the land itself. Since such a deed purports to convey whatever interest the grantor has at the time, its use excludes any implication that he has good title, or any title at all. Such a deed in no way obligates the grantor. If he has no interest, none will be conveyed. If he acquires an interest after exe­ cuting the deed, he retains such interest. If, however, the grantor in such deed has complete ownership at the time of executing the deed, the deed is suffiCient to pass such ownership. .. A seller who knows that his title is bad or who does not know whether his title is good or bad usually uses a quitclaim deed in conveying." Robert Kratovil, Real Estate Law49 (6th ed. 1974).

release deed. A deed that is issued once a mortgage has been discharged, explicitly releasing and reconveying to the mortgagor the entire interest conveyed by an earlier deed of trust. - Also termed reconveyance; satisfaction; release. [Cases: Mortgages ~309.1 sheriff's deed. A deed that gives ownership rights in property bought at a sheriff's sale. [Cases: Execution (;::303·1 special warranty deed. (1808) 1. A deed in which the grantor covenants to defend the title against only those claims and demands of the grantor and those claiming by and under the grantor. [Cases: Covenants 67.1 2. In a few jurisdictions, a quitclaim deed. Cf. warranty deed. [Cases: Deeds ~ 25, 12Ll statutory deed. (1832) A warranty-deed form pre­ scribed by state law and containing certain warran­ ties and covenants even though they are not included in the printed form. support deed. A deed by which a person (usu. a parent) conveys land to another (usu. a son or daughter) with the understanding that the grantee will support the grantor for life. _ Support deeds often result in liti­ gation. tax deed. A deed showing the transfer of title to real property sold for the nonpayment of taxes. See office

grant under GRANT; tax sale under SALE. Cf. TAX CER­ TIFICATE. [Cases: Taxation title deed. (18c) A deed that evidences a person's legal ownership of property. See TITLE. trust deed. See deed oftrust. warranty deed. (1802) A deed containing one or more covenants oftide; esp., a deed that expressly guaran­ tees the grantor's good, clear title and that contains covenants concerning the quality of title, includ­ ing warranties of seisin, quiet enjoyment, right to convey, freedom from encumbrances, and defense of title against all claims. Also termed general warranty deed;full-covenant-and-warranty deed. See WARRANTY (1). Cf. quitclaim deed; special warranty deed. [Cases: Covenants 0'='46-48, 67.J wild deed. (1914) A recorded deed that is not in the chain oftitle, usu. because a previous instrument con­ nected to the chain of title has not been recorded. deed box. Archaic. A box in which deeds of land title are traditionally kept. _ Such a box is considered an heirloom in the strict sense. See HEIRLOOM (1). deed ofagency. A revocable, voluntary trust for payment ofa debt. deed of crime. See ACTUS REGS. deed of feoffment. See FEOFFMENT (3). deep of inspectorship. See DEED. deed of reconveyance. See DEED. deed of trust. See DEED. de ejectione custodiae (dee ee-jek-shee-oh-nee bs­ toh-dee-ee). [Latin "ejectment of a ward"] Rist. A writ available to a guardian after being ejected from the ward's land during the ward's minority. - The writ lay to recover the land or person of the ward, or both. The French equivalent was ejectment de garde. de ejectione firmae (dee ee-jek-shee-oh-nee f3r-mee). [Latin "ejectment of farm"] Rist. A writ or action of trespass to obtain the return of lands or tenements to a lessee for a term of years that had been ousted by the lessor or by a reversioner, remainderman, or stranger. _ The lessee was then entitled to a writ of ejection to recover, at first, damages for the trespass only, but later the term itself, or the remainder of it, with damages. This action is the foundation of the modern action of ejectment. See EJECTMENT. "A writ then of ejectione firmae, or action of trespass in ejectment, lieth, where lands or tenements are let for a term of years; and afterwards the lessor, reverSioner, remainder-man, or any stranger, doth eject or oust the lessee of his term. In this case he shall have his writ of ejection, to call the defendant to answer for entering on the lands so demised to the plaintiff for a term that is not yet expired, and ejecting him. And by this writ the plaintiff shall recover back his term, or the remainder of it, with damages." 3 William Blackstone, Commentaries on the Laws of England 199 (1768).

deem, vb. (bef. 12c) 1. To treat (something) as if (1) it were really something else, or (2) it has qualities that it does not have . 2. To consider, think, or judge <she deemed it necessary>.

de-escalation clause. A contractual provision to decrease the price of something if specified costs decrease. Cf.

'''Deem' has been traditionally considered to be a useful word when it is necessary to establish a legal fiction either positively by 'deeming' something to be what it is not or negatively by 'deeming' something not to be what it is.... All other uses of the word should be avoided .... Phrases like 'if he deems fit' or 'as he deems necessary' or 'nothing in this Act shall be deemed to .. .' are objectionable as unnecessary deviations from common language. 'Thinks' or 'considers' are preferable in the first two examples and 'construed' or 'interpreted' in the third .... 'Deeming' creates an artificiality and artificiality should not be resorted to if it can be avoided," G.c. Thornton, Legislative Drafting 99 (4th ed. 1996).

de escambio monetae (dee es-kam-bee-oh m;)-nee-tee), n. [Law Latin "of exchange of money"] Hist. A writ authorizing a merchant to prepare a bill of exchange. de essendo quietum de theolonio (dee e-sen-doh kWI­ ee-t;)m dee thee-;)-loh-nee-oh), n. [Law Latin "of being quit of toll"] Hist. A writ authorizing a person who is exempt from paying a toll to enforce the exemption without harassment. Also spelled de essendo quietum de tolonio. de essentia (dee e-sen-shee-;). [Law Latin] Hist. Of the essence; essential. de essonio de malo leeti (dee e-soh-nee-oh dee mal-oh lek-tr), n. [Law Latin "of essoin of malum lecti (sickness ofbed)"] Hist. A writ ordering a determination whether a person is truly sick after the person has issued an essoin claiming sickness as an excuse for not appear­ ing in court. de estoveriis habendis (dee es-t. See fee simple defeasible under FEE SIMPLE. ­ defeasibility, n. defeasible deed. See DEED. defeasible estate. See ESTATE (1). defeasible fee simple. See fee simple defeasible under FEE SIMPLE.

defeasible interest. See INTEREST (2). defeasible remainder. See REMAINDER. defeasible title. See TITLE (2). defeasive, adj. Rare. Capable of defeating . defeat, vb. 1. To deprive (someone) of something expected, usu. by an antagonistic act . 2. To annul or render (some­ thing) void . 3. To vanquish; to conquer (someone or something) . 4. To frustrate (someone or something) . [Cases: Products Liability ~~ 119.] defective condition. (1823) An unreasonably danger­ ous state that might well cause physical harm beyond that contemplated by the ordinary user or consumer who purchases the product. See PRODUCTS LIABILITY. [Cases: Products LiabilityG~ ll9.] defective performance. See PERFORMANCE. defective pleading. See PLEADING (1). defective process. See PROCESS. defective product. See PRODUCT. defective record. See RECORD. defective title. See TITLE (2). defective trust. See TRUST. defective verdict. See VERDICT. defect of form. (17c) An imperfection in the style, manner, arrangement, or nonessential parts of a legal

482

defect of parties

document, as distinguished from a substantive defect. Cf. DEFECT OF SUBSTANCE. defect of parties. (18c) A failure to include all indispens­ able parties in a lawsuit. [Cases: Federal Civil Proce­ dure (::::>384; Parties (::::>77,81.] defect of reason. Archaic. l. Mental illness. 2. Mental retardation. defect of substance. (18c) An imperfection in the sub­ stantive part of a legal document, as by omitting an essential term. Cf. DEFECT OF FORM. defectus (di-fek-tJs), n. [fr. Latin deficere "to be defi­ cient"] Hist. A defect; a deficiency. defectus sanguinis (di-fek-tJs sang-gwi-nis). [Latin "defect of blood"] Hist. A failure of issue, often result­ ing in an escheat. See ESCHEAT. defence. See DEFENSE. defend, vb. (14c) l. To deny, contest, or oppose (an alle­ gation or claim) 101; Parties (::::>73.] target defendant. In a case with multiple defendants, the one whom the plaintiff considers the primary source for any recovery of damages.• Among several defendants, one is usu. the most blameworthy or has the most insurance or greatest assets, or both. defendant in error. (I8c) Archaic. In a case on appeal, the prevailing party in the court below. See APPELLEE; RESPONDENT (1).

defendant score. (1982) A number taken from an estab­ lished scale, indicating the relative seriousness of the defendant's criminal history. Cf. CRIME SCORE. defendant's gain. (1882) The amount of money or the value of property that a criminal defendant has obtained by committing a crime .• Some states, such as New York, consider the defendant's gain when assess­ ing a criminal fine or ordering restitution. defendemus (di-fen-dJ-mJs). [fro Latin defendere] We will defend .• This term was used in conveyancing to require the donor and the donor's heirs to defend the donee against any attempted encumbrance not spe­ cifically agreed to. Although defendemus was not a

warranty, it became part of the warranty clause "shall and will warrant and forever defend." defender. l. One who defends, such as the defendant in a lawsuit, a person using self-defense, or defense counsel. 2.

PUBLIC DEFENDER.

defendere (di-fen-dJ-ree), vb. [Law Latin] To deny; to defend. defendere se per corpus suum (di-fen-dJ-ree see pJr kor-PJs s[y]oo-Jm), vb. [Law Latin "to defend himself by his own body"] Hist. To agree to a trial by judicial combat; to agree to a duel. defendere unica manu (di-fen-dJ-ree yoo-nJ-kJ man­ yoo), n. [Law Latin "to defend with one hand"] Hist. A denial of an accusation under oath. Defender of the Faith. See DEFENSOR FIDEI. defendour (day-fon-duur), n. [Law French] Hist. A defen­ dant; the party accused in an appeal. defeneration (dee-fen-J-ray-shJn), n. [fro Latin de "of" + foenero "to lend upon usury"] Hist. The act of lending money at a usurious interest rate. defenestration (dee-fen-J-stray-shJn). (17c) The act of throwing someone or something out a window. ­ defenestrate, vb. defense (di-fen[t]s). (16c) l. A defendant's stated reason why the plaintiff or prosecutor has no valid case; esp., a defendant's answer, denial, or plea . [Cases: Criminal Law (::::>31.] "Defence is defined to be that which is alleged by a party proceeded against in an action or suit, as a reason why the plaintiff should not recover or establish that which he seeks by his complaint or petition." Edwin E. Bryant, The Law of Pleading Under the Codes of Civil Procedure 240 (2d ed. 1899).

affirmative defense. (1837) A defendant's assertion of facts and arguments that, if true, will defeat the plain­ tiff's or prosecution's claim, even if all the allegations in the complaint are true .• The defendant bears the burden of proving an affirmative defense. Examples of affirmative defenses are duress (in a civil case) and insanity and self-defense (in a criminal case). ­ Also termed plea in avoidance; plea in justification. Cf. negative defense; CONFESSION AND AVOIDANCE. [Cases: Criminal Law (::::>31; Federal Civil Procedure (::::>751; Pleading (::::>76,78,130.] capacity defense. (1967) A defense based on the defen­ dant's inability to be held accountable for an illegal act or the plaintiff's inability to prosecute a lawsuit (as when the plaintiff was a corporation, but has lost its corporate charter). See CAPACITY. choice-of-evils defense. See lesser-evils defense. collateral defense (kJ-lat-J-rJl). Criminal law. A defense of justification or excuse not involving a rebuttal of the allegation and therefore collateral to the elements that the prosecutor must prove. See EXCUSE (2); JUSTI­ FIcATION (2). [Cases: Criminal Law (::::>38.]

483

cultural defense. 1. A criminal defendant's assertion that because an admitted act is not a crime in the perpetrator's culture or native land, it should not be judged by the laws of the place where it was commit­ ted. - This cultural defense is asserted as an affirma­ tive defense to a criminal charge. 2. The defense that the actor's mental state at the time the alleged crime was committed was heavily influenced by cultural factors. -This is not a complete defense but a mitigat­ ing one, pleaded to reduce the charges, the sentence, or both. See FEMALE GENITAL MUTILATION. [Cases: Criminal Law C:.:>34.] defense ofhabitation. 'The defense that conduct con­ stituting a criminal offense is justified ifan aggressor unjustifiably threatens the defendant's place of abode or premises and the defendant engages in conduct that is (1) harmful to the aggressor, (2) sufficient to protect that place of abode or premises, and (3) rea­ sonable in relation to the harm threatened. - Also termed defense ofpremises. See CASTLE DOCTRINE. [Cases: Assault and Battery C-~69; Criminal 38; Homicide C:~) 759.J defense ofhonesty. See honesty defense. defense ofinequitable conduct. Patents. A defense to an action for patent infringement, made by charging the plaintiff with breaching the duty of candor and good faith. - To succeed, the defendant must show that, in the patent prosecution, the plaintiffintention­ ally withheld material information from or misled the examiner. Inequitable conduct is a combination of two former defenses: unclean hands and fraud on the Patent Office. [Cases: Patents ~97.] derivative defense. (I972) A defense that rebuts the criminal elements that a prosecutor must establish to justify the submission of a criminal case to a jury. [Cases: Criminal Law designer defense. A novel defense based on dimin­ ished capacity attributed to stress or impairment. ­ The phrase derives from the fact that the defense is tailored to the defendant and the circumstances of the crime. Examples include extraordinary reactions to snack food (the Twinkie defense), unconscious­ ness or sleepwalking, and postpartum psychosis. See AUTOMATISM. [Cases: Criminal LawC-':J46; Homicide C~815, 816.] dilatory defense (dil-a-tor-ee). (1845) A defense that temporarily obstructs or delays a lawsuit but does not address the merits. - Examples of dilatory defenses include misjoinder, nonjoinder, res judicata, misnomer, lack of capacity to sue, another action pending, statute of limitations, prematurity, unripe­ ness, release, and settlement. dwelling defense. See CASTLE DOCTRINE. eleemosynary defense. See charitable immunity under IMMUNITY (2).

empty-suit defense. A defense in which a high-ranking officer or director in an organization claims ignorance of any wrongdoing by subordinates.

defense

equitable defense. (18c) A defense formerly available only in a court of equity but now maintainable in a court oflaw. _ Examples include mistake, fraud, illegality, failure of consideration, forum non conve­ niens, laches, estoppel, and unclean hands. frivolous defense. (18c) A defense that has no basis in fact or law. full defense. A technical common-law defensive plea, stated at length and without abbreviation. - This plea is obsolete because of the pleading requirements in federal and state rules of civil procedure. general-justification defense. See lesser-evils defense. honesty defense. Rare. An assertion that the defen­ dant acted honestly and in good faith. - This defense, almost unique to civil suits, is rarely raised. For example, a defendant may assert honesty as a defense to a charge of fraudulent misrepresentation. Also termed defense of honesty. Cf. CLAIM OF RIGHT (1). [Cases: Fraud ~36.1 imperfect defense. (1835) A defense that fails to meet all legal requirements and usu. results only in a reduction in grade or sentence rather than an acquittal, as when a defendant is charged with manslaughter rather than murder because the defendant, while defending another, used unreasonable force to repel the attack. See imperfect self-defense under SELF-DEFENSE. Cf. perfect defense. inconsistent defense. (1852) A defense so contrary to another defense that the acceptance of one requires abandonment of the other. • A person accused of murder, for example, cannot claim both self-defense and the alibi of having been in a different city when the murder took place. [Cases: Criminal Law 43.5.] innocent-owner defense. In forfeiture action, an affirmative defense in which the owner of property (such as real estate or money) asserts that another person committed the wrongful act or omission while using the property without the owner's knowledge or consent. See 18 USCA § 983(d). See civil forfeiture under FORFEITURE. [Cases: Controlled Substances Forfeitures C:;)4.J insanity defense. See INSA:>IITY DEFENSE. issuable defense. (1847) Cornman-law pleading. A plea on the merits setting forth a legal defense. Cf. issuable plea under PLEA (3). justification defense. See JUSTIFICATION DEFENSE. legal defense. (17c) A complete and adequate defense in a court oflaw. lesser-evils defense. (1982) The defense that, while the defendant may have caused the harm or evil that would ordinarily constitute a criminal offense, in the present case the defendant has not caused a net harm or evil because ofjustifying circumstances and there­ fore should be exculpated. Also termed choice-ol evils defense; necessity; general-just~fication defense.

defense

meritorious defense (mer-;:J-tor-ee-;:Js). (lSc) 1. A defense that addresses the substance or essentials of a case rather than dilatory or technical objections. [Cases: Federal Civil Procedure C=;>2450, 2651.1; Judgment 379,447.]2. A defense that appears likely to succeed or has already succeeded. necessity defense. See rUSTIFICATION (2). negative defense. A defendant's outright denial of the plaintiffs allegations without additional facts pleaded by way of avoidance. Cf. affirmative defense. [Cases: Pleading new-value defense. Bankruptcy. A defense to a suit to recover preferential payments whereby the transferee of the payments can reduce liability by the amount of consideration or value that the transferee provided to the transferor after a suspect transfer. [Cases: Bank­ ruptcyC=;>2613.J ostrich defense. A criminal defendant's claim not to have known of the criminal activities of an associ­ ate. partial defense. (1818) A defense going either to part of the action or toward mitigation of damages. pass-on defense. An antitrust defense that a member of the distributive chain who was overcharged or under­ charged passed on the price adjustment to reflect the charge and thereby suffered no damage. Also termed passing on. [Cases: Antitrust and Trade Reg­ ulation C=;>908.J peremptory defense (p;H-emp-tdr-ee). (1860) A defense that questions the plaintiff's legal right to sue or contends that the right to sue has been extin­ guished. perfect defense. (1817) A defense that meets all legal requirements and results in the defendant's acquit­ tal. See perfect self-defense under SELF-DEFENSE. Cf. imperfect defense. pretermitted defense (pree-t 17.5.] lished as the National Military Establishment in 1947, defense of others. (1942) A justification defense avail­ by combining the War and the Navy Departments. Its able if one harms or threatens another when defending name was changed to Department of Defense in 1949. a third person. See JUSTIFICATION (2). [Cases: Assault The Department's components include the Army, the and Battery (::::;>68; Homicide C= 757.J Air Force, the Navy, the Marine Corps, and the Joint defense of premises. See defense of habitation under Chiefs of Staff. It is headed by the Secretary of Defense, DEFENSE (1). who is answerable to the President as Commander-in­ Chief. Also termed Department of Defense (abbr. defense of property. (1918) A justification defense avail­ DOD). able if one harms or threatens another when defending one's property. See JUSTIFICATION (2). [Cases: Assault Defense Finance and Accounting Service. A unit in the and Battery (::::;>69; Homicide (::::;>758.] U.S. Department ofDefense responsible for providing professional finance and accounting services and for defense of self. See SELF-DEFENSE.

486

Defense Security Cooperation Agency

Defense Security Cooperation Agency. A unit in the U.S. Department of Defense responsible for fostering and overseeing security-cooperation arrangements and for promoting security relationships with US. friends and allies. Abbr. DSCA. Defense Security Service. A unit in the U.S. Department of Defense responsible for conducting personnel inves­ tigations and providing industrial-security products and services to the Department and other agencies .• The agency was formerly known as the Defense Inves­ tigative Service. Abbr. DSS. Defense Threat Reduction Agency. A unit in the U.S. Department of Defense responsible for reducing the risk of and defending against attacks that involve nuclear, chemical, biological, or other weapons of mass destruction .• The Agency was created in 1998. Abbr. DTRA. defensiva (dee-fen-sl-vd), n. [Latin "a protector"] Hist. A warden of the Marches, being one of many lords appointed by the Crown to defend England's borders. defensive allegation. See ALLEGATION. defensive collateral estoppel. See COLLATERAL ESTOPPEL.

defensive disclosure. Patents. The deliberate publica­ tion of details about an invention in order to render it prior art and preclude others from getting a patent on the same invention .• This can be done formally, by filing for public disclosure through the Statutory Invention Registration and publishing the abstract in the Official Gazette of the U.S. Patent and Trademark Office, or privately, by publishing it in an independent journal that will probably be consulted by a patent examiner. Also termed defensive publication. See STATUTORY INVENTION REGISTRATION. [Cases: Patents ~1l5·1

defensive-force justification. See JUSTIFICATION. defensive lockout. See LOCKOUT. defensive-posture memorandum. See DEFENSIVE PROFILE.

defensive profile. The set of strategies devised by a company to discourage others from attempting a hostile takeover. defensive-profile memorandum. Corporations. An outline of a company's strategy against a hostile takeover. Also termed defensive-posture memoran­ dum. defensive publication. See DEFENSIVE DISCLOSURE. defensive treaty. See TREATY (1). defensor (di-fen-sdr or -sor), n. [fr. Latin defendere "to forhid"] 1. Roman law. A defender of another's interests in court; an advocate, esp. for a corporation. Cf. PROCU­ RATOR LITIS. 2. Roman law. DEFENSOR CIVITATIS. 3. Hist. Eccles. law. An advocate or patron of a church; a church warden. 4. Hist. A guardian; a protector; a defender.

defensor civitatis (di-fen-sdr siv-i-tay-tis). [Latin "defender ofthe city"] Roman law. An officer conduct­ ing public business, including protecting people, esp. the poor, from legal injustices, adjudicating certain minor offenses and pecuniary matters, and acting as a notary in the execution of a will or other transfer. Often shortened to defensor. defensor fidei (di-fen-sdr fI-dee-I), n. [Latin "defender of the faith"] Hist. A unique title of the sovereign of England, first granted in 1521 by Pope Leo X to Henry VIII for writing against Martin Luther.• The Pope later withdrew the title because of Henry's harsh regulation of the church, but the title was again bestowed on the King by Parliament in 1544. The term is similar to the application of "Catholic" to the Spanish sovereign and "Most Christian" to the French sovereign. Also termed Defender of the Faith. defensum (di-fen-sdm), n. [Law Latin "an inclosure"] Hist. 1. A portion of an open field allotted for corn or hay but not for feeding. 2. A wood partially enclosed to prevent the cattle from damaging the undergrowth. 3. A prohibition. defer, vb. (17c) 1. To postpone; to delay . 2. To show deference to (another); to yield to the opinion of . deferment, n. 1. The act of delaying; postponement <deferment of a judicial decision>. 2. Military law. A delay in serving in the military. [Cases: Armed Services (;:::>20.6.] 3. Military law. A delay in serving confinement that results from a court-martial until the sentence has been approved and its execution has been ordered.• The convening authority may grant a defer­ ment. [Cases: Armed Services ~48; Military Justice (;'-:::> 1399.] - defer, vb. deferral of taxes. The postponement of paying a tax from one year to another, as by contributing money to an IRA, for which earnings and contributions will be taxed only when the money is withdrawn. deferral state. (1977) Under the Age Discrimination in Employment Act (ADEA), a state that has its own anti-discrimination legislation and enforcement mech­ anism, so that the time to file a federal lawsuit under the ADEA is postponed until state remedies have been exhausted. [Cases: Civil Rights 1507.] deferred adjudication. See deferred judgment under JUDGMENT.

deferred-adjudication probation. See deferred judgment under JUDGMENT. deferred annuity. See ANNUITY. deferred charge. (I917) An expense not currently rec­ ognized on an income statement but carried forward on the balance sheet as an asset to be written off in the future . deferred claim. (1900) A claim postponed to a future accounting period. deferred compensation. See COMPENSATION.

487 deferred credit. A credit (such as a premium on an issued bond) that is required to be spread over later account­ ing periods. deferred dividend. See DIVIDEND. deferred-dividend insurance policy. See INSURANCE POLICY. deferred expense. See EXPENSE. deferred income. See INCOME. deferred-interest bond. See BOND (3). deferred judgment. See JUDGMENT. deferred lien. See LIEN. deferred payment. (1831) A principal-and-interest payment that is postponed; an installment payment. deferred-payment annuity. See deferred annuity under ANNUITY. deferred prosecution. See deferred judgment under JUDGMENT. deferred revenue. See prepaid income under INCOME. deferred sentence. See SENTENCE. deferred stock. See STOCK. deficiency, n. (17c) 1. A lack, shortage, or insufficiency. 2. A shortfall in paying taxes; the amount by which the tax properly due exceeds the sum ofthe amount of tax shown on a taxpayer's return. - Also termed tax

deficiency; income-tax deficiency; deficiency in tax. 3. The amount still owed when the property secured by a mortgage is sold at a foreclosure sale for less than the outstanding debt; esp., the shortfall between the proceeds from a foreclosure sale and an amount con­ sisting of the principal debt plus interest plus the fore­ closure costs. See deficiency judgment under JUDGMENT. [Cases: Mortgages ~375, 555-562.] deficiency assessment. See ASSESSMENT. deficiency bill. See BILL (3). deficiency decree. See deficiency judgment under JUDGMENT. deficiency dividend. See DIVIDEND. deficiency in tax. See DEFICIENCY (2). deficiency judgment. See JUDGMENT. deficiency letter. 1. An IRS letter to a taxpayer, detail­ ing the ways in which a tax return seems to be defi­ cient. 2. An SEC letter to a registrant of a securities offering, detailing the ways in which the registration statement seems not to conform to federal disclosure requirements. Also termed letter ofcomment; letter of comments. See NINETY-DAY LETTER; THIRTY-DAY LETTER. deficiency notice. See NINETY-DAY LETTER. deficiency suit. (1927) An action to recover the difference between a mortgage debt and the amount realized on foreclosure. See deficiency judgment under JUDGMENT. [Cases: Mortgages C-~'561.]

de finibus levatis

deficit. (lSc) 1. A deficiency or disadvantage; a deficiency in the amount or quality of something. trade deficit. In economics, the excess ofmerchandise imports over merchandise exports during a specific period. Also termed trade gap. Cf. trade surplus under SURPLUS. 2. An excess of expenditures or liabilities over revenues or assets. deficit spending. (193S) The practice of making expen­ ditures in excess of income, usu. from borrowed funds rather than actual revenues or surplus. de fide instrumentorum (dee fI-dee in-stra-men-tor-am). [Latin] Roman & Scots law. On the reliance to be placed on written documents. - The phrase appeared in refer­ ence to actions of rescission based on forgery. de fideli administratione officii (dee fi-dee-II ad-min-a­ stray-shee-oh-nee a-fish-ee-I). [Law Latin "of faithful administration of office"] Scots law. An oath to faith­ fully execute the duties of one's public office or duty.­ Often shortened to de fideli administratione. defile (di-fd), vb. (14c) L To make dirty; to physically soil. 2. To figuratively tarnish; to dishonor. 3. To make ceremonially unclean; to desecrate. 4. To morally corrupt (someone). 5. Archaic. To debauch (a person); to deprive (a person) of chastity. defilement (di-fd-mant), n. 1. An act of defiling. 2. A condition of being defiled. define, vb. 1. To state or explain explicitly. 2. To fix or establish (boundaries or limits). 3. To set forth the meaning of (a word or phrase). defined-benefit pension plan. See PENSION PLAN. defined-benefit plan. See EMPLOYEE BENEFIT PLAN. defined-contribution pension plan. See defined-contri­ bution plan under EMPLOYEE BENEFIT PLAN. defined-contribntion plan. See EMPLOYEE BENEFIT PLAN. defined pension plan. See PENSION PLAN. defined term. In legal drafting, a word or phrase given a specific meaning for purposes of the document in which it appears; a definiendum. de fine force (dee fI-nee fors). [Law French] Of pure necessity. de fine non capiendo pro pulchre placitando (dee fr -nee non kap-ee-en-doh proh pal-kree plas-a-tan-doh), n. [Law Latin "of not taking a fine for amending a bad pleading"] Hist. A writ prohibiting the imposition of a fine for bad pleading. See BEAUPLEADER. de fine pro redisseisina capiendo (dee fr-nee proh ree­ dis-see-zin-a kap-ee-en-doh), n. [Law Latin "of a fine paid for one imprisoned for redisseisin"] His/. A writ releaSing a person who paid a reasonable fine after being imprisoned for a redisseisin. de finibus leva tis (dee fIona-bas la-vay-tis), n. [Law Latin "concerning fines levied"] Hist. The statute requiring

any levied fines to be read solemnly in open court. 27 Edw.l. definite failure of issue. See FAILURE OF ISSUE. definite sentence. See determinate sentence under SENTENCE. definitio (def-a-nish-ee-oh), n. [fro Latin definire "defi­ nition"] Civil law. l. A definition; an explanation of something. 2. The establishment of a general rule. 3. A boundary. PI. definitiones. definition. (14c) The meaning of a term as explicitly stated in a drafted document such as a contract, a CO[­ porate bylaw, an ordinance, or a statute; a definiens. lexical definition. (1875) A dictionary-style definition of a word, purporting to give the full meaning of a term. stipulative definition. (1989) A definition that, for purposes of the document in which it appears, arbi­ trarily clarifies a term with uncertain boundaries or that includes or excludes specified items from the ambit of the term. definitive judgment. See final judgment under JUDGMENT. definitive partition. See PARTITION. definitive sentence. See determinate sentence under SENTENCE. deflation, n. A general decline in the price of goods and deflate, services. Cf. INFLATION; DISINFLATION. vb. deflationary, adj. deforce, vb. (lSc) I. To keep (lands) from the true owner by means of force. 2. To oust another from possession by means of force. 3. To detain (a creditor's money) unjustly and forcibly. - deforciant, n. "The character of the action of debt is well illustrated by the form of the writ as given by Glanville. It directs the sheriff to order the debtor to render a stated sum which he owes to the plaintiff, 'and whereof the plaintiff complains that the defendant unjustly deforces him,' and, if he will not obey, he is to be summoned before the King's Court. The plaintiff is 'deforced' of money just as in a writ of right he is 'deforced' of land. It is true that the term 'deforces' disap­ peared from the writ shortly after Glanville's time, the word debet taking its place: but this seems to have been a matter of form, not of substance. The plaintiff sought to recover the money due as his property." William F. Walsh, Outlines of the Hisrory of English and American Law 411 (1924).

deforcement. 1. An act of keeping lands from the true owner by force. 2. An act ofousting another from pos­ session by means of force. 3. An act ofdetaining a cred­ itor's money unjustly and forcibly. deforciant (di-for-shant), n. [fro Law Latin deforcians "a deforcer"]l. A person who prevents another from taking possession of property. 2. The defendant in an action of fine. See FINE (1). deforciare (di-for-shee-air-ee), vb. [fro Law Latin defor­ tiare "to deforce"] Hist. To withhold property (such as land and tenements) from the true owner. deforciatio (di-for-shee-ay-shee-oh), n. [Law Latin "a distress"] Hist. A seizure of goods to satisfy a debt.

de forisfactura maritagii (dee for-is-fak-tyoor-a mar­ a-tay-jee-I), n. [Law Latin "of forfeiture of marriage"] Hist. A writ forfeiting a marriage. defossion (di-fosh-in), n. [ff. Latin de "down" + fodere "dig"] The punishment of being buried alive. de frangentibus prisonam (dee fran-jen-ti-bas priz-a­ nam), n. [Latin "of those who break prison"] Hist. The statute providing that an escaped prisoner will not be put to death or forfeit a limb simply for escaping from prison unless the original crime required that penalty upon conviction. 1 Edw.2. defraud, vb. (14c) To cause injury or loss to (a person) by deceit, See FRAUD. defraudation. The perpetration of a fraud; the act of committing fraud. defrauder. See FRAUDFEASOR. defunct, adj. Dead; extinct <defunct corporation>. defunct marriage. See MARRIAGE (1). defunctus (di-fangk-tas), adj. [Latin] Dead, as in defunc­ tus sine prole ("dead without (leaving) issue"). de furto (dee far-toh), n. [Latin "of theft"] Hist. In England, a type of criminal appeal. defuturo (dee fyuu-t[y]uur-oh). [Latin] Hist. Regarding the future; at a future time. - The phrase usu. appeared in reference to a marriage promise, which was not binding if it mentioned marriage at a future date. C£. DE PRAESENTI. degaster (day-gas-tay), vb. [fro Old French degaster "to spoil"] To waste. de gestu et fama (dee jes-tyfy]oo et fay-rna), n. [Law Latin "of behavior and reputation"] His!. A writ avail­ able to a person whose character and reputation had been impeached. degradation (deg-ra-day-shan). (l6c) I. A reduction in rank, degree, or dignity; sped£., censure of a clergy member by divestiture of holy orders, either by word or by a solemn divestiture of robes and other insignia. C£. DEPOSITION (4); DEPRIVATION (4). 2. A moral or intellectual decadence or degeneration; a lessening of a person's or thing's character or quality <degradation of resources>. 3. A wearing down of something, as by erosion. de gratia (dee gray-shee-a). [Latin] Offavor; by grace, as in de speciali gratia ("of special grace or favor"). degree. (13c) l. Generally, a classification or specification <degrees ofproof>. 2. An incremental measure ofguilt or negligence; a level based on the seriousness of an offense <murder in the first degree>. [Cases: Criminal Law (::=28.]3. A stage in a process; a step in a series of steps toward an end . 4. A stage in intensity . 5. In the line of descent, a measure of removal determining the prox­ imity of a blood or marital relationship .• In the civil law, and in the degree­ of-relationship system used by many American juris­ dictions, an intestate estate passes to the dosest ofkin, counting degrees ofkinship. To calculate the degree of relationship of the decedent to the claimant, one counts the steps (one for each generation) up from the decedent to the nearest common ancestor of the decedent and the claimant, and on down to the claimant from the common ancestor. The total number of steps is the degree of relationship. For example, a decedent's cousin stands in the fourth degree of relationship. Degrees of relationship are used not only to determine who is the closest heir but also to establish the incest prohibition in marriage requirements. Also termed degree ofkin; degree of relationship; degree of descent. See AFFINITY (2); CONSANGUINITY. [Cases: Descent and Distribution

equal degree. (16c) A relationship between two or more relatives who are the same number of steps away from a common ancestor. [Cases: Descent and Distribu­ tion prohibited degree. (17c) A degree of relationship so dose (as between brother and sister) that marriage between the persons is forbidden by law.• Generally, with slight variations from jurisdiction to jurisdic­ tion, the law forbids marriages between all persons lineally related and within the third civil-law degree of relationship. That is, aunt-nephew and uncle­ niece relations are prohibited. Prohibited degrees are also known as Levitical degrees, since the incest prohibition is pronounced in the Bible in Leviticus 18:6-18. Also termed forbidden degree. [Cases: Marriage 6. A title conferred on a graduate of a school, college, or university, either after the completion of required studies or in honor of special achievements <she began studying for the bar exam the day after receiving her law degree>. Cf. DIPLOMA (3). degree of care. (17c) A standard of care to be exercised in a given situation. See CARE. [Cases: Negligence c:=:> 230.] degree of crime. (1826) 1. A division or classification of a single crime into several grades of guilt, according to the circumstances surrounding the crime's commis­ sion, such as aggravating factors present or the type of injury suffered. [Cases: Criminal Law (:=-/28.J 2. A division ofcrimes generally, such as felonies or misde­ meanors. [Cases: Criminal Law degree of descent. See DEGREE (5). degree ofkin. See DEGREE (5). degree of negligence. (I8c) One of the varying levels of negligence typically deSignated as slight negligence, ordinary negligence, and See NEGLI­ GENCE. [Cases: Negligence "Although the common law concept of degrees of neg­ ligence has been criticized or repudiated in many juris­ dictions, the usefulness of the view at common law that degrees of negligence exist is still recognized in a number of jurisdictions, particularly in regard to the distinction

between ordinary and gross negligence. Furthermore, leg­ islators have not been dissuaded from using the degrees of negligence concept when it is helpful to achieve a legisla­ tive purpose." 57A Am. Jur. 2d Negligence § 233, at 274 (1989).

degree of proof. 1. See BURDEN OF

PROOF.

2.

BURDEN

OF PRODUCTION.

degree of relationship. See DEGREE (5). de haerede deliberando illi qui habet custodiam terrae (dee hi-ree-dee di-lib-. Cf. DE FACTO; DE GRATIA. de jure corporation. See CORPORATION. de jure government. See GOVERNMENT. de jure officer. See officer de jure under OFFICER (1). de jure segregation. See SEGREGATION (2). de lana caprina (rixari) (dee lay-nd ko~prI-no rik-sair-l). [Latin] Hist. To contend about a goat's hair; to dispute about nothing. delantal (di-lan-t;:JI). [Old English] Hist. See UTLAND. de la plus belle (da lah ploo bel), adj. [Law French] Hist. Of the most fair .• This term described a form of dower assigned out of the husband's best tenements. The term was used in military tenures but was abol­ ished by statute. 12 Car. 2, ch. 24. - Also termed de Ia pluis beale. delate (di-Iayt), vb. To accuse, to inform against, to denounce in court, esp. a Scottish ecclesiastical court. - delation, n. delator, n. de latere (dee lat-ar-eel. [Latin] Of collaterals; from the side. delatio (di-Iay-shee-oh), n. [ff. Latin deferre "to denounce"] Roman & dvillaw. 1. An accusation. 2. Information. delator (di-Iay-tor), n. [Latin) Roman law. 1. An informer. 2. An accuser; esp., a person who made a practice of informing on and prosecuting others, esp. for fiscal offenses. - This was at first encouraged, but later the informer became subject to the death penalty. PI. dela­ tores. delatura (del-a-tyoor~a), n. [fro Latin deferre "to denounce"] Hist. A reward given to an informer. Delaware trust. See asset-protection trust under TRUST (3)·

delay, n. (13c) 1. The act of postponing or slowing . Cf. VEXATIOUS DELAY. 2. An instance at which something is postponed or slowed . 3. The period during which some­ thing is postponed or slowed . 4. Civil law. The period within which a party to a suit must take some action, such as perfecting an appeal or responding to a written-discovery request . delayed appeal. See APPEAL. delayed-compHance order. Environmental law. An order issued by the Environmental Protection Agency or by a state agency to an existing source ofpollutants, whereby the deadline for complying with an implementation plan is postponed. See IMPLEMENTATION PLAN. delayed funds availability. A hold that a bank places on uncollected funds that are represented by a deposited check. Abbr. DFA. delayed rental. See RENTAL. delayed sentence. See SENTENCE. delay rental. Oil & gas. A payment from the lessee to the lessor made to maintain the mineral lease from period to period during the primary term without an obliga­ tion to drill. See DRILLING-DELAY RENTAL CLAUSE; "or" lease, paid-up lease, "until" lease under LEASE.

del bien estre (del been es-t;:lr). [Law French] Rist. Of well-being. See DE BENE ESSE. del credere (del kred-;:l-ray or kray-da-ray), adj. [Italian] (l8c) Of belief or trust. "'Del credere' agents for the sale of goods, in consideration of a higher payment than usual, become responsible for the solvency of the person to whom they sell them." Thomas E. Holland, The Elements of Jurisprudence 304 (13th ed.

1924).

del credere agent. See AGENT (2).

del credere bailiff. See FACTOR (2).

del credere commission. A factor's commission that is

increased because the factor guarantees the payment to the principal of all debts that become due through the agency relationship. [Cases: Factors 44.) del credere factor. See del credere agent under AGENT. delectus personae (di-Iek-t;:ls p;:lr-soh~nee). [Latin "choice of the person»] The rule that when personal relations are important. a person cannot be compelled to asso­ ciate with another person. - Based on this principle. a partner has the right to accept or reject a candidate proposed as a new partner. delegable duty. See DUTY (1). delegate (del-;:l-git). n. (lSc) 1. One who represents or acts for another person or a group. 2. Parliamentary law. A voting member of a convention, whether entitled to vote as an elected or appointed delegate (sense 1), as an

upgraded alternate, or ex officio. See CONVENTION (4); ALTERNATE; EX OFFICIO.

instructed delegate. A delegate bound to vote accord­ ing to a constituency's expressed wishes. Cf. unin­ structed delegate; UNIT RULE (2). uninstructed delegate. A delegate who is not instructed and may therefore vote according to his or her con­ science. Cf. instructed delegate. delegate assembly. See CONVENTION (4). delegated legislation. See REGULATION (3). delegated power. See POWER (3). delegatee (del-a-g;l-tee). (1875) An agent or representa­ tive to whom a matter is delegated. delegation, n. (1612) 1. The act ofentrusting another with authority or empowering another to act as an agent or representative <delegation of contractual duties>. 2. A group of representatives . delegate (del-;:l-gayt) (for sense 1), vb. delegable (del-a-g;:l-b;:ll) (for sense 1), adj. delegation doctrine. (1883) Constitutional law. The principle (based on the separation-ai-powers concept) limiting Congress's ability to transfer its legislative power to another governmental branch, esp. the execu­ tive branch. - Delegation is permitted only ifCongress prescribes an intelligible principle to guide an executive agency in making policy. - Also termed nondelegation doctrine. [Cases: Constitutional Law (:::::>2400,2407.] delegation of duties. (1893) Contracts. A transaction by which a party to a contract arranges to have a third party perform the party's contractual duties. delegation of powers. (1854) A transfer of authority by one branch of government to another branch or to an administrative agency. See DELEGATION DOCTRINE. [Cases: Constitutional Law C=c 2333.]

de legatis etfidei commissis (dee Ii-gay-tis et fI-dee-I k;:l-mis-is). [Latin] Oflegacies and trusts. - This is a title in the Pandects. delegator (del-i-gay-t;:lr or -tor). One who delegates (a responsibility, etc.) to another. de lege ferenda (dee lee-jee f;:l-ren-d;:l). [Latin "from law to be passed"] Int'llaw. A proposed principle that might be applied to a given situation instead or in the absence of a legal principle that is in force. Cf. DE LEGE LATA. de lege lata (dee lee-jee lay-t;:l). [Latin "from law passed"] Int'llaw. 1. Existing law. 2. The principle that a court should decide based on actual law and not on how it thinks the law ought to be. Cf. DE LEGE FERENDA. deleterious (del-i'l-teer-ee-i'ls), adj. (1643) 1. Poisonous <deleterious toxins>. 2. Unwholesome; psychologically or physically harmful <deleterious influence>. de libera fa Ida (dee lib-r-a fal-da or fawl-d;:l), n. [Law Latin "of free fold"] Hist. A writ allowing a free feeding, esp. of sheep on land. - This was a form of quod per­ mittat.

de libera piscaria

de libera piscaria (dee lib-ar-a pi-skair-ee-d), n. [Law Latin "of free fishery"] Hist. A writ allowing an exclu­ sive right to fish on public navigable water.• This was a form of quod permittat. deliberate (di-Iib-[d]-rit), adj. (l5c) 1. Intentional; pre­ meditated; fully considered. 2. Unimpulsive; slow in deciding. deliberate (di-lib-d-rate), vb. (Of a court, jury, etc.) to weigh and analyze all the evidence after closing arguments . deliberate elicitation. (1966) Criminal procedure. The purposeful yet covert drawing forth of an incrimi­ nating response (usu. not during a formal interroga­ tion) from a suspect whose Sixth Amendment right to counsel has attached but who has not waived that right. • Deliberate elicitation may occur, for example, when a police officer engages an arrested suspect in conversation on the way to the police station. Deliber­ ate elicitation violates the Sixth Amendment. Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199 (1964). See MASSIAH RULE. deliberate indifference. See INDIFFERENCE. deliberate-indifference instruction. See JEWELL INSTRUCTION. deliberate speed, with all. (l8I7) As quickly as the main­ tenance of law and order and the welfare of the people will allow, esp. with respect to the desegregation of public schools. Brown v. Board ofEduc., 347 U.S. 483, 74 S.Ct. 686 (1954). [Cases: Schools C:::> 13(9).] deliberation, n. (l4c) The act of carefully considering issues and options before making a decision or taking some action; esp., the process by which a jury reaches a verdict, as by analyzing, discussing, and weighing the evidence. See CONSIDERATION (3). [Cases: Criminal Law 306.1 deliberate (di-lib-a-rayt), vb. deliberative assembly. See ASSEMBLY. deliberative-process privilege. (1977) The principle that a decision-maker's thoughts and how they led to a decision are not subject to revelation or scrutiny. See U.S. v. Morgan, 313 U.S. 409, 61 S.Ct. 999 (1941). • An exception to the rule may be allowed if a party can clearly show that the decision resulted from bias, bad faith, misconduct, or illegal or unlawful action. The privilege is meant to encourage open and inde­ pendent discussion among those who develop govern­ ment policy. [Cases: Privileged Communications and Confidentiality C:::>361.] Also termed mental-process privilege.

de libero homine exhibendo (dee lib- 58; Deposits and Escrows (;:::>21.] symbolic delivery. (I8c) The constructive delivery ofthe subject matter of a sale or gift by the actual delivery of an article that represents the item, that renders access to it possible, or that provides evidence of the title to it, such as the key to a warehouse or a bill oflading for 162.] goods on shipboard. [Cases: Sales unconditional delivery. (I8c) A delivery that immedi­ ately passes both possession and title and that takes effect immediately. delivery bond. See forthcoming bond under BOND (2). delivery in escrow. (1842) The physical transfer of some­ thing to an escrow agent to be held until some condi­ tion is met, at which time the agent will release it. _ An example of such a delivery is a stock buyer's transfer of cash to a bank that will give the seller the cash upon receiving the stock certificates. This type of delivery creates immediate conditional rights in the promisee. The device may be used to create an option contract in which the promisee has the option. See ESCROW. [Cases: 14.] Deposits and Escrows delivery ofdeed. (lSc) The placing ofa deed in the grant­ ee's hands or within the grantee's control. • By this act, the grantor shows an intention that the deed operates immediately as a conveyance. A deed may also be held to be delivered when the grantor manifests the inten­ tion to complete the conveyance, regardless of actual delivery. [Cases: Deeds (;:::>54-67.] delivery order. A written order to deliver goods, directed to a warehouseman, carrier, or other person who ordi­ narily issues warehouse receipts or bills oflading. UCC § 7-1D2(l)(d). de lucranda dote (dee loo-kran-dd doh-tee). [Latin "of being enriched by the dowry"] Hist. A spousal agree­ ment giving a husband the right to retain his wife's dowry upon her death. de lunatico inquirendo (dee loo-nat-;J-koh in-kw;J-ren­ doh), n. [Law Latin "for inquiring about a lunatic"] Hist . A writ or commission to determine whether a person is a lunatic. - Also termed commission oflunacy. demo abbr. DEMISE. de magna assisa eligenda (dee mag-nd ;J-SI-Z;) el-i­ ;en-d;J), n. [Law Latin "of choosing the grand assize"] Hist. A writ ordering a sheriff to summon 4 knights to give oaths before the justices ofassize and then choose 12 more knights to form a grand assize to determine who had the right in a writ of right. demain. See DEMESNE. de malo (dee mal-oh). [Law Latin] Of illness.• This term defined certain legal excuses, such as de malo lecti ("of illness in bed"), de malo veniendi ("of illness or

495 misfortune in coming where the court is"), and de malo villae ("of illness in town where the court is"). demand, n. (l3c) 1. The assertion of a legal or proce­ dural right. contingent demand. A demand that cannot be fixed because it depends on the occurrence of a contin­ gency, cross-demand, (18c) A party's demand opposing an adverse party's demand. See COUNTERCLAIM; CROSS­ CLAIM.

demand in reconvention. See reconventional demand. incidental demand. Civil law. A plea by which a party other than the plaintiff asserts a claim that is related to the plaintiff's suit. - Examples include a cross­ claim, a demand against a third party, an interven­ tion, and a reconventional demand. La. Code Civ. Proc. art. 1031. legal demand. A lawful demand made by an autho­ rized person. main demand. Civil law. A plaintiff's principal or primary claim against one or more defendants, con­ tained in an original or validly amended pleading. ­ Also termed principal demand; principal action. reconventional demand. Civil law. A plea by which a defendant asserts any claim that it has against the plaintiff, or any offset against the plaintiff's claim. - This plea is similar to the common-law counter­ claim. La. Code Civ. Proc. 1061 et seq. - Also termed demand in reconvention. 2. Parliamentary law. A request, usu. invoking a right, that must be granted on a Single member's motion. See REQUEST. 3. A request for payment of a debt or an amount due. 4. In economics, the intensity of buyer pressure on the availability and cost of a commodity or service. 3. A request for payment of a debt or an amount due. [Cases: Bills and Notes 393-399.] personal demand. An in-person demand for payment upon the drawer, maker, or acceptor of a bill or note. 4. In economics, the intensity ofbuyer pressure on the availability and cost of a commodity or service. aggregate demand. 1. The total amount spent on goods and services in an economy during a specific period. 2. The total demand for a firm's products and services during a specific period. derived demand. Product demand that is related to another product's demand. demand, vb. (14c) 1. To claim as one's due; to require; to seek relief. 2. To summon; to call into court. demandant. Archaic. The plaintiff in a real action (the defendant being called a tenant). See real action under ACTION.

demand clause. (1919) A provision in a note allOWing the holder to compel full payment ifthe maker fails to meet an installment. Cf. ACCELERATION CLAUSE. [Cases: Bills and Notes

de maritagio am;sso per defanam

demand deposit. See DEPOSIT (2). demand draft. See Sight draft under DRAFT. demand for document inspection. See REQUEST

FOR

PRODUCTION.

demand for relief. See PRAYER FOR RELIEF. demand in reconvention. See reconventional demand under DEMAND. demand instrument. (1924) An instrument payable on demand, at Sight, or on presentation, as opposed to an instrument that is payable at a set future date. ­ Also termed demand note. [Cases: Bills and Notes 129(3).] demand letter. (1911) A letter by which one party explains its legal position in a dispute and requests that the recipient take some action (such as paying money owed), or else risk being sued. _ Under some statutes (esp. consumer-protection laws), a demand letter is a prereqUisite for filing a lawsuit. demand loan. See call loan under LOAN. demand note. 1. See NDTE (1). 2. See DEMAND INSTRU­ MENT.

demand of oyer. Hist. The assertion of a party's right to hear, read, or inspect a deed of which profert is made by the opposing party in a pleading. See OYER (3); PROFERT.

demand of view. Hist. In a real action, a request by a defendant (called a tenant) to see the thing at issue to ascertain its identity and the circumstances of the claim. - If a real action was brought against a tenant who did not know what land was at issue, the tenant might demand a view. See VIEW (4). demand-pull inflation. See INFLATION. demand registration rights. See REGISTRATION RIGHTS. demandress. Archaic. A female demandant. See DEMAN­ DANT.

de manucaptione (dee man-ya-kap-shee-oh-nee), n. [Law Latin "of manucaption"] Hist. A writ ordering a sheriff to release on sufficient bail an accused felon whose initial offer of bail had been rejected. de manutenendo (dee man-y-nahnt on ;>-vahnt). [Law French] From this time forward. de mercatoribus (dee m;>r-k;>-tor-;>-b;>s), n. [Latin "of merchants"] Hist. The title of two statutes enacted in the lIth and 13th years ofthe reign of Edward I, provid­ ing that the land of a business debtor could be held by a creditor as security until the debt was paid. "But by the statute de mercatoribus ... the whole of a man's lands was liable to be pledged in a statute merchant, for a debt contracted in trade; though one· half of them was liable to be taken in execution for any other debt of the owner." 1 William Blackstone, Commentaries on the Laws

of England 161 (1765).

demesne (di-mayn or di-meen), n. [French] (14c) l. At common law, land held in one's own right, and not through a superior; esp., land attached to a manor and reserved for the court's own use. 2. Domain; realm. ­ Also spelled demain. ancient demesne. Hist. A manor that was held by the Crown at the time of William the Conqueror and was recorded in the Domesday Book. demesne as offee. Hist. Complete ownership of some­ thing. "But there is this distinction between the two species of hereditaments: that, of a corporeal inheritance a man shall be said to be seised in his demesne, as of fee; of an incor· poreal one, he shall only be said to be seised as of fee, and not in his demesne. For, as incorporeal hereditaments are in their nature collateral to, and issue out of, lands and houses, their owner hath no property, dominicum, or demesne, in the thing itself, but hath only something derived out of it; resembling the servitutes, or services, of the civil law." 2 William Blackstone, Commentaries on the

Laws of Eng/and 106 (1766).

demesne land. See LAND.

demesne land of the Crown. See Crown land under

LAND.

demesnial (di-may-nee-;>l or di-meen-ee-;>l), adj. Of or relating to a demesne. demi (dem-ee), n. [French] Half; the half.• The term is most often a combining form, as in demi-sangue. demidietas (dem-ee-dI-d-tas), n. [Law Latin] A half; a moiety. demilitarization. Int'llaw. The process by which a country obligates itself not to station military forces ­ or to maintain military installations - in specified areas or zones within its territory. demilitarized zone. Int'llaw. A territorial area in a country or between countries in which no military forces or military installations are stationed or main­ tained. demimark. Hist. Half a mark; money equal to six shil­ lings and eight pence, required to be tendered in a writ of right to force the demandant to prove seisin. Also termed half-mark. de minimis (d;> min-a-mis), adj. [Latin "of the least"] (1952) l. Trifling; minimal. 2. (Of a fact or thing) so insignificant that a court may overlook it in deciding an issue or case. 3. DE MINIMIS NON CURAT LEX. de minimis non curat lex (d;> min-d-mis non kyoor-at leks). [Latin] The law does not concern itself with trifles. Often shortened to de minimis. de minimis test. Copyright. A judicial test for determin­ ing whether a contributor to a joint work is an author tor legal purposes, based on whether the joint effort itself is an original expression that qualifies for copyright protection.• This test has been rejected in favor of the copyrightability test by most courts that have addressed the issue. Cf. COPYRIGHTABILlTY TEST. [Cases: Copy­ rights and Intellectual Property ('.::::>41(3).]

497

demote

de minis (dee min-is), n. [Latin "of threats"] Hist. A writ ordering a person to keep the peace when the person has threatened another person with bodily harm or property destruction. deminutio (dee-mi-n[y]oo-shee-oh), n. [ff. Latin deminu­ ere "taking away"] Roman law. A deprivation or loss .• The term appeared, for example, in the phrase capitis deminutio "the loss of civil status." - Also spelled dimi­ nutio. See CAPITIS DEMTNUTIO. Pl. deminutiones (dee­ mi-n[y]oo-shee-oh-neez). demi-sangue (dem-ee-sang). [Law French] Hist. Half­ blood; blood on either the father's or the mother's side. Also termed demy-sangue. demise (di-mIZ), n. (15c) 1. The conveyance of an estate usu. for a term of years, a lease . 2. The instrument by which such a con­ veyance is accomplished . 3. The passing of property by descent or bequest 189.] 3. To object to the legal sufficiency of a claim alleged in a pleading while admitting the truth of the facts stated. [Cases: Pleading (;::> 189,214.] demurrable (di-mdr-d-bdl), adj. (1827) (Of a claim, pleading, etc.) subject to a demurrer . See DEMURRER. demurrage (di-mdr-ij). (usu. pi.) Maritime law. 1. Liqui­ dated damages owed by a charterer to a shipowner for the charterer's failure to load or unload cargo by the agreed time. [Cases: Shipping (;::> 170.] contract demurrage. Demurrage paid by a vessel's charterer if the time to load or unload the vessel at port takes longer than that agreed on in the char­ terer's contract with the shipowner. Cf. DISPATCH MONEY. 'The contract may also provide that if ... the loading time exceeds that fixed by the charter, the charterer will pay a liquidated compensation termed 'contract demurrage.''' Frank l. Maraist, Admiralty in a Nutshell 56 (2d ed. 1988).

noncontract demurrage. Demurrage not provided by contract, but ordered by a court. - Also termed damages for detention. "After the ... days on contract demurrage have expired, the charterer of course still remains liable for further delay, but the liability now is one for noncontract demurrage, which will be fixed by the court just as would any other unliquidated claim for damages. Non·contract demurrage may also be referred to as 'damages for detention.'" Grant Gilmore & Charles l. BlackJr., The Law of Admiralty § 4·8, at 212 (2d ed. 1975).

2. A charge due for the late return of ocean containers or other equipment. demurrage lien. See LIEN. demurrant (di-mdr-dnt). One who demurs; esp., a litigant who files a demurrer. demurrer (di-mdr-dr). [Law French demorer "to wait or stay"] (l6c) A pleading stating that although the facts alleged in a complaint may be true, they are insufficient for the plaintiff to state a claim for relief and for the defendant to frame an answer.• In most jurisdictions, such a pleading is now termed a motion to dismiss, but demurrer is still used in a few states, including Cali­ fornia, Nebraska, and Pennsylvania. Cf. DENIAL (1). [Cases: Federal Civil Procedure (;::>658,1725; Pleading (;::> 189, 193(5).] 'The word 'demurrer,' derived from the Latin demorari, or the French demorrer, meaning to 'wait or stay,' imports that the party demurring waits or stays in his proceedings in the action until the judgment of the court is given whether he is bound to answer to so insufficient a pleading. Each party may demur to what he deems an insufficient pleading of the other. The demurrer was general when it was to matter of substance; it was special when it was made to matter of form, and must specifically point out the defect." Edwin

E. Bryant, The Law of Pleading Under the Codes Procedure 15 (2d ed. 1899).

of Civil

demurrer ore tenus. An oral demurrer. See ORE TENUS. "The codes either expressly or by implication require all pleadings to be in writing. To this proposition there is the apparent exception that objections to the jurisdiction of the court, or to the sufficiency of a pleading, that it does not state a cause of action or defence, may be raised on the trial by what is sometimes called a demurrer are tenus (that is, orally, - by word of mouth)." Edwin E. Bryant, The Law of Pleading Under the Codes of Civil Procedure 179 (2d ed. 1899).

general demurrer. See general exception (1) under EXCEPTION (1). parol demurrer. Hist. A suspension of proceedings during the minority of an infant. speaking demurrer. (l8c) A demurrer that cannot be sustained because it introduces new facts not con­ tained in the complaint. [Cases: Pleading (;::>210.] special demurrer. (17c) A demurrer that states grounds for an objection and specifically identifies the nature of the defect, such as that the pleading violates the rules of pleading or practice .• If a pleading is defec­ tive in form but not substance, the defect must be pointed out by a special demurrer. [Cases: Pleading (;::>206.] demurrer book. Hist. A record of the demurrer issue used by the court and counsel in argument. demurrer to evidence. (17c) A party's objection or excep­ tion that the evidence is legally insufficient to make a case.• Its effect, upon joinder in the demurrer by the opposite party, is that the jury is discharged and the demurrer is entered on record and decided by the court. A demurrer to evidence admits the truth of all the evidence and the legal deductions from that evidence. [Cases: Criminal Law (;::>752; Trial (;::> 150.] demurrer to interrogatories. (18c) The objection or reason given by a witness for failing to answer an inter­ rogatory. demutualization, n. The process of converting a mutual insurance company (which is owned by its policyhold­ ers) to a stock insurance company (which is owned by outside shareholders), usu. as a means of increasing the insurer's capital by allowing the insurer to issue shares. • About half the states have demutualization statutes authorizing such a conversion. [Cases: Insurance (;::> 1160.] - demutualize, vb. demy-sangue. See DEMI-SANGUE. den and strond (den an[d] strond). Hist. Permission for a ship to run aground or strand itself. denarius (di-nair-ee-ds), n. [Law Latin "penny"] 1. Roman law. The principal silver coin used by the Romans. 2. Hist. An English penny; a pence. 3. (pl.) Slang. Money in general. PI. denarii. - Also termed (in senses 1 & 3) denier. denarius Dei (di-nair-ee-ds dee-I), n. [Law Latin "God's penny"] Hist. Earnest money exchanged by contracting

de non alienando sine consensu superiorum

499

parties, so called because the money was originally given either to the church or to the poor.• The denarius Dei was not part of the consideration. Also termed argentum dei. See ARRA. denationalization. 1. lnt'llaw. The unilateral act of a country in depriving a person of nationality, whether by administrative decision or by operation of law. ­ Strictly, the term does not cover a person's renuncia­ tion ofcitizenship. 2. The act of returning government ownership and control of an industry or function to private ownership and control. Cf. PRIVATIZATION. [Cases: Aliens, Immigration, and Citizenship 729.] - denationalize, vb. de nativo habendo (dee na-tI-voh ha-ben-doh), n. [Law Latin "about a serf to be held"] Hist. A writ directing a sheriff to apprehend and return a runaway serf to the serf's lord .• A trial on the writ would determine the lord's ownership status. de natura brevium (dee m-tyoor-a bree-vee-a). [Latin] Concerning the nature of writs.• This was a common title of textbooks on English medieval law. denaturalization. The process by which a government deprives a naturalized citizen of all rights, duties, and protections of citizenship. See 8 USCA § 1451. denat­ uralize, vb. denelage. See DANELAW. denial, n. (l6c) 1. A refusal or rejection; esp., a court's refusal to grant a request presented in a motion or petition <denial of the motion for summary judgment>. 2. A defendant's response controverting the facts that a plaintiff has alleged in a complaint; a repudiation . Cf. DEMURRER. [Cases: Federal Civil Procedure (;=741; Pleading conjunctive denial. (1860) A response that controverts all the material facts alleged in a complaint. disjunctive denial. (1920) A response that controverts the truthfulness oftwo or more factual allegations of a complaint in the alternative. general denial. (16c) A response that puts in issue all the material assertions of a complaint or petition. Also termed general plea. Federal Civil Pro­ cedure (;=742; Pleading qualified general denial. (1844) A general denial of all the allegations except the allegations that the pleader expressly admits. "The qualified general denial most frequently is used when a limited number of allegations in the complaint are to be admitted. This form of denial also is employed when defendant cannot expressly deny an averment in his opponent's pleading and therefore cannot submit a general denial, although defendant wants to put plaintiff to his proof on that averment by interposing a denial of knowledge or information sufficient to form a belief or a denial on information and belief." 5 Charles Alan Wright & Arthur Miller, Federal Practice and Procedure § 1266, at 405 (2d ed. 1990).

specific denial. (1850) A separate response applicable to one or more particular allegations in a complaint.

[Cases: Federal Civil Procedure ~ 742; Pleading C:=:;; 124.] 3. A refusal or rejection <denial of an employment application>. 4. A deprivation or withholding <denial of due process>. - deny, vb. denial ofjustice. Int'llaw. A defect in a country's organi­ zation of courts or administration ofjustice, resulting in the country's violating its international legal duties to protect aliens. - A denial of justice is a wrongful act under international law. - Also termed justitia denegata; deni de justice; refus de justice. denial-of-service attack. A malicious strike against a computer, website, network, server, or database deSigned to render it inaccessible, usu. byoverwhelm­ ing it with activity or by forcing it to malfunction. ­ Also termed nuke. Abbr. DoS attack. distributed denial-ol-service attack. A denial-of-ser· vice attack carried out by distributing a virus that causes infected computers to try to access the target computer at the same time. - Abbr. DDoS attack. denier, n. 1. (da-nyay) [French fro Latin denarius] DENARIUS (1). 2. DENARIUS (3). 3. (di-nI-ar). [Law French] Hist. Denial; refusal, as in refusal to pay rent when demanded. Denier aDieu (da-nyay ah dyuu or dyoo). [French "God's money"] French law. Earnest money exchanged by contracting parties. See DENARIUS DEI. denization (den-a-zay-shan). The act of making a person a denizen. See DENIZEN. - Also termed indenization. denize (den-Iz or di-nIz), vb. To make (a person) a denizen. See DENIZEN. denizen (den-a-zan).(15c) 1. A person given certain rights in a foreign nation or living habitually in a foreign nation. 2. English law. A person whose status is midway between being an alien and a natural-born or naturalized subject. Denman's Act. Hist. l. The (English) Evidence Act of 1843, providing that no person offered as a witness can be excluded because of incapacity due to a past crime or an interest in the proceedings. - Also termed Lord Denman's Act. 2. The (English) Criminal Procedure Act of 1865 that allowed defense counsel to sum up evidence as allowed in a civil trial, to prove contradic­ tory statements made by an adverse witness, to prove a previous criminal conviction ofan adverse witness, and to compare samples of disputed handwriting. - Also termed Mr. Denman's Act. denomination. (I5c) 1. An act ofnaming. 2. A collective designation, esp. of a religiOUS sect. de non alienando (dee non ay-lee-a-nan-doh). [Law Latin] Scots law. For not alienating. _ The phrase was used to restrict the transfer of property. de non alienando sine consensu superiorum (dee non ay-lee-a-nan-doh SI-nee kan-sen-s[y]oo s[y]oo-peer­ ee-or-am). [Law Latin] Scots law. Concerning the nonalienation of the lands without the consent of the

superior.• The phrase was frequently present in a charter to a vassal.

de non contrahendo debito (dee non kon-tr33.) Department of Health and Human Services. The cabi­ net-level department of the federal government respon­ sible for matters ofhealth, welfare, and income security. • It was originally established by Reorganization Plan

No.1 of 1953 under the title Department of Health,

Education, and Welfare, The Department is headed by

the Secretary of Health and Human Services. Abbr.

HHS. [Cases: Social Security and Public Welfare

5.)

Department of Homeland Security. '{he cabinet-level department of the federal government responsible for ensuring security within the U.S. borders and in its territories and possessions.• The Department has five major divisions: Border and Transportation Security, Emergency Preparedness and Response, Science and Technology, Information Analysis and Infrastruc­ ture, and Management. It was established in 2002 and began operating in 2003. Abbr. DHS. [Cases: War and National Emergency Department of Housing and Urban Development. The cabinet-level department of the federal government responsible for overseeing programs that are con­ cerned with hOUSing needs and fair-housing oppor­ tunities, and with improving and developing the

department of human services

nation's communities .• It was established in 1965 bv the Department of Housing and Urban Developmen't Act. 42 USCA §§ 3532-37. It is headed by the Secretary of Housing and Urban Development. - Abbr. HUD. [Cases: United States C:=>82(3).J department of human services. See DEPARTMENT OF PUBLIC WELFARE. - Abbr. DHS. Department of Justice. The federal executive division that is responsible for federal law enforcement and related programs and services.• The U.S. Attorney General heads this department, which has separate divisions for prosecuting cases under federal antitrust laws, tax laws, environmental laws, and criminal laws. The department also has a civil division that represents the U.S. government in cases involving tort claims and commercial litigation. - Abbr. DOJ. [Cases: Attorney General C:=>2.J Department of Labor. The cabinet-level department of the federal government responsible for promoting the welfare of wage earners and for improving working con­ ditions and opportunities for profitable employment. • Headed by the Secretary of Labor, it was created in 1913.29 USCA § 551. - Abbr. DOL. [Cases: Labor and Employment (',::;:>62.] department of public welfare. A state-government agency that administers public-assistance programs of all types, such as food stamps and hOUSing vouchers. • In many communities, this department is now called the Department of Human Services or Department of Social Services. Abbr. DPW. [Cases: Labor and Employment (>;)62.] Department ofSocial Services. See CHILD PROTECTIVE SERVICES. - Abbr. DSS. Department of State. The cabinet-level department of the federal government responsible for advising the President in formulating and executing foreign policy. • Headed by the Secretary of State, the Department negotiates treaties and other agreements with foreign nations; speaks for the United States before the United Nations and other international organizations; and rep­ resents the United States at international conferences. It was established in 1789 as the Department of Foreign Affairs and was renamed the Department ofState later the same year. 22 USCA 2651-2728. Foreign affairs are handled through six bureaus: African Affairs, European Affairs, East Asian and Pacific Affairs, Near East Affairs, South Asian Affairs, and Western Hemisphere Affairs. Also termed State Department. (Cases: United States Department of the Interior. The cabinet-level depart­ ment of the federal government responsible for managing the nation's public lands and minerals, national parks, national wildlife refuges, and western water resources, and for upholding federal trust respon­ sibilities to Indian tribes. - The Department also has responsibility for migratory-wildlife conservation; historical preservation; endangered species; surface­ mined-lands preservation and restoration; mapping;

502

and geological, hydrological, and biological science. It was created in 1849 and reorganized in 1950. Headed by the Secretary of the Interior, it administers several agencies, including the Bureau of Land Management, the Bureau ofIndian Affairs, the U.S. Fish and Wildlife Service, and the U.S. Geological Survey. - Also termed Interior Department. [Cases: Public Lands C:=>94.] Department of the Navy. See NAVY DEPARTMENT. Department ofthe Treasury. The cabinet-level depart­ ment of the federal government responsible for rec­ ommending tax and fiscal policies, collecting taxes, disbursing U.S. government funds, enforcing tax laws, and manufacturing coins and currency.• Created by Congress in 1789, it is headed by the Secretary of the Treasury. Also termed Treasury Department. [Cases: United States Department of Transportation. The federal executive division responsible for programs and policies concern­ ing transportation .• Through a series of specialized al'\. [Cases: Statutes C=>237, 239.] 2. Disparagement; depreciation in value or estimation <some argue that the derogation of family values has caused an increase in crime>. 3. Detraction, prejudice, or destruction (of a grant or right) . - derogate (der-;l-gayt), vb. derogation clause. Int'llaw. A reservation in a treaty allowing a signator to refuse to comply with certain provisions.• For example, a signator may be allowed to suspend some or all of its treaty obligations during a war or other national emergency. If a treaty lacks an express derogation clause, then general principles gov­ erning suspension or termination of treaties govern. derogation from grant. A provision in an instrument of transfer (such as a deed) that diminishes, avoids, or otherwise limits the grant itself. derogatory clause. (16c) 1. A statutory or contractual provision proclaiming that the document in which it appears, or a part of the document, cannot be repealed or amended.• Such provisions are considered ineffec­ tive. 'The one thing a sovereign legislature cannot do is truncate its own sovereignty by restricting its successors. A parlia­ ment sovereign today must also be sovereign tomorrow. What is technically called a clausula derogatoria is there­ fore ineffective: non impedit clausula derogatoria quo

minus ab eadem potestate res dissolvantur a qua constitu­ untur (a derogatory clause does not prevent things from being dissolved by the same power which created them)." F.A.R. Bennion, Statutory Interpretation § 140, at 313 (3d ed.1997).

2. A clause that a testator inserts secretly in a will, con­ taining a provision that any later will not having that precise clause is invalid.• A derogatory clause seeks to protect against a later will extorted by undue influence, duress, or violence. - Also termed clausula derogativa; clausula derogatoria. DES. abbr. DELIVERED EX SHIP. de salva gardia (dee sal-v;l gahr-dee-;l), n. [Law Latin "of safeguard"] A writ issued to protect strangers from harm while pursuing their legal rights in England.

de salvo conductu (dee sal-voh kdn-dak-t[y]oo). [Law Latin "of safe conduct"] A writ of safe conduct. de sa vie (dd sa vee). [Law French) Of one's own life, as distinguished from pur autre vie ("for another's life"). descend, vb. To pass (a decedent's property) by intestate succession. descendant (di-sen-ddnt), rl. (17c) One who follows in the bloodline of an ancestor, either lineally or collater­ ally.• Examples are children and grandchildren. Cf. ASCENDANT. [Cases: Descent and Distribution 25.] - descendant, adj. collater,!l descendant. Loosely, a blood relative who is not strictly a descendant, such as a niece or nephew. [Cases: Descent and Distribution lineal descendant. A blood relative in the direct line of descent. • Children, grandchildren, and great-grand­ children are lineal descendants. [Cases: Descent and Distribution (;:=>25.] descendibility offuture interests. (1936) The legal pos­ sibility that a future interest (such as a remainder or an executory interest) can legally pass by inheritance. descendible, adj. (15e) (Of property) capable of passing by descent or being inherited. See HERITABLE. descent, n. (15c) 1. The acquisition of real property by law, as by inheritance; the passing of intestate real property to heirs. See SUCCESSION (2). Cf. DISTRIBU­ TION (1); PURCHASE (2). [Cases: Descent and Distribu­ tion (;:=>1-19.)2. The fact or process of originating from a common ancestor. Cf. ASCENT. descend, vb. collateral descent. Descent in a collateral or oblique line, from brother to brother or cousin to cousin. • With collateral descent, the donor and donee are related through a common ancestor. Cf. collateral descendant under DESCENDANT. [Cases: Descent and Distribution direct-line descent. See lineal descent. immediate descent. 1. A descent directly to an heir, as from a grandmother to granddaughter, brought about by the earlier death of the mother. [Cases: Descent and Distribution 2. A direct descent without an intervening link in consanguinity, as from mother to daughter. lineal descent. Descent in a direct or straight line, as from father or grandfather to son or grandson. Also termed direct-line descent. [Cases: Descent and Distribution (;:=>25.] maternal-line descent. Descent between two persons, traced through the mother of the younger. mediate descent. 1. A descent not occurring immedi­ ately, as when a granddaughter receives land from her grandmother, which first passed to the mother. 2. A direct descent occurring through a link in consan­ guinity, as when a granddaughter receives land from her grandfather directly. "The law categorizes descents as either lineal or collat· eral, and as mediate or immediate. The term mediate or immediate descent may denote eIther the passing of the

estate, or the relationship between the intestate and the heir. The classification of descents as mediate or immedi· ate describes the proximity of the descent, while the char· acterization as lineal or collateral refers to the direction of the descent." 23 Am. Jur. 2d, Descent and Distribution § 49, at 787-88 (1983).

paternal-line descent. Descent between two persons, traced through the father of the younger. descent and distribution. 1. See intestate succession under SUCCESSION (2). 2. Broadly, the rules by which a decedent's property is passed, whether by intestate suc­ cession or by will. See DISTRIBUTION. [Cases: Descent and Distribution descent cast. Hist. The devolution ofrealty that has been acquired by disseisin, abatement, or intrusion, upon an heir whose ancestor died intestate .• This tolled the real owner's right of entry until the owner brought a legal action. Also termed descent that tolls entry. description. (14c) 1. A delineation or explanation of something by an account setting forth the subject's characteristics or qualities <description of a patent­ able process>. 2. A representation by words or drawing of something seen or heard or otherwise experienced <description of the criminal> <description of the accident>. 3. An enumeration or specific identifica­ tion of something <description of items in the estate>. 4. LEGAL DESCRIPTION. 5. Patents. In a U.S. patent application, the section that (1) comprehensively char­ acterizes the invention in language that is clear and complete enough to enable anyone of ordinary skill in the relevant art to make and use the invention; (2) explains the best mode for using the invention; and (3) usu. includes an explanation of drawings that are part of the application .• Ihe detailed description typically makes up the largest portion of the application's speci­ fication. - Also termed (in sense 5) enabling disclosure; written description. [Cases: Patents (;:=>99.] descriptio personae (di-skrip-shee-oh pdr-sob-nee). [Law Latin] Description of the person .• This phrase, typi­ cally used to identify or describe a person in a contract or deed, is not essential to a document's validity. Cf. DESIGNATIO PERSONAE.

descriptive comparative law. See COMPARATIVE LAW. descriptive mark. See descriptive trademark under TRADEMARK.

descriptive trademark. See TRADEMARK. descriptive word. Trademarks. A term that portrays a general characteristic or function of a product or service.• A descriptive word may not be registered as a trademark unless it has acquired secondary meaning in the minds of consumers such that it is directly asso­ ciated with one brand. [Cases: Trademarks (;:=> 1035.) "A trader cannot appropriate to his exclusive use words or symbols which (in the application he is to make of them) are public property. The right of all to use descriptive words in their ordinary and usual meaning must not be restricted. No sign or form of words may be appropriated as a trade-mark, for use in its primary meaning, which. from the nature of the fact conveyed by that primary meaning, others may employ with equal truth, and with

designating petition

511

equal right, for the same purpose." Harry D. Nims, The Law of Unfair Competition and Trade-Marks 524 (1929).

de scutagio habendo (dee skyoo-tay-jee-oh ha-ben­ doh), n. [Law Latin "for having scutage"] Hist. I. A writ ordering a tenant-in-chiefby knight's service to serve in a war, send a substitute, or pay a sum of money. 2. A writ authorizing a lord who had served in the war or paid the required fine, to recover the scutage from his knights' fees. See SCUTAGE. "Such a baron, having proved that he fulfilled his contract or paid his fine, will have a royal writ de scutagio habendo, whereby the sheriff will be ordered to cause him to have the scutage due from his tenants. Still, before he can get his scutage, he has to obtain something that the king is apt to treat as a favour." 1 Frederick Pollock & Frederic W. Maitland, The Historv of English Law Before the Time of Edward 1270 (2d ed. 1898).

desecrate, vb. (17c) To divest (a thing) of its sacred char­ acter; to defile or profane (a sacred thing). de secta ad molendinum (dee sek-ta ad ma-Ien-di-nam), n. [Law Latin "of suit at mill"] Hist. A writ forcing a person to continue grinding corn at a particular mill, as was customary, or to give a good reason why the custom should not be continued. "There are also other services, due by ancient custom and prescription only. Such is that of doing suit to another's mill: where the persons, resident in a particular place, by usage time out of mind have been accustomed to grind their corn at a certain mill; and afterwards any of them go to another mill, and Withdraw their suit. . from the ancient mill. This is not only a damage, but an injury, to the owner .... And for this injury the owner shall have a writ de secta ad molendinum commanding the defendant to do his suit at that mill ... or show good cause to the contrary: in which action the validity of the prescription may be tried, and if it be found for the owner, he shall recover damages against the defendant." 3 William Blackstone, Commentar· ies on the Laws of England 234~3S (1768).

de secUs non faciendis (dee sek-tis non fay-shee-en­ dis), 11. [Law Latin "of not doing services"] Hist. A writ exempting a ward or dowress from performing certain services. desegregation, n. (1951) 1. The abrogation of policies that separate people of different races into different insti­ tutions and facilities (such as public schools). [Cases: 2. The state of having had such policies Schools abrogated. Cf. INTEGRATION (4). - desegregate, vb. de seisin a habenda (dee see-zin-a ha-ben-da), n. [Law Latin "of holding seisin"] Hist. A writ ordering the sovereign to deliver seisin oflands and tenements to a lord, after holding them for the allowed year and a day because the lord's tenant committed a felony. deserter. Int'llaw. A member of the armed forces who leaves national military service with the intention of reneging on military obligations either permanently or for the duration of a military operation; a member of the armed forces who illegally abandons a military force, often by seeking refuge in a foreign territory or by joining enemy forces. [Cases: Armed Services (;..-:: 38; Military Justice C=>661.] desertion, n. (l6c) The willful and unjustified abandon­ ment of a person's duties or obligations, esp. to military

service or to a spouse or family.• In family law, the five elements of spousal desertion are (1) a cessation of cohabitation, (2) the lapse of a statutory period, (3) an intention to abandon, (4) a lack of consent from the abandoned spouse, and (5) a lack of spousal misconduct that might justify the abandonment. Also termed gross neglect of duty. Cf. ABANDONMENT. [Cases: Armed Military Justice Services C=> 38; Divorce 661.]- desert, vb. constructive desertion. (1894) One spouse's misconduct that forces the other spouse to leave the marital abode. • The actions of the offending spouse must be serious enough that the spouse who is forced from the home finds the continuation of the marriage to be unen­ durable or dangerous to his or her safety and well­ being, and finds it necessary to seek safety outside the marital domicile. Also termed constructive aban­ 37(22).] donment. [Cases: Divorce criminal desertion. (l8c) One spouse's willful failure without just cause to provide for the care, protection, or support of the other spouse who is in ill health or needy circumstances. [Cases: Husband and Wife (;:::J 302,304.] obstinate desertion. Desertion by a spouse who persis­ tently refuses to return to the marital home, so that the other spouse has grounds for divorce.• Before the advent of no-fault divorce, this term was commonly used in divorce statutes. The term was often part of the longer phrase willful, continued, and obstinate desertion. lCases: Divorce C=37(15).] willful, continued, and obstinate desertion. See obsti­ nate desertion. deserts. See JUST DESERTS. design, n. (l6c) 1. A plan or scheme. 2. Purpose or inten­ tion combined with a plan. formed design. Criminal law. The deliberate and fixed intention to kill, though not necessarily a particular person. See PREMEDITATION. [Cases: Homicide 535.] 3. The pattern or configuration of elements in some­ thing, such as a work of art. 4. Patents. The drawing or the depiction of an original plan for a novel pattern, model, shape, or configuration that is chiefly decorative or ornamental. • If it meets other criteria, a design may also be protect able as a trademark. - design, vb. design around, vb. Patents. To make something that performs the same function or has the same physical properties as (a patented product or process) but in a way different enough from the original that it does not infringe the patent. Cf. DOCTRINE OF EQUIVALENTS. [Cases: Patents designate, n. See DESIGNEE. designated public forum. See PUBLIC FORUM. designating petition. A document used to designate a candidate for a political-party nomination at a primary election or for election to a party position. [Cases: Elec­ tions (;:::J 126(1).]

designatio personae (dez-dg-nay-shee-oh pdr-soh­ I despotism (des-pd-tiz-am). (ISc) 1. A government by a nee). [Law Latin] Designation of the person by class or ruler with absolute, unchecked power. 2. Total power or controlling influence. category rather than by name, as "the children of A." • This phrase was used to specifically identify a person de statu defunctorum (dee stay-t[y]oo dee-fdngk­ in a contract or deed, often as a word oflimitation (e.g., tor-am). [Law Latin) Scots law. Concerning the status "to my eldest son"). Cf. DESCRIPTIO PERSONAE. of the decedent. • Ihe phrase was often used to refer to questions about the decedent's legitimacy. design claim. See PATENT CLAIM. de statuto mercatorio (dee std-tyoo-toh mdr-b-tor­ design defect. See DEFECT. ee-oh), n. [Law Latin "of statute merchant"] Rist. A writ design-defect exclusion. See EXCLUSION (3). ordering the imprisonment of someone who forfeits a statute-merchant bond until the debt has been paid. See designedly, adv. (17c) Willfully; intentionally. STATUTE MERCHANT. designee. A person who has been designated to perform de statuto stapulae (dee std-tyoo-toh stay-pya-Iee), n. some duty or carry out some specific role. - Also [Law Latin "of statute staple"] Rist. A writ to seize the termed designate (dez-ig-ndt), n. property ofand imprison a person who forfeits a staple­ designer defense. See DEFENSE (1). statute bond. See STATUTE STAPLE. designer drug. See DRUG. destination. 1. The predetermined end of a course, as design patent. See PATENT (3). ofa voyage or package. 2. The act ofappointment, esp. in a will; a designation. 3. Scots law. The nomination design review. A process by which a building permit of heirs esp. in a certain order - by law or under is withheld until the proposed building meets the a will. architectural standards established by land-use reg­ 'The series of heirs called to the succession of heritable or ulations. Also termed architectural review. [Cases: moveable property, either by the provision of the law or by Zoning and Planning ~431-446.] the will of the proprietor, is, generally speaking, termed a destination; but the term is usually applied, in a more design specification. See STATEMENT OF WORK. limited sense, to a nomination of successors in a certain order, regulated by the will of the proprietor." William Bell, design-specification contract. See build-to-print contract Bell's Dictionarv and Digest of the Law of Scotland 320 under CONTRACT. (George Watson ed., 7th ed. 1890). desist. To stop or leave off. See CEASE-AND-DESIST 4. Scots law. The line of successors so appointed. ORDER. destination bill oflading. See BILL OF LADING. desk audit. See AUDIT. destination contract. See CO~TRACT. de solemnitate (dee sa-lem-ni-tay-tee). [Law Latin] Scots destination du pere de famille (des-tee-nah-syawn doo law. As a solemnity.• lhe phrase appeared in reference pair dd fa-mee). [French" destination of the father of to certain deed requirements essential to the deed's the family"] 1. Civil law. The legal standing of the owner validity. Cf. EX SOLEMNITATE. of two estates that would be subject to a servitude if de son tort(dd sawn [or son] tor[t]). [Law French "by his they were not owned by the same person .• When the own wrongdoing"] Wrongful. two estates cease to be owned by the same owner, a servitude comes into existence if (1) the servitude is executor de son tort. See EXECUTOR. apparent from external signs, such as a roadway or a trustee de son tort. See TRUSTEE. pipeline, or (2) the common owner recorded a declara­ de son tort demesne (dd sawn tor[t] di-mayn). [Law tion establishing the destination. La. eiv. Code art. 741. French] Of a person's own wrong. _ 'Ihis is the law 2. Rist. A property use that the owner has intention­ French equivalent of the Latin phrase de injuria. See ally established on one part of the property in favor of another part. DE INJURIA. destinatione (des-ti-nay-shee-oh-nee). [Law Latin) Rist. desperate debt. See DEBT. By destination or appointment ofan heir. • The phrase despitus (di-spH92.] "As a dictum is by definition no part of the doctrine of the deciSion, and as the citing of it as a part of the doctrine is almost certain to bring upon a brief maker adverse comment, lawyers are accustomed to speak of a dictum rather slightingly, and sometimes they go so far as to intimate a belief that the pronouncing of a dictum is the doing of a wrong. Yet it must not be forgotten that dicta are frequently, and indeed usually, correct, and that to give an occasional illustration, or to say that the doctrine of the case would not apply to some case of an hypothetical nature, or to trace the history of a doctrine, even though it be conceded, as it must, that such passages are not essen­ tial to the deciding of the very is often extremely useful to the profession." William M. et aI., Brief Making and the Use of Law Books 307 (3d ed. 1914).

dictum proprium (dik-tam proh-pree-am). A personal or individual dictum that is given by the judge who delivers an opinion but that is not necessarily con­ curred in by the whole court and is not essential to the disposition of the case. Also termed (loosely) dictum propria. gratis dictum (gray-tis dik-tam). 1. A voluntary state­ ment; an assertion that a person makes without being obligated to do so. 2. A court's stating of a legal prin­ ciple more broadly than is necessary to decide the case. 3. A court's discussion of points or questions not raised by the record or its suggestion of rules not applicable in the case at bar. judicial dictum. An opinion by a court on a question that is directly involved, briefed, and argued by counsel, and even passed on by the court, but that is not essential to the decision. Cf. OBITER DICTUM. obiter dictum. See OBITER DICTUM. simplex dictum (sim-pleks dik-tam). An unproved or dogmatic statement. See IPSE DIXIT. dictum de Kenilworth (dik-tam dee ken-al-w;)rth), n. [Law Latin "edict of Kenilworth"] Rist. A declaration of an agreement between Edward I and the barons who had opposed him under the leadership of Simon de Montfort .• The agreement, which concerned rent on the lands forfeited in the rebellion, was so called because it was made at Kenilworth castle in Warwick­ shire in A.D. 1266. It was published in the Statutes of the Realm and 52 Hen. 3. dictum page. See pinpoint citation under CITATION (3). dictum propria. See dictum proprium under DICTUM.

diebus feriatis

diebus feriatis (dl-a-bas feer-ee-ay-tis). [Latin] Hist. On holidays. diei dictio (dI-ee-I dik-shee-oh). [Latin "appointing a day"] Roman law. 1. A magistrate's notice summon­ ing the accused to appear on a fixed day for trial. 2. The service ofa summons. Also written did dictitio, diem dicere. diem clausit extremum (dl-am klaw-zit ek-stree­ mam), n. [Law Latin "he closed his last day"] Hist. 1. A chancery writ, founded on the statute of Madbury, ordering the county escheator, after the death of a chief tenant of the Crown, to summon a jury to deter­ mine the amount and value ofland owned by the chief tenant, to determine the next heir, and to reclaim the property for the Crown. - It was a type of inquisition post mortem. "Diem clausit extremum is a writ that lies where the king's tenant that holds in chief, dies; then this writ shall be directed to the excheator, to inquire of what estate he was seised, who is next heir, and his age. and of the certainty and value of the land, and of whom it is holden; and the inquisition shall be returned into the chancery, which is commonly called the office after the death of that person," Termes de fa Ley 169 (lst Am. ed. 1812).

2. An Exchequer writ ordering a sheriff to summon a jury to investigate a Crown debtor's place of death and amount ofproperty owned, and to levy the property of the deceased's heirs and executors, - It was repealed by the Crown Proceedings Act of 1947. "And there is another writ of diem clausit extremum awarded out of the exchequer, after the death of an accomptant or debtor of his majesty, to levy the debt of his heir, executor, administrator's lands or goods." Termes de fa Ley 169 (1 st Am. ed, 1812).

dies (dI-eez), n. [Latin] A day; days. PI. dies. dies ad quem (dl-eez ad kwem), n. [Latin "the day to which"] Civil law. An ending date for a transaction; the ending date for computing time, such as the day on which interest no longer accrues. dies amoris (dI-eez ;3-mor-is), n. [Law Latin] Hist. A day of favor; esp., a day set by the court for the defendant to make an appearance. - This was usu. the fourth day of the term, which was the first day the court normally sat for business. In addition, the defendant usu. had three days of grace from the summons to appear, but an appearance on the fourth day quarto die post ("on the fourth day thereafter") was usu. sufficient. dies a quo (dI-eez ay kwoh), n. [Latin "the day from which"] Civil law, A transaction's commencement date; the date from which to compute time, such as a day when interest begins to accrue. La. Civ. Code art. 1784. dies cedit (dI-eez see-dit). [Latin "the time begins to run"] Roman & Scots law. The day on which an interest, esp. a legacy, vests; the day on which a condi­ tional obligation becomes due. - An interest usu., but not always, vested on the day of the testator's death. ­ Also termed dies cedens. Cf. dies venit.

520 "A legacy was due, or became a valid right, either at the death of the testator or the occurrence of a condition precedent. This vesting of the property or the accruing of an obligation determined the content and nature of the interests involved. What the legatary got was discovered by examining what the legacy actually carried with it on the day when it became vested. To express the fact that the legacy had become vested, the technical expression dies cedit was used." Max Radin. Handbook of Roman Law 434-35 (1927),

dies comitiales (dI-eez k;}-mish-ee-ay-leez). [Latin] Roman law. 1he 190 days in the year when an election could be held or the people could assemble as a legis­ lative body. - The praetors could not hold court while a legislative assembly was in session. dies communes in banco (dI-eez ka-myoo-neez in bang-koh), n. [Law Latin "common days before the bench"]!. Regular appearance dates in court. - Also termed common-return days. 2. An enactment printed under the Statutes of Henry III, regulating continu­ ances and writ return dates. dies datus (dI-eez day-tas), n. [Law Latin "a given day"] A continuance, esp. for a defendant before a decla­ ration is filed; a time of respite in a case. - A con­ tinuance granted after the filing of the declaration is called an imparlance. See IMPARLANCE. dies datus in banco (dI-eez day-tas in bang-kohl, n. [Law Latin] A day given before the bench, as distin­ gUished from a day at nisi prius. dies datus partibus (dI-eez day-tas pahr-ta-bas), n. [Law Latin "a day given to the parties"] A continu­ ance; an adjournment. dies dotus prece partium (dI-eez day-t;!s prce-see pahr­ shee-am), n. [Law Latin "a day given at the prayer of the parties"] A day given at the parties' request. dies Dominicus (dI-eez da-min-i-kas), n. [Latin] The Lord's day; Sunday. dies excrescens (dI-eez ek-skree-sanz), n. [Law Latin "the increasing day"] The additional day in a leap year. dies fasti (dI-eez fas-tI). [Latin] Roman law. A day when justice could be administered; a day when the praetor could officially pronounce the three words "do," "dico," and "addico." - Also called triverbial days. Cf. NEFASTUS. dies feriati (dI-eez fer-ee-ay-tI), n. [Latin] Roman & civil law. A holiday; holidays. dies gratiae (dI-eez gray-shee-ee), n. [fr. Law French jour de grace] Hist. A day of grace, usu. granted to the plaintiff. dies in banco. See DAYS IN BANK. dies intercisi (dI-eez in-t;3r-SI-zI). [Latin "divided days"] Roman law. A day when the courts were open for only part of the day. dies juridicus (dI-eez juu-rid-i-kas), n. [Latin] A day when justice can be administered. - This term was derived from the civil-law term dies Jasti. See dies Jasti.

dies legitimus (dl-eez l-jit-i-ms). [Latin) Roman law. A lawful day; a law day. dies marchiae (dI-eez mahr-kee-ee), n. [Law Latin "a day ofthe march"] Hist. In the reign of Richard II, the annual day set aside for the wardens of the English and Scottish borders to hold peace talks and resolve differences. dies nefasti (dI-eez nee-fas-tl), n. 1. NEFASTUS (2). 2. See dies non juridicus. dies non (dJ-eez non). See dies non juridicus. dies non juridicus (dI-eez non juu-rid-i-ks), n. [Law Latin "a day not juridical") A day exempt from court proceedings, such as a holiday or a Sunday. Often shortened to dies non. dies pads (dI-eez pay-sis), n. [Law Latin "day ofpeace") Hist. A day of peace. _ The days were originally divided into two categories: dies pacis ecclesiae ("a day of the peace of the church") and dies pads regis ("a day ofthe Crown's peace"). dies religiosi (dI-eez ri-lij-ee-oh-sI). [Latin] Roman law. Religious days on which it was unlawful to transact legal or political business. dies solaris (dl-eez sd-Iair-is), 11. [Law Latin "a solar day"] See solar day under DAY. dies solis (dl-eez soh-lis). [Latin "day of the sun"] Roman law. Sunday. dies utiles (dl-eez yoo-t-leez). [Latin "available days"] Roman law. A day when something can be legally done, such as an application to the praetor to claim an inheritance. dies venit (dl-eez vee-nit). [Latin "the day has corne"] Romal1 & Scots law. The date when an interest is both vested and actionable. _ It is usu. the day when the heir accepts the inheritance and a legatee can claim payment of a legacy. Also termed dies veniel1s. Cf. dies cedit. "But the legacy, though vested, is not yet so completely the property of the legatary that he may bring an action for it. To the fact that such a right of action accrues, the term venit was used. In general, it may be said that dies veniens occurred when, and not until, the heres has actually entered upon the inheritance. But, of course, if the legacy was conditional, the heres may enter before the condition happens. In that case, dies veniens will occur simultaneously with dies cedens; i.e., the legacy will vest and the bequest become actionable at the same moment." Max Radin, Handbook of Roman Law 435 (1927).

dies votorum (dl-eez voh-tor-am), n. [Latin "a day of vows"] A wedding day. esp. of food. 2. (cap.) A nation's parlia­ diet. 1. A mentary assembly, as in Israel, Japan, or some eastern European nations. 3. A governing body's meeting day for legislative, political, or religious purposes; speci£., a national assembly ofvarious European countries, such as the diet ofthe German empire, which was summoned by the emperor regularly to perform various functions, including levying taxes, enacting laws, and declaring war. 4. Scots law. A day to perform a duty, such as a

court sitting day, an appearance day, and a criminal pleading or trial day. - Also spelled dyet. "In procedure on indictment there are two diets, the pleading diet, when the accused is called to plead, and the trial diet when, if he has pled not gUilty, he is tried." David M. Walker, The Oxford Companion to Law 357 (1980).

dieta (dI-ee-tJ), 11. [fr. Latin dies "day"] Hist. 1. A day's journey. 2. A day's work. 3. A day's expenses. dietary law. Any of the body of laws observed by members of various faiths regulating what foods may be eaten, how the foods must be prepared and served, and what combinations and contacts (e.g., between meat and milk) are prohibited. di. etfl. (dI et fl). abbr. DILECTO ET FIDEL!. Dieu et mon droit (dyuu ay mawn drwah). [French "God and my right"] The motto ofthe royal arms of England. - It was first used by Richard I and, with the exception of Elizabeth 1, was continually used from Edward III to William III, who used the motto je maintiendrey. Queen Anne used Elizabeth 1'8 motto, semper eadem, but Dieu et mon droit has been used since her death. Dieu son acte (dyuu sawn akt), n. [Law Latin "an act of God"] Hist. An act of God, beyond human controL diffacere (di-fay-sJ-ree), vb. [fro Old French deffacerl Also termed disfacere; Hist. To deface; to mutilate. defacere. different-department rule. A doctrine holding that people who work for the same employer are not fellow servants if they do not do the same work or do not work in the same department. - This rule, which creates an exception to the fellow-servant doctrine, has been rejected by many jurisdictions. See FELLOW-SERVANT DOCTRINE;feliow servant under SERVANT. [Cases: Labor and Employment (;:::>2921.] differential pricing. (1946) The setting of the price of a product or service differently for different customers. See PRICE DISCRIMINATION. difforciare (di-for-shee-air-ee), vb. [Law Latin "to deny"] Hist. To keep (something) from someone; to deny (something) to someone. diffused surface water. See WATER. DIF system. See DISCRIMINANT FUNCTION. digama (dig-J-m 34, 67.3.] digital sampling. See SAMPLING. digital signature. See SIGNATURE. digital watermarking. See STEGANOGRAPHY. dignitary, adj. Ofor relating to one's interest in personal dignity, as contrasted with one's interest in freedom from physical injury and property damage.• Tort actions that compensate a plaintiff for a dignitary insult rather than physical injury or property damage include false-light privacy and negligent infliction of emotional distress. dignitary, n. 1. A person who holds a high rank or honor. 2. Eccles. law. A person who, by virtue of holding a

522

superior office stands above ordinary priests and canons. dignitary tort. See TORT. dignity, n. 1. The state of being noble; the state of being dignified. 2. An elevated title or position. 3. A person holding an elevated title; a dignitary. 4. A right to hold a title of nobility, which may be hereditary or for life. "Dignities may be hereditary, such as peerages ... or for life, such as life peerages and knighthoods. The dignities of peerages and baronetcies are created by writ or letters patent, that of knighthood by dubbing as knight. A dignity of inheritance may also exist by prescription. Dignities of inheritance are incorporeal hereditaments having been originally annexed to the possession of certain lands or created by a grant of those lands and are generally limited to the grantee and his heirs Of his heirs of the body. If heirs are not mentioned, the grantee holds for life only. The heirs are determined by the rules which governed the descent of land prior to 1926." David M. Walker, The Oxford Companion to Law 358 (1980).

dijudication (dI-joo-d3; International Law C:::::> 10-10.2.] diplomatic representation. See REPRESENTATION (5). diplomatics. The science of deciphering and authenti­ cating ancient writings .• The principles were largely developed by the Benedictine Dom Mabillon in his 1681 work entitled De re diplomatica. - Also termed diplomatic (n.). "Diplomatics, the science derived from the study of ancient diplomas, so called from being written on two leaves, or on double tablets. The Romans used the term more spe­ cially for the letters of license to use the publiC convey­ ances provided at the different stations, and generally for public grants. Subsequently it attained a more extended signification, and in more modern times has been used as a general term for anCient imperial and ecclesiastical acts and grants, public treaties, deeds of conveyance, letters, wills, and similar instruments, drawn up in forms and marked with peculiarities varying with their dates and countries. With the revival of literature, the importance of such documents in verifying facts and establishing public and private rights led to their being brought together from the historical works and the monastic registers in which they had been copied, or, in rarer instances, from public and ecclesiastical archives where the originals were still preserved, Then arose questions of authenticity, and doubts of the so·called originals; disputants defended or condemned them; and, in order to establish principles for distinguishing the genuine from the forged, treatises were written on the whole subject of these diplomas." 7 Encyclo­ paedia Britannica 220 (9th ed. 1907).

Diplomatic Security Service. See BUREAU

OF DIPLO­

MATIC SECURITY.

diptych (dip-tik), n. Latin diptycha fro Greek diptycha "two-leaved"] 1. Roman law. Two tablets usu. made of wood or metal and tied with string through holes at the edges so that they could fold over (like a book with

two leaves) .• Diptychs were often used to send letters, and the text was sometimes written using a stylus, once on the inside waxed leaves and again on the outside, so that it could be read without opening the tablets. 2. Hist. Eccles. law. Tablets used by the church, esp. to register names of those making supplication, and to record births, marriages, and deaths. 3. Hist. Eccles. law. The registry of those names. "The recitation of the name of any prelate or civil ruler in the diptychs was a recognition of his orthodoxy; its omission, the reverse. The mention of a person after death recognized him as having died in the communion of the church, and the introduction of his name into the list of saints or martyrs constituted canonization. In liturgics the diptychs are distinguished as rhe diptychs of the living and the diprychs of the dead, the latter induding also the com­ memoration of the saints .... In the Western Church the use of the diptychs died out between the ninth and the twelfth century; in the Eastern Church it still continues." 2 The Century Dictionary and Cyclopedia (1895). "Diptychs were used in the time of the Roman empire for sending letters .... The consula and quaestors used, on assuming office, to send diptychs containing their names and portraits to their friends .... The early Christians used tablets thus made in the celebration of divine worship __ . , They were placed on ... the pulpits, or reading desks, which may still be seen in ancient basilicas at the west end of the choir or presbytery; and from them were read to the congregation of the faithful the names of the celebrating priests, of those who occupied the superior positions in the Christian hierarchy, of the saints, martyrs, and confessors, and, in process of time, also of those who had died in the faith .... The inscription on the diptychs of deaths and baptisms, naturally led to the insertion of dates, and the diptychs seem thus to have grown into calendars, and to have been the germ from which necrologies, lists of saints, and almanacs have been developed," 7 Encyclopaedia Bri­ tannica 22324 (9th ed. 1907),

dirationare (di-ray-shee-a-nair-ee), vb. [fro Latin dis "thoroughly" + ratiocinari "to reason"] Hist. 1. To prove; to establish one's right. 2. To disprove; to refute (an allegation). direct (di-rekt), adj. 1. (Of a thing) straight; undeviating . 2. (Of a thing or a person) straightfor­ ward . 3. Free from extraneous influence; immediate . 4. Of or relating to passing in a straight line ofdescent, as distinguished from a collateral line . 5. (Of a political action) effected by the public immediately, not through repre­ sentatives . direct, n. See DIRECT EXAMINATION. direct, vb. (I4c) 1. To aim (something or someone). 2. To cause (something or someone) to move on a particular course. 3. To guide (something or someone); to govern. 4. To instruct (someone) with authority. 5. To address (something or someone). direct action. (1912) 1. A lawsuit by an insured against his or her own insurance company rather than against the tort feasor and the tortfeasor's insurer. 2. A lawsuit by a person claiming against an insured but suing the insurer directly instead of pursuing compensation indi­ rectly through the insured. [Cases: Insurance C=-3542.] 3. A lawsuit to enforce a shareholder's rights against a

direct-action statute

corporation. Cf. DERIVATIVE ACTION (1). [Cases: Cor­ porations C=>202.) direct-action statute. A statute that grants an injured party direct standing to sue an insurer instead of the insured tortfeasor.• Under Rhode Island's direct­ action statute, for example, an injured party may bring a direct action against an insurer when good­ faith efforts to serve process on the insured are unsuc­ cessful. These statutes exist in several states, including Alabama, Arkansas, Louisiana, Minnesota, New York, Pennsylvania, and Wisconsin. [Cases: Insurance 3542.]

direct adoptiou. See private adoption under ADOPTION.

direct affinity. See AFFINITY. direct aggression. See AGGRESSION. direct and proximate cause. See proximate cause under CAUSE

(1).

direct appeal. See APPEAL. direct attack. 1. An attack on a judgment made in the same proceeding as the one in which the judgment was entered; speci£., seeking to have the judgment vacated or reversed or modified by appropriate proceedings in either the trial court or an appellate court .• Examples of direct attacks are motions for new trial and appeals. Cf. COLLATERAL ATTACK. 2. The taking ofindependent proceedings in equity to prevent the enforcement of a judgment. direct beneficiary. See intended beneficiary under BEN­ EFICIARY.

direct cause. See proximate cause under CAUSE (1). direct charge-off accounting method. See ACCOUNT­ INGMETHOD.

direct confession. See CONFESSION. direct confusion. See CONFUSION. direct contempt. See CONTEMPT. direct conversion. See CONVERSION (2). direct cost. See COST (1). direct damages. See general damages under DAMAGES. direct deposit. See DEPOSIT (2). direct economic loss. See ECONOMIC LOSS. directed verdict. See VERDICT. direct estoppel. See COLLATERAL ESTOPPEL. direct evidence. See EVIDENCE. direct examination. (1859) The first questioning of a witness in a trial or other proceeding, conducted by the party who called the witness to testify. Often shortened to direct. - Also termed examination-in­ chief Cf. CROSS-EXAMINATION; REDIRECT EXAMINA­ TION. [Cases: Witnesses C=>224-245.J direct infringement. See INFRINGEMENT. direct injury. See INJURY. direct interest. See INTEREST (2).

526

direction (di-rek-sh;m). 1. The course taken in relation to the point toward or away from which something or someone is moving; a point to or from which a person or thing moves . 2. The course on which something is aimed . 3. An act of guidance . See JURY INSTRUCTION. 5. The address to the court con­ tained on a bill of equity . [Cases: Equityc=> 131.) 6. A board of directors; a board of managers . directive. See ADVANCE DIRECTIVE. Directive Harmouizing the Term of Copyright and Certaiu Related Rights. Copyright. A 1993 European Commission initiative setting the term of most copy­ right protection at the life ofthe author plus 70 years. ­ The directive extended coverage in most member coun­ tries to match that of Germany, whose term was the longest on the Continent. In 2006, it was repealed. Its provisions were incorporated into the Directive on the Term of Protection of Copyright and Certain Related Rights. - Also termed Duration Directive. Directive on Certain Aspects of Electronic Commerce in the Internal Market. Copyright. A 2000 European Commission initiative that harmonizes members' laws governing commercial use of the Internet, including electronic contracts, the liability of service providers, unsolicited commercial e-mail, and related issues. ­ Also termed Electronic Commerce Directive; E-Com­ merce Directive. Directive on Rental, Lending and Certain Neighboriug Rights. Copyright. A 1992 European Commission ini­ tiative setting rules for reimburSing copyright owners for home rental and public lending of videotapes and other copies of works, and establishing the rights of performers, producers, broadcasters, and cable dis­ tributors. Also termed Rental and Related Rights Directive; Rental Directive. Directive on the Coordination of Certain Rules Concerning Copyright and Neighbouriug Rights Applicable to Satellite Broadcasting and Cable Retransmission. Copyright. A 1993 European Com­ mission initiative requiring members, among other things, to (1) recognize the right of a copyright owner to decide whether the work may be relayed by either cable or satellite, and (2) define the "place" ofa satellite broadcast as the location where the Signal originates. ­ Also termed Cable and Satellite Directive. Directive ou the Legal Protection of Computer Programs. Copyright. A 1991 European Commis­ sion initiative requiring members to protect computer software by copyright rather than by patent or some sui generis set oflegal rights.• The purpose ofthe Directive was to harmonize copyright laws among the members of the European Commission. It standardized the degree of originality required for software to qualify for copyright protections. - Also termed Computer Programs Directive; Software Directive.

Directive on the Legal Protection of Databases. Copy­ right. A 1996 European Commission initiative that sets uniform copyright protection among members for databases of original content and requires a sui generis system of protection for databases that do not qualify for copyright protection because their content is not original. Also termed Database Directive. Directive on the Term of Protection of Copyright and Certain Related Rights. See DIRECTIVE HARMONIZ­ ING THE TERM OF COPYRIGHT AND CERTAIN RELATED RIGHTS.

directive to physicians. See LIVING WILL. direct line:See LINE. direct-line descent. See lineal descent under DESCENT. direct loss. See LOSS. directly, adv. 1. In a straightforward manner. 2. In a straight line or course. 3. Immediately. direct notice. See NOTICE. director (di-rek-tdr). (15c) 1. One who manages, guides, or orders; a chief administrator. 2. A person appointed or elected to sit on a board that manages the affairs of a corporation or other organization by electing and exer­ cising control over its officers. Also termed trustee. See BOARD OF DIRECTORS. Cf. OFFICER (1). affiliated director. See outside director. class director. 1. A director whose term on a corpo­ rate board is staggered with those of the other direc­ tors to make a hostile takeover more difficult. 2. A director elected or appointed to a corporate board to represent a special interest group, e.g., the preferred stockholders. dummy director. A board member who is a mere fig­ urehead and exercises no real control over the cor­ poration's business. - Also termed accommodation director; nominal director. inside director. A director who is also an employee, officer, or major shareholder of the corporation. Corporations (;::::J 310(1).] interlocking director. A director who simultaneously serves on the boards oftwo or more corporations that deal with each other or have allied interests. outside director. A nonemployee director with little or no direct interest in the corporation. - Also termed affiliated director. [Cases; Corporations (;::::>310(1).] provisional director. A director appointed by a court to serve on a close corporation's deadlocked board of directors. public director. A director elected from outside a cor­ poration's shareholders or an organization's member­ ship to represent the public interest. direct order of alienation. (1852) Real estate. The prin­ ciple that a grantee who assumes the debt on a mort­ gaged property is required to pay the mortgage debt if the original mortgagor defaults. [Cases; Mortgages

Director of Public Prosecutions. An officer (usu. a bar­ rister or solicitor of ten years' standing) who advises the police and prosecutes criminal cases in England, Wales, and Northern Ireland under the supervision of the Attorney General. • This title, or a similar one, is used in various countries, including Australia, Canada, China, Northern Ireland, the Republic ofIreland, and South Africa. In Scotland, the equivalent officer is the procurator fiscal. Director of the Mint. An officer appointed by the Pres­ ident, with the advice and consent of the Senate, to control and manage the U.S. Mint and its branches. [Cases: United States Director of the United States Patent and Trademark Office. The presidential appointee in charge ofthe U.S. Patent and Trademark Office.• Until a 2000 reorga­ nization, the PTO chief was the Commissioner of Patents and Trademarks. The Director is also the Under Secretary of Commerce for Intellectual Property. Formerly termed Commissioner ofPatents and Trade­ marks. [Cases; Patents directors' and officers' liability insurance. See INSUR­ ANCE.

directory, n. 1. A book containing an alphabetical list of names, addresses, and telephone numbers, esp. those of a city's or area's residents and businesses. [Cases; Telecommunications 2. Any organization's publication containing information on its members or business, such as a legal directory. 3. Eccles. law. A church's book of directions for conducting worship. • One of the primary directories is the Directory for the Public Worship of God, prepared by the Assembly of Divines in England in 1644 to replace the Book of Common Prayer, which had been abolished by Par­ liament (and was later reinstated). The Directory was ratified by Parliament in 1645 and adopted by the Scottish Parliament and General Assembly of the Church of Scotland that same year. A directory in the Roman Catholic Church contains instructions for saying the mass and offices each day of the year. 4. A small governing body; specif., the five-member executive body that governed France from 1795-1799 during the French Revolution until it was overthrown by Napoleon and succeeded by the consulate. directory call. (1812) Property. In a land description, a general description of the areas in which landmarks or other calls are found. See CALL (5); LOCATIVE CALLS. directory provision. A statutory or contractual sentence or paragraph in which a directory requirement appears. [Cases: Statutes directory requirement. (1865) A statutory or contrac­ tual instruction to act in a way that is advisable, but not absolutely essential in contrast to a mandatory requirement. • A directory requirement is frequently introduced by the word should or, less frequently, shall (which is more typically a mandatory word). [Cases: Statutes (;..-.. 227.) directory statute. See STATUTE.

528

directory trust

directory trust. See TRUST. direct-participation program. An investment vehicle that is financed through the sale of securities not traded on an exchange or quoted on NASDAQ and that provides flow-through tax consequences to the investors. direct payment. See PAYMENT. direct placement. 1. The sale by a company, such as an industrial or utility company, of an entire issue of securities directly to a lender (such as an insurance company or group of investors), instead of through an underwriter. _ This type of offering is exempt from SEC filing requirements. 2. PRIVATE PLACEMENT (1). direct-placement adoption. See private adoption under ADOPTION.

direct possession. See immediate possession under posSESSION.

direct question. See QUESTION (1). direct-reduction mortgage. See MORTGAGE. direct selling. 1. Selling to a customer without going through a dealer. 2. Selling to a retailer without going through a wholesaler. direct skip. (1988) Tax. A generation-skipping transfer of assets, either directly or through a trust. - A direct skip may be subject to a generation-skipping transfer tax either a gift tax or an estate tax. IRC (26 USCA) §§ 2601-2602. See GENERATION-SKIPPING TRANSFER; generation-skipping transfer tax under TAX; SKIP PERSON. [Cases: Internal Revenue (:::::>4224.] direct tax. See TAX. Direct Tax Clauses. The provisions in the U.S. Consti­ tution requiring direct taxes to be apportioned among the states according to their respective numbers (U.S. Const. art. I, § 2, d. 3) and prohibiting capitation or other direct taxes except in proportion to the census (U.S. Const. art. 1, § 9, d. 4). - An additional provi­ sion of Article I, § 2 concerning computation of taxes is affected by § 2 of the Fourteenth Amendment, and both clauses are affected by the Sixteenth Amendment concerning income taxes. [Cases: Internal Revenue (:::::> 3059.J dired trust. See express trust under TRUST. diribitores (di-rib-Cl-tor-eez), n. pI. [Latin "sorters of votes"] Roman law. Officers who distributed voting ballots to the citizens in a comitia. See COMITIA. diriment impediment. See IMPEDIMENT. diritto connessi. [Italian] NEIGHBORING RIGHT. diritto d' autore. [Italian] AUTHOR'S RIGHT. dirt-for-debt trausfer. A transaction in which a bankrupt debtor satisfies all or part of a secured debt by transferring the collateral to the creditor. [Cases: Bankruptcy (:::::> 3564.] DISA. abbr. DEFENSE INFORMATION SYSTEMS AGENCY. disability. (16c) 1. The inability to perform some function; esp., the inability of one person to alter a given relation

with another person. 2. An objectively measurable con­ dition of impairment, physical or mental 802.] "The Supreme Court has cautioned that [the Americans with Disabilities Act] requires that disabilities be evaluated 'with respect to an individual' and must be determined based on whether an impairment substantially limits the 'major life activities of such individual.' The Court conceded that 'some impairments may invariably cause a substantial limitation of a major life activity,' but '[t]he determination of whether an individual has a disability is not necessarily based on the name or diagnosis of the impairment the person has, but rather on the effect of that impairment on the life of the individual.' As a result, courts are reluctant to characterize any particular impairment as a per se disability under ADA. And the fact that an impair­ ment is considered to be a disability under a different set of criteria for some purpose other than the ADA has no bearing on the determination of whether an individual is disabled within the meaning of ADA." Harold S. LewisJr. & Elizabeth J. Norman, Employment Discrimination Law and Practice 485-86 (2001).

developmental disability. (1973) An impairment of general intellectual functioning or adaptive behavior. partial disability. A worker's inability to perform all the duties that he or she could do before an accident or illness, even though the worker can still engage in some gainful activity on the job. [Cases: Workers' Compensation (:::::>856-862.] permanent disability. (1804) A disability that will indefinitely prevent a worker from performing some or all of the duties that he or she could do before an accident or illness. [Cases: Workers' Compensation C=)863,864.] physical disability. (1826) An incapacity caused by a physical defect or infirmity, or by bodily imperfection or mental weakness. temporary disability. (18c) A disability that exists until an injured worker is as far restored as the nature of the injury will permit. [Cases: Workers' Compensa­ tion (:::::>863, 864.] temporary total disability. Total disability that is not permanent. total disability. (18c) A worker's inability to perform employment-related duties because of a physical or mental impairment. [Cases: Workers' Compensation (:::::>846-855.] 3. Incapacity in the eyes of the law <most of a minor's disabilities are removed when he or she turns 18>. Also termed incapacity. canonical disability. A canonical impediment (usu. impotence). See canonical impediment under IMPEDI­ MENT.

civil disability. (18c) The condition of a person who has had a legal right or privilege revoked as a result of a criminal conviction, as when a person's driver's license is revoked after a DWI conviction. Cf. civil death (2) under DEATH.

529

disbarment

disability benefits. See DISABILITY COMPENSATION. disability clause. Insurance. A life-insurance-policy pro­ vision providing for a waiver of premiums during the policyholder's period of disability, and sometimes pro­ viding for monthly payments equal to a percentage of the policy's face value. [Cases: Insurance C=>2035.] disability compensation. Payments from public or private funds to a disabled person who cannot work, such as social-security or workers'-compensation benefits. - Also termed disability benefits. [Cases: Social Security and Public Welfare C=> 140.5-140.85; Workers' Compensation ~'-:)836-902.] disability insurance. See INSURANCE. disability retirement plan. See EMPLOYEE BENEFIT PLAN.

disable, vb. 1. To deprive (someone or something) of the ability to function; to weaken the capability of (someone or something). 2. To impair; to diminish. 3. To legally disqualify (someone); to render (someone) legally incapable. disabled person. See PERSON (1). disablement, rl. (15c) 1. The act of incapacitating or immobilizing. 2. The imposition of a legal disability. disabling restraints. (1963) Limits on the alienation of property. - These restraints are sometimes void as being against public policy. [Cases: Perpetuities 6(1).] disabling statute. See STATUTE. disadvocare (dis-ad-v;:;-kair-ee), vb. [Law LatinJ To deny; to disavow. disaffirm (dis-272.] 2. A declaration that a voidable contract Also (such as one entered into by a minor) is void. termed disaffirmation. [Cases: Infants "Disaffirmance is an operative act whereby the legal rela· tions created by an infant's contract are terminated and discharged and other !egal relations substituted. Inasmuch as the infant's executory promise does not operate to create any legal duty in him (the infant being at all times at liberty or privileged not to perform). his disaffirmance is not the discharge of such a duty. A return promise by an adult, however, creates a legal duty and the infant has a correlative right in personam. A disaffirmance terminates these." William R. Anson, Principles of the Law of Contract 181 (Arthur L. Corbin ed., 3d Am. ed. 1919).

disafforest (dis-82(5).] disaster loss. See LOSS. Disaster Relief Act. A federal statute that provides a means by which the federal government can help state and local governments to relieve suffering and damage resulting from disasters such as hurricanes, tornadoes, floods, earthquakes, volcanic eruptions, landslides, mudslides, drought, fire, and exploSions. - A 1974 amendment established a process for the President to declare affected communities disaster areas. [Cases: United States C=>82(5).] disavow (dis-;J-vow), vb. To disown; to disclaim knowl­ edge of; to repudiate . disavowal, n. disbarment, rl. (1862) The action of expelling a lawyer from the bar or from the practice of law, usu. because of some disciplinary violation. - One who has passed the bar, been called to the bar, or been admitted to the bar is privileged to stand inside the wooden barrier that separates the gallery from the actual courtroom, par­ ticularly the judge's bench, and conduct business with the court. So this term literally describes the loss ofthe privilege. Although disbarment is typically a perma­ nent removal from the practice oflaw, in some jurisdic­ tions a disbarred attorney may (after a certain period) petition for readmission. In England and Wales, only a barrister is disbarred; a solicitor is struck off the roll, so the expulsion of a solicitor is termed striking off the roll. See STRUCK OFF. [Cases: Attorney and Client C=> 59.14.] - disbar, vb.

disbocatio (dis-bd-kay-shee-oh), n. [fro Law Latin dis­ + boscus "wood"] Rist. The conversion of forest to pasture. disbursement (dis-bJrs-m,mt), n. The act of paying out money, commonly from a fund or in settlement of a debt or account payable . ­ disburse, vb. DISC. abbr. DOMESTIC INTERNATIONAL SALES CORPO­ RATION.

discarcare (dis-kahr-kair-ee), vb. [fro Latin dis- + carcare "to charge"] Rist. To unload (cargo), uSU. from a ship. Also ten:ned discargare. disceptatio causae (di-sep-tay-shee-oh kaw-zee). [Latin "debate about a case"] Roman law. The argument by the advocates ofboth sides of a dispute. discharge (dis-chahrj), n. (I5c) 1. Any method by which a legal duty is extinguished; esp., the payment of a debt or satisfaction of some other obligation. 2. Bank­ ruptcy. The release of a debtor from monetary obliga­ tions upon adjudication ofbankruptcy; DISCHARGE IN BANKRUPTCY. Cf. RELEASE (1). [Cases: BankruptcyC=> 3251.] 3. The dismissal of a case. 4. The canceling or vacating of a court order. 5. The release of a prisoner from confinement. unconditional discharge. (I8c) 1. A release from an obligation without any conditions attached. 2. A release from confinement without any parole require­ ments to fulfill. 6. The relieving ofa witness, juror. or jury from further responsibilities in a case. 7. The firing of an employee. [Cases: Labor and Employment C=>825.) constructive discharge. (1830) A termination of employment brought about by making the employee's working conditions so intolerable that the employee feels compelled to leave. [Cases: Civil Rights C=> 1123; [Cases: Labor and Employment C=>825.) "Most constructive discharges fall into one of two basic fact patterns. First, the employer can cause a constructive discharge by breaching the employee's contract of employ· ment in some manner short of termination. Second, the employer can make working conditions so intolerable that the employee feels compelled to qUit." Mark A. Rothstein et aI., Employment Law § 9.7, at 539 (1994).

retaliatory discharge. (1967) A discharge that is made in retaliation for the employee's conduct (such as reporting unlawful activity by the employer to the government) and that clearly violates public policy. • Federal and state statutes may entitle an employee who is dismissed by retaliatory discharge to recover damages. [Cases: Civil Rights C=> 1247,1249(2); Labor and Employment C=>771.) wrongful discharge. (1825) A discharge for reasons that are illegal or that violate public policy. [Cases: Civil Rights C=> 1122; Labor and Employment 8. The dismissal of a member of the armed services from military service . [Cases: Armed Services 22.]

administrative discharge. A military-service discharge given by administrative means and not by court-mar­ tial. bad-conduct discharge. A punitive discharge that a court-martial can give a member of the military, usu. as punishment for repeated minor offenses. - Abbr. BCD. dishonorable discharge. The most severe punitive dis­ charge that a court-martial can give to a member of the military.• A dishonorable discharge may result from conviction for an offense recognized in civilian law as a felony or of a military offense requiring severe punishment. Only a general court-martial can give a dishonorable discharge. general discharge. One of the administrative dis­ charges given to a member of the military who does not qualify for an honorable discharge. honorable discharge. A formal final judgment passed by the government on a soldier's entire military record, and an authoritative declaration that he or she has left the service in a status of honor.• Full veterans' benefits are given only to a person honor­ ably discharged. undesirable discharge. One of the administrative dis­ charges given to a member of the military who does not qualify for an honorable discharge. 9. Parliamentary law. A motion by which a delibera­ tive assembly, having referred a matter to a commit­ tee, takes the matter's further consideration out of the committee and back into its own hands. Also termed discharge a committee; withdrawal. - discharge (dis­ chahrj), vb. dischargeability proceeding. Bankruptcy. A hearing to determine whether a debt is dischargeable or is subject to an exception to discharge. 11 USCA § 523. [Cases: Bankruptcy C=> 3395.) dischargeable claim. Bankruptcy. A claim that can be discharged in bankruptcy. [Cases: Bankruptcy 3341-3378.] discharged contract. See void contract (2) under CONTRACT.

discharge hearing. Bankruptcy. A hearing at which the court informs the debtor either that a discharge has been granted or the reasons why a discharge has not been granted. See REAFFIRMATION HEARING. [Cases: Bankruptcy (;--::>3318.1.] discharge in bankruptcy. (1820) 1. The release ofa debtor from personal liability for pre bankruptcy debts; specif., discharge under the United States Bankruptcy Code. [Cases: BankruptcyC=>3251.]2. A bankruptcy court's decree releasing a debtor from that liability. discharging bond. See BOND (2). disciplinary proceeding. (1900) An action brought to reprimand, suspend, or expel a licensed professional or other person from a profession or other group because of unprofessional, unethical, improper, or illegal conduct. • A disciplinary proceeding against a lawyer

may result in the lawyer's being suspended or disbarred from practice. [Cases: Licenses C=>38.] disciplinary rule. (often cap.) (1890) A mandatory regulation stating the minimum level of profeSSional conduct that a professional must sustain to avoid being subject to diSciplinary action. - For lawyers, the dis­ Ciplinary rules are found chietly in the Model Code of Professional Responsibility. - Abbr. DR. Cf. ETHICAL CONSIDERATION. [Cases: Licenses discipline, n. 1. Punishment intended to correct or instruct; esp., a sanction or penalty imposed after an official finding ofmisconduct. [Cases: Licenses C=>38.] 2. The punishment or penalties (often termed "sanc­ tions") imposed by a disciplining agency on an attorney who has breached a rule of professional ethics. _ Three types of discipline are common: disbarment, suspen­ sion, and reprimand (public or private). 3. Control gained by enforcing compliance or order. 4. Military law. A state of mind inducing instant obedience to a lawful order, no matter how unpleasant or dangerous such compliance might be. - discipline, vb. - disci­ plinary, adj. disclaimer, n. (15c) 1. A renunciation of one's legal right or claim; esp., a renunciation of a patent claim, usu. to save the remainder of the application from being rejected. 2. A repudiation of another's legal right or claim. 3. A writing that contains such a renunciation or repudiation. 4. RENUNCIATION (2). - disclaim, vb. disclaimer ofwarranty. (1881) An oral or written state­ ment intended to limit a seller's liability for defects in the goods sold. _ In some circumstances, printed words must be specific and conspicuous to be effec­ tive. [Cases: Sales C=>267.] patent disclaimer. See statutory disclaimer. qualified disclaimer. (1889) 1. A disclaimer with a restriction or condition attached. - In this sense it is qualified because it carries the restriction or con­ dition. 2. A person's refusal to accept an interest in property so that he or she can avoid haVing to pay estate or gift taxes. - To be effective under federal tax law, the refusal must be in writing and must be executed no later than nine months from the time when the interest was created. In this sense, it is quali­ fied in the sense of being within the lawful exemption. IRC (26 USCA) § 2518. [Cases: Internal Revenue (::::) 4177.20,4205.10; Taxation ~=:)3319.J statutory disclaimer. Patents. A patent applicant's amendment of a specification to relinquish one or more claims to the invention. 35 USCA § 253. ­ Before the statute was enacted, a Single invalid claim was grounds for denying a patent. Also termed patent disclaimer. See SPECIFICATION (3). [Cases: Patents (::: 149, 154.] terminal disclaimer. A patent applicant's statement shortening the term of the patent. - To revive an abandoned application for a design application or for a utility or plant application filed before June 8, 1995, the applicant must disclaim a period equal to the

duration of abandonment. A terminal disclaimer may also be required in an application for an obvious vari­ ation on an existing patent with a common inventor or owner: to avoid a double-patenting rejection the inventor agrees that both patents will expire on the same day. 37 CFR 1.321. [Cases: Patents C=> 131.] disclosed principaJ. See PRINCIPAL (1). disclosure, n. (16c) 1. The act or process of making known something that was previously unknown; a revelation of facts 350.J voluntary disclosure ofoffense. A person's uncoerced admission to an undiscovered crime. - Under the federal sentencing gUidelines, a lighter sentence may be allowed. See USSG 5K2.16. [Cases: Sentencing and Punishment C=>861.] 2. The mandatory divulging of information to a litiga­ tion opponent according to procedural rules. Also termed compulsory disclosure; automatic disclosure. See DISCOVERY (2). [Cases: Federal Civil Procedure ':8::::> 1261; Pretrial Procedure C=> 11.] disclose, vb. disclosural, ad). "Rule 26(a) [of the Federal Rules of Civil Procedure] reflects a shift away from the traditional method of obtaining dis­ covery through the service of written demands toward requiring automatic disclosure by the parties of informa­ tion that would invariably be requested. The goal of auto­ matic disclosure is the creation of a more efficient and expeditious discovery process .... Rule 26(a)(1) provides for the initial disclosure of specified information relating to witnesses, documents, and insurance agreements. Rule 26(a)(2) provides for the disclosure of information regarding experts who may be used at trial. Rule 26(a)(3) provides for specified pretrial disclosures regarding wit­ nesses, evidence, and objections." Jay E. Grenig &Jeffrey S. Kinsler, Handbook of Federal Civil Discovery and Disclosure § 1.15, at 65-66 (2d ed. 2002).

accelerated disclosure. See accelerated discovery under DISCOVERY.

initial disclosure. Civil procedure. In federal practice, the requirement that parties make available to each other the follOWing information without first receiv­ ing a discovery request: (1) the names, addresses, and telephone numbers ofpersons likely to have relevant, discoverable information, (2) a copy or description of all relevant documents, data compilations, and tangible items in the party's possession, custody, or control, (3) a damages computation, and (4) any relevant insurance agreements. Fed. R. Civ. P. 26(a) (l)(A) - (D). [Cases: Federal Civil Procedure (;:::> 1261, 1272.]

Disclosure Document Program

3. Patents. A document explaining how an invention works in sufficient detail for one skilled in the art to be able to understand and duplicate the invention; everything revealed about an invention in the patent application, including drawings, descriptions, specifi­ cations, references to prior art, and claims.• An inven­ tion disclosure statement is sometimes attested by a knowledgeable witness, who signs and dates the dis­ closure document to establish the inventor's identity and the date of the invention before the patent appli­ cation is prepared. An inventor can file a disclosure document with the U.S. Patent and Trademark Office before submitting a patent application, but the docu­ ment's date has no relationship to the later application's effective filing date. See ENABLEMENT REQUIREMENT. Cf. ENABLING SOURCE; DEFENSIVE DISCLOSURE. [Cases: Patents ~99.]4. Patents. PUBLICATION (1). Disdosure Document Program. Patents. A C.S. Patent and Trademark Office program allowing an inventor to file a preliminary description of an invention and establish its date of conception before applying for a patent. • The document can help establish a date of inventive effort for use in a later interference. Abbr. DDP. Cf. PROVISIONAL PATENT APPLICATION. lCases: Patents discommon (dis-kom-;m), vb. 1. To deprive ofthe right of common (e.g., the right to pasture). 2. To deprive (something, esp. land) of commonable character.• A person could discommon land by separating or enclos­ ing it. 3. To deprive (someone) of the privileges of a place, such as the right to use common land or to enjoy a church fellowship. disconformity. See NEW MATTER. discontinuance (dis-k;}n-tin-yoo-;mts), n. (14c) 1. The termination of a lawsuit by the plaintiff; a voluntary dismissal or nonsuit. See DISMISSAL; NONSUIT (1); judgment ofdiscontinuance under rUDGMENT. [Cases: 1691; Pretrial Procedure Federal Civil Procedure (;:::)501.] 2. 'Ihe termination ofan estate-tail by a tenant in tail who conveys a larger estate in the land than is legally allowed. [Cases: Estates in Property ~ 12.] "Such is ... the injury of discontinuance; which happens when he who hath an estate-tail, maketh a larger estate of the land than by law he is entitled to do: in which case the estate is good, so far as his power extends who made it. but no farther. As if tenant in tail makes a feoffment in fee·simple, or for the life of the feoffee, or in tail; all which are beyond his power to make, for that by the common law extends no farther than to make a lease for his own life: the entry of the feoffee is lawful during the life of the feoffer; but if he retains the possession after the death of the feoffor, it is an injury, which is termed a discontinuance; the ancient legal estate, which ought to have survived to the heir in tail, being gone, or at least suspended, and for a while discontinued." 3 William Blackstone, Commentaries on the Laws of England 171-72 (1768).

discontinuee, 11. A person whose acquisition of an entailed estate causes a discontinuance of the fee tail heirs' right to the estate. Cf. DISCONTINUOR. discontinuing easement. See discontinuous easement under EASEMENT.

532 discontinuor, n. A tenant in tail whose conveyance of the entailed estate causes a discontinuance. Cf. DIS­ CONTINUEE.

discontinuous easement. See EASEME~-n. discontinuous servitude. See discontinuous easement under EASEMENT. disconvenable (dis-k28.] "The term 'discovery abuse' has been used as if it were a single concept, but it includes several different things. Thus, it is useful to subdivide 'abuse' into 'misuse' and 'overuse: What is referred to as 'misuse' would include not only direct violation of the rules, as by failing to respond to a discovery request within the stated time limit, but also more subtle attempts to harass or obstruct an opponent, as by giving obviously inadequate answers or by requesting information that clearly is outside the scope of discovery. By 'overuse' is meant asking for more discovery than is necessary or appropriate to the particular case. 'Overuse,' in turn, can be subdivided into problems of 'depth' and of 'breadth,' with 'depth' referring to discovery that may be relevant but is simply excessive and 'breadth' referring to discovery requests that go into matters too far removed from the case." Charles Alan Wright, The Law of Federal Courts § 81, at 580 (5th ed. 1994).

2. The failure to respond adequately to proper discov­ ery requests. - Also termed abuse ofdiscovery. [Cases: Federal Civil Procedure Pretrial Procedure (P44.1.] discovery immunity. (1975) An exemption provided by statute, caselaw, or court rules to exclude certain docu­ ments and information from being disclosed during discovery. discovery policy. See claims-made policy under INSUR­ ANCE POLICY.

discovery rule. (1916) Civil procedure. The rule that a limitations period does not begin to run until the plain­ tiff discovers (or reasonably should have discovered) the injury giving rise to the claim .• The discovery rule usu. applies to injuries that are inherently difficult to detect, such as those resulting from medical malprac­ tice. See STATUTE OF LIMITATIONS. Cf. OCCURRENCE RULE. [Cases: Limitation of Actions (P,95, 100.]

534

discovery vein

discovery vein. See VEIN. discredit, vb. To destroy or impair the credibility of (a witness, a piece of evidence, or a theory); to lessen the degree of trust to be accorded to (a witness or document). [Cases: Witnesses (::::>330.] - discredit, n. discreet (di-skreet), adj. Exercising discretion; prudent; judicious; discerning. discrete (di-skreet), adj. Individual; separate; distinct. discretion (di-skresh-;m). (14c) 1. Wise conduct and management; cautious discernment; prudence. 2. Indi­ vidual judgment; the power of free decision-making. sole discretion. An individual's power to make deci­ sions without anyone else's advice or consent. 3. Criminal & tort law. The capacity to distinguish between right and wrong, sufficient to make a person responsible for his or her own actions. [Cases: Criminal Law (::::>46.]4. A public official's power or right to act in certain circumstances according to personal judgment and conscience, often in an official or representative capacity. - Also termed discretionary power. administrative discretion. A public official's or agency's power to exercise judgment in the discharge of its duties. [Cases: Administrative Law and Procedure (::::>324,754.] judicial discretion. (17c) The exercise ofjudgment by a judge or court based on what is fair under the circum­ stances and guided by the rules and principles oflaw; a court's power to act or not act when a litigant is not entitled to demand the act as a matter of right. - Also termed legal discretion. [Cases: Courts (::::>26.] prosecutorial discretion. (1966) A prosecutor's power to choose from the options available in a criminal case, such as filing charges, prosecuting, not prosecut­ ing, plea-bargaining, and recommending a sentence to the court. [Cases: Criminal Law (::::>29(3); District and Prosecuting Attorneys (::::>8.] discretion, abuse of. See ABUSE OF DISCRETION. discretionary (di-skresh- 19.] discretionary act. A deed involving an exercise of personal judgment and conscience. - Also termed discretionary function. See DISCRETION; ABUSE OF DISCRETION. discretionary bail. See BAIL (3). discretionary commitment. See COMMITMENT. discretionary damages. See DAMAGES.

discretionary duty. See DUTY (2). discretionary function. See DISCRETIONARY ACT. discretionary immunity. See IMMUNITY (1). discretionary order. See ORDER (8). discretionary power. 1. See POWER (3). 2. See DISCRE­ TION

(4).

discretionary review. See REVIEW. discretionary sentencing. See indeterminate sentencing under SENTENCING. discretionary-transfer statute. See TRANSFER STATUTE. discretionary trust. See TRUST. discretion statement. Hist. English law. In an action for divorce or judicial separation, a written request for the court to consider granting a judgment favorable to a spouse who has admittedly committed a matrimonial offense, esp. adultery. "In a suit for divorce or judicial separation, the defendant's own adultery is a discretionary bar. The petitioner asking the court to exercise its discretion to grant a decree not­ withstanding his own adultery must lodge in the Divorce Registry a statement, known as a 'discretion statement,' dated and signed by him or his solicitor, stating that the court will be asked to exercise its discretion on his behalf notwithstanding his own adultery, and setting forth par­ ticulars of his acts of adultery and of the facts which is it material for the court to know for the purpose of exercising its discretion." N. Simon Tessy, Is a Discretion Statement Really Necessary?, 21 Mod. L. Rev. 48, 48 (1958).

discriminant function (di-skrim-4443.] discriminatee (di-skrim- 127.] disentailment (dis-olll-tayl-mJnt), n. (1886) The act or process by which a tenant in tail bars the entail on an estate and converts it into a fee simple, thereby nulli­ fying the rights of any later claimant to the fee tail. Also termed disentailing assurance. See BARRING OF

disentitle

ENTAIL. [Cases: Deeds C-~, 127(2); Estates in Property 12.] - disentail, vb. disentitle (dis-;m-tlt-303.30(1); Federal Civil Procedure Pretrial Procedure (:;:::> 581-602.] dismissal without prejudice. (1831) A dismissal that does not bar the plaintiff from refiling the lawsuit within the applicable limitations period. See WITHOUT PREJUDICE. [Cases: Federal Civil Procedure G'":;:) 1713, 1837.1; Pretrial Procedure 690.] dismissal with prejudice. (1898) A dismissal, usu. after an adjudication on the merits, barring the plaintiff

dismissed with prejudice

from prosecuting any later lawsuit on the same claim. • If, after a dismissal with prejudice, the plaintiff files a later suit on the same claim, the defendant in the later suit can assert the defense of res judicata (claim preclusion). See RES JUDICATA; WITH PREJUDICE. [Cases: Federal Civil Procedure 1713, 1837.1; Pretrial Procedure 690.) involuntary dismissal. (1911) A court's dismissal of a lawsuit because the plaintiff failed to prosecute or failed to comply with a procedural rule or court order. Fed. R. Civ. P. 41(b). [Cases: Federal Civil Procedure C::> 1721-1842; Pretrial Procedure (:;:::>531-699.) voluntary dismissal. (1834) A plaintiff's dismissal of a lawsuit at the plaintiff's own request or by stipulation of all the parties. Fed. R. Civ. P. 41(a). [Cases: Federal Civil Procedure 1691-1715; Pretrial Procedure (:;:::>501-520.] 2. A release or discharge from employment. See DIS­ CHARGE (7). [Cases: Labor and Employment (:;:::>825.] dismissal for cause. (1877) A dismissal of a contract employee for a reason that the law or public policy has recognized as sufficient to warrant the employee's removal. [Cases: Labor and Employment (:;:::>762.) 3. Military law. A court-martial punishment for an officer, commissioned warrant officer, cadet, or mid­ shipman, consisting of separation from the armed services with dishonor. • A dismissal can be given only by a general court-martial and is considered the equivalent of a dishonorable discharge. [Cases: Military Justice (:;:::> 1322.1.] dismiss, vb. dismissal compensation. See SEVERANCE PAY. dismissal order. See ORDER (2). dismissed for want of equity. (Of a case) removed from the court's docket for substantive reasons, usu. because the plaintiff's allegations are found to be untrue or because the plaintiff's pleading does not state an adequate claim. See dismissal for want ofequity under DISMISSAL (1). [Cases: Pretrial Procedure Cr---::> 552,622.] dismissed for want of prosecution. (Of a case) removed from the court's docket because the plaintiff has failed to pursue the case diligently toward completion. See dismissal for want ofprosecution under DISMISSAL (1). [Cases: Federal Civil Procedure (:;:::> 1758; Pretrial Pro­ cedure (:;:::>581-602.] dismissed without prejudice. (Of a case) removed from the court's docket in such a way that the plaintiff may refile the same suit on the same claim. See dismissal without prejudice under DISMISSAL (1); WITHOUT PREj­ UDICE. [Cases: Federal Civil Procedure (:;:::>1713,1837.1; Pretrial Procedure (:;:::>517.1, 690.) dismissed with prejudice. (Of a case) removed from the court's docket in such a way that the plaintiff is fore­ closed from filing a suit again on the same claim or claims. See dismissal with prejudice under DISMISSAL (1); WITH PREJUDICE. [Cases: Federal Civil Procedure (:;:::> 1713, 1837.1; Pretrial Procedure (:;:::>517.1, 690.J

dismission dismission. Archaic. 1. An act of dismissing . 2. A removal, esp. from office or position . 3. A decision that a suit cannot be maintained . dismortgage. See REDEMPTION (4). Disneyland parent. See PARENT. disobedient child. See incorrigible child under CHILD. disorder. (1877) 1. A lack of proper arrangement . 2. An irregularity . 3. A public disturbance; a riot . 4. A disturbance in mental or physical health . disorderly conduct. See CONDUCT. disorderly house. (16c) 1. A dwelling where people carry on activities that are a nuisance to the neighborhood. [Cases: Disorderly House (;:::::c 1.] 2. A dwelling where people conduct criminal or immoral activities.• Examples are brothels and drug houses. - Also termed (more narrowly) bawdy house; house ofprostitution; house of ill fame; house of ill repute; lewd house; assig­ nation house; house ofassignation. "The keeping of one type of disorderly house - the bawdy house - is punished because it violates the social interest in maintaining proper standards of morality and decency.... As included here a house may be disorderly for other reasons. Any house in which disorderly persons are permitted to congregate, and to disturb the tranquillity of the neighborhood by fighting, quarreling, swearing or any other type of disorder, is a disorderly house; and the keeping thereof is a misdemeanor at common law." Rollin M. Perkins & Ronald N. Boyce, Criminal Law 487 (3d ed. 1982).

disorderly person. (18c) 1. A person guilty of disorderly conduct. [Cases: Disorderly Conduct (;:::::c 108-140.] 2. A person who breaches the peace, order, decency, or safety of the public, as defined by statute .• The offense of being a disorderly person is usu. a misdemeanor. "Ordinarily, a person who is gUilty of disorderly conduct is a 'disorderly person,' but where statutes define 'a dis· orderly person' and distinguish acts which may constitute the offense of disorderly conduct, the distinction is to be preserved and the different provisions relative to the dif­ ferent offenses particularly followed." 27 c.J.S. Disorderly Conduct § 1(1), at 509 (1 959).

disparagare (di-spar-J-gair-ee), vb. [Law Latin fr. Law French disparager "to disparage"] Hist. 1. To disparage. 2. To bring together unequal persons, as in a marriage between persons of unequal lineage. Cf. PARAGE. disparagatio (di-spar-J-gay-shee-oh), n. [Law Latin] Hist. Disparagement in marriage. disparagation (di-spar-J-gay-shJn), n. [Law French] Hist. 1. Disparagement. 2. A marriage below one's station. disparagement (di-spar-ij-mJnt), n. (16c) 1. A deroga­ tory comparison of one thing with another . 2. The act or an instance of castigating or detracting from the reputation of, esp. unfairly or untruthfully <when she told the press the details ofher husband's philandering, her statements amounted to disparagement>. 3. A false and injurious statement that

538

discredits or detracts from the reputation of another's character, property, product, or business.• To recover in tort for disparagement, the plaintiff must prove that the statement caused a third party to take some action resulting in specific pecuniary loss to the plaintiff. ­ Also termed injurious falsehood. - More narrowly termed slander oftitle; trade libel; slander ofgoods. See TRADE DISPARAGEMENT. Cf. commercial defamation under DEFAMATION. [Cases: Libel and Slander (;:::::c 130, 133.] 4. Reproach, disgrace, or indignity <self­ importance is a disparagement of greatness>. 5. Hist. The act or an instance of pairing an heir in marriage with someone of an inferior social rank . - disparage, vb. disparaging instruction. See JURY INSTRUCTION. disparaging mark. See disparaging trademark under TRADEMARK.

disparaging trademark. See TRADEMARK. disparate impact (dis-pJ-rit). (1973) The adverse effect of a facially neutral practice (esp. an employment practice) that nonetheless discriminates against persons because of their race, sex, national origin, age, or disability and that is not justified by business necessity.• Discrimina­ tory intent is irrelevant in a disparate-impact claim. ­ Also termed adverse impact. [Cases: Civil Rights (;:::::c 1033, 1140.] disparate treatment. The practice, esp. in employ­ ment, of intentionally dealing with persons differently because of their race, sex, national origin, age, or dis­ ability. • To succeed on a disparate-treatment claim, the plaintiff must prove that the defendant acted with discriminatory intent or motive. [Cases: Civil Rights (;:::::c 1033, 1138.] "Claims brought on behalf of a group of employees come in two varieties: claims of intentional discrimination (or disparate treatment) and claims of discriminatory impact (or disparate impact). The difference between these types of claims is significant, so much so that constitutional law only recognizes claims of disparate treatment, not disparate impact. Yet these two kinds of claims resemble one another, especially in the statistical evidence that the plaintiff must present in order to establish liability.... [C] lass claims of disparate treatment emphasize the historical perspective and its negative conception of equality as col­ orblindness, while class claims of disparate impact empha­ size the remedial perspective and its goal of eliminating the effects of past discrimination." George Rutherglen, Employment Discrimination Law 56 (2001).

disparity (di-spar-J-tee). (16c) Inequality; a difference in quantity or quality between two or more things. dispatch (di-spach also dis-pach), n. 1. A prompt sending off of something . 2. A prompt completion of something . 3. Something quickly sent . 4. Maritime law. The required diligence in discharging cargo . [Cases: Shipping (;:::::c47, 49(6).] customary dispatch. Dispatch that follows the rules, customs, and usages of the port where cargo is dis­ charged. [Cases: Shipping (;:::::c47, 49(6).]

disposition

539

quick dispatch. A speedy dispatch that does not strictly follow the customs of the port, esp. to avoid delays resulting from a crowded wharf. [Cases: Shipping 47,49(6).] 5. Maritime law. DISPATCH MONEY. dispatch money. Maritime law. An amount paid by a shipowner to a vessel's charterer if the vessel's cargo is unloaded at the port sooner than provided for in the agreement between the charterer and the shipowner. ­ Also termed dispatch. Cf. contract demurrage under DEMURRAGE. [Cases: Shipping \.~49(6).] "Some charters contain a provision for 'dispatch money,' which is in the nature of a reward to the charterer for loading or unloading more rapidly than provided for i.e., in less time than the stipulated 'lay days.' Dispatch, where payable, is usually stated, just as is demurrage, in terms of a rate per day and pro rata part thereof." Grant Gilmore & Charles L Black Jr., The Law ofAdmiralty § 4·8, at 212 (2d ed. 1975).

dispatch rule. See MAILBOX RULE. dispauper (dis-paw-par), vb. To disqualify from being a pauper; to deprive (a person) of the ability to sue in forma pauperis. See IN FORMA PAUPERIS. dispensary (di-spen-sar-ee), n. 1. A place where drugs are prepared or distributed. 2. An institution, usu. for the poor, where medical advice and medicines are dis­ tributed for free or at a discounted rate. dispensation (dis-pen-say-shan). An exemption from a law, duty, or penalty; permission to do something that is ordinarily forbidden. dispense with the reading ofthe minutes. Parliamentary law. To forgo reciting the secretary's proposed minutes at the regular time. - The reading is not foregone alto­ gether, but simply postponed. If the proposed minutes have been printed and circulated, then their correction and approval is in order without reading them aloud, and a motion to dispense with reading them is super­ fluous. dispersonare (dis-par-sa-nair-ee), vb. [Latin] Rist. To scandalize, disparage, or slander. displaced person. See PERSON (1). displaced-persons camp.lnt'l. law. In a nation in the throes of war, natural disaster, ethnic cleansing, or some similar extraordinary event, a temporary settle­ ment where citizens who have become homeless are temporarily provided with the basic necessities of life and given assistance in resetttling or emigrating. displacement. 1. Removal from a proper place or position . 2. A replacement; a substitution . 3. A forced removal of a person from the person's home or country, esp. because of war . 4. A shifting of emo­ tional emphaSiS from one thing to another, esp. to avoid unpleasant or unacceptable thoughts or tendencies <emotional displacement>. display right. (1944) Copyright. A copyright owner's exclusive right to show or exhibit a copy of the

protected work publicly, whether directly or by tech­ nological means. - For example, this right makes it illegal to transmit a copyrighted work over the Internet without permission. [Cases: Copyrights and Intellec­ tual Property 36.] dispone (dis-pohn), vb. [fr. Middle English disponen fr. Old French disponer "dispose"]l. Archaic. To dispose; to arrange. 2. Scots law. To convey, transfer, or other­ wise alienate (property), disponee. See ALIENEE. dispono (dis-poh-noh), vb. [Latin] Scots law. I grant or convey (land, etc.). _ This is traditionally the main verb in a grant. disponor. See ALIENOR. disposable earnings. See disposable income under INCOME.

disposable income. See INCOME. disposable portion. The portion of property that can be willed to anyone the testator chooses. [Cases: Wills 11.] disposal. Patents. A patent application's termination by withdrawal, rejection, or grant. - In some countries, the meaning is limited to rejection. [Cases: Patents 108.] disposing capacity. See testamentary capacity under CAPACITY (3). Disposing Clause. The clause of the U.S. Constitution giving Congress the power to dispose of property belonging to the federal government. U.S. Const. art. IV, § 3, d. 2. United States 58.) disposing mind. See testamentary capaCity under CAPACITY

(3).

disposition (dis-pa-zish-an), n. (14c) 1. The act oftrans­ fer ring something to another's care or possession, esp. by deed or will; the relinquishing of property .

testamentary disposition. A disposition to take effect

upon the death of the person making it, who retains substantially entire control of the property until death. [Cases: Wills 2. A final settlement or determination 1524.] dispute resolution. See ALTERNATIVE DISPUTE RESO­ LUTION.

dispute-resolution procedure. Intellectual property. A mechanism for resolving international grievances over intellectual-property protection, conducted by the World Trade Organization under the TRIPs agreement. • The procedure begins with a complaint by one nation against another, toll owed by consultations between the nations, a WTO panel report on the issue, and (poten­ tially) trade sanctions against one of the nations. disqualification, n. (18c) 1. Something that makes one ineligible; esp., a bias or conflict ofinterest that prevents a judge or juror from impartially hearing a case, or that prevents a lawyer from representing a party. [Cases: Judges (;:::::>39; Jury (;:::::>97.] vicarious disqualification. (1949) Disqualification of all the lawyers in a firm or in an office because one of the lawyers is ethically disqualified from representing the client at issue. - Also termed imputed disqualifi­ cation. [Cases: Attorney and Client (;:::>21.15.] "In general, disqualification of a lawyer from representa­ tion, at least in multiple client·conflict scenarios, means disqualification of that lawyer's entire firm from the same representation. When a lawyer has been exclusively or chiefly responsible for the representation of a client and that lawyer changes jobs, there is little question but that the imputed-disqualification rule will apply to disqualify the new firm from representing the opponent of the first client. But because lawyers often work for large organiza­ tions, ... a question may arise about the application of the imputation rule when a lawyer has left employment .... If the lawyer had little or no responsibility in the first organization for the representation or if the lawyer can be effectively shielded from the representation in the new organization, or both, there may be no useful purpose served by imputing the lawyer's disqualification to the new organization ...." James E. Moliterno &John M. Levy, Ethics

of the Lawyer's Work 151 (1993).

2. The act of making ineligible; the fact or condition of being ineligible. Cf. RECUSAL. disqualify, vb. disrate, vb. To reduce to a lower rank, esp. to reduce a ship or petty officer's rank. disrationare (dis-ray-shee-4.16.] division of property. See PROPERTY SETTLEMENT (1). division of the assembly. See DIVISION (1). division of the house. See DIVISION (1). division of the question. See DIVISION (2). division order. Oil & gas. A contract for the sale of oil or gas, specifying how the payments are to be distrib­ uted. _ Royalty owners enter into division orders to sell minerals and to instruct how payments are to be made under a mineral lease. Working-interest owners also commonly sign division orders to instruct purchasers how payments are to be divided. [Cases: Mines and Minerals (..,.'-::>79.1(3).] division vote. See DIVISION (1)_ divisum imperium (di-vI-z"m im-peer-ee-"m), n_ [Latin "a divided empire"] Divided jurisdiction; alternate jurisdiction, as of courts. "This main sea begins at the low-water-mark. But between the high-water-mark and the low-water-mark, where the sea ebbs and flows, the common law and admiralty have divisum imperium, an alternate jurisdiction; one upon the water, when it is full sea; the other upon the land, when it is an ebb." 1 William Blackstone, Commentaries on the Laws of England 107 (l765).

divorce. (14c) The legal dissolution of a marriage by a court. Also termed marital dissolution; dissolution ofmarriage. Cf. ANNULMENT. [Cases: Divorce C=>1.] divorce, vb. "When used Without qualification, the term [divorce] imports a dissolution of the marriage relation between

divorce husband and wife, that is, a complete severance of the tie by which the parties were united. However, in its common and wider use, the term includes the dissolution of a valid marriage, a formal separation of married persons, and the annulment of a marriage void from the beginning. "So, while the term 'divorce' has sometimes been broadly defined or applied to include both decrees of nullity and decrees of dissolution of marriage, especially where the marriage was not void but only VOidable at the option of the injured party, this has been declared to be not in accord with modern usage, and generally, the term denotes only dissolution or suspension of a marital relation, and does not include annulment of an invalid marriage." 27A CJS Divorce § 2, at 31-32 (1986).

550

divorce a vinculo matrimonii (ay ving-kYd-loh ma-trd­ moh-nee-I). [Latin "(divorce) from the chains of marriage"] (17c) A total divorce of husband and wife, dissolving the marriage tie and releaSing the parties wholly from their matrimonial obligations.• At common law, but not always in canon law, this type of divorce bastardized any children from the marriage and was granted on grounds that existed before the marriage. In England, the Matrimonial Causes Act of 1857 introduced statutory divorce a vinculo mat­ rimonii. Usu. shortened to divorce. Also termed absolute divorce. Cf. limited divorce. [Cases: Divorce

absolu~e divorce.

See divorce a vinculo matrimonii. bifurcated divorce. See divisible divorce. collaborative divorce. A divorce negotiated in a non­ adversarial forum, usu. between spouses who, with or without a lawyer, are assisted as needed by a team of experts in law, mental health, and financial matters (such as taxes and real estate). conditional divorce. See conversion divorce. contested divorce. 1. A divorce that one spouse opposes in court. 2. A divorce in which the spouses litigate. • In this sense, although both spouses may want the divorce, they disagree on the terms of the divorce decree. Cf. uncontested divorce. conversion divorce. A divorce granted after (1) a legal separation has been granted or the parties have signed a separation agreement, and (2) the parties have lived separately for a statutorily prescribed period. Also termed convertible divorce; conditional divorce. [Cases: Divorce divisible divorce. (I943) A divorce whereby the marriage itself is dissolved but the issues incident to the divorce, such as alimony, child custody, and visi­ tation, are reserved until a later proceeding. _ This type of divorce can be granted when the court has subject-matter jurisdiction but lacks personal juris­ diction over the defendant-spouse. The doctrine of divisible divorce was recognized by the Supreme Court in Estin v. Estin, 334 U.S. 541, 68 S.Ct. 1213 (1948), and Vanderbilt v. Vanderbilt, 354 U.S. 416, 77 S.Ct. 1360 Also termed bifurcated divorce. 146.] ­ divorce a mensa et thoro (ay men-Sd et thor-oh). [Latin "(divorce) from board and hearth"] (18c) Hist. A partial or qualified divorce by which the parties were separated and allowed or ordered to live apart, but remained technically married .• This type of divorce, abolished in England in 1857, was the forerunner of modern judicial separation. - Also termed separa­ tion a mensa et thoro; separation from bed and board; limited divorce; legal separation; judicial separation. [Cases: Divorce \;=> 155.] "[The Ecclesiastical Courts] grant also what is called a divorce a mensa et thoro, or rather what we should call a judicial separation, i.e. they release the parties from the duty of living together on grounds of cruelty or miscon­ duct ...." William Geldart, Introduction to English Law 38 (D.C.M. Yardley ed., 9th ed. 1984).

Dominican divorce. See Mexican divorce. ex parte divorce (eks pahr-tee). (1870) A divorce pro­ ceeding in which only one spouse participates or appears in court. [Cases: Divorce C::) 146.] fault divorce. A divorce granted to one spouse on the basis of some proven wrongful act (grounds for divorce) by the other spouse.• Although all states now have some form of no-fault divorce, some juris­ dictions still consider a spouse's fault in precipitating the divorce, esp. when dividing marital property or when awarding alimony. Traditionally, the common grounds for a fault divorce were adultery, abandon­ ment, imprisonment, and physical or mental cruelty; the defenses to alleged fault in a petition for divorce were condonation, connivance, collusion, recrimi­ nation, and insanity. Section 303(e) of the Uniform Marriage and Divorce Act has abolished the defenses to divorce. Cf. noJault divorce. foreign divorce. (I83l) A divorce obtained outside the state or country in which one spouse resides. [Cases: Divorce \;=>351-420.] Haitian divorce. See Mexican divorce. hotel divorce. Slang. A form of collusive divorce ­ occurring before widespread passage of no-fault divorce laws in which the spouses agree to fake an adultery scene to create "fault." Cf. noJault divorce. "Clearly a lawyer may not originate or participate in a scheme to make it appear to the court that a ground for divorce has occurred when this is not the fact. Such is the case in the so-called 'hotel divorces,' prevalent in jurisdic­ tions where adultery is the only ground for divorce, and based on the principle that intercourse will be presumed from apparently uninhibited opportunity." Henry S. Drinker, Legal Ethics 123-24 (1953).

legislative divorce. Hist. The legal termination of a par­ ticular marriage, through a statute enacted by the leg­ islature rather than by a court's decree. - In the 18th century, Colonial American legislatures granted these special statutes. In 1816, the House of Burgesses of Virginia granted a divorce to Rachel Robards Jackson, the wife of then President Andrew Jackson, from a former spouse. Mrs. Jackson's untimely death was attributed to her reaction to the scandal that she had married Jackson before the divorce was procured. Now only state courts have authority to grant decrees of divorce. - Also termed parliamentary divorce. [Cases: Divorce

limited divorce. (1831) 1. A divorce that ends the legal relationship of marriage by court order but does not address financial support, property distribution, or care and custody of children.• In the days before no-fault divorce, a spouse might seek a quick divorce in a state with a short reSidency requirement (such as Nevada). Then courts in the home state would give full faith and credit only to the dissolution of the marital res, while maintaining sale jurisdiction over property-division, support, and custody issues. 2. Loosely, a legal separa­ [Cases: Divorce tion. 3. See divorce a mensa et thoro. Cf. divorce a vinculo matrimonii. mail-order divorce. (1922) Slang. A divorce obtained by parties who are not physically present or domiciled in the jurisdiction purporting to grant the divorce .• Such a divorce is not recognized in the United States because of the absence of the usual bases for juris­ diction. Mexican divorce. A divorce obtained in Mexico by mail order or by the appearance of one spouse who does not have a Mexican domicile .• Neither type is rec­ ognized in the United States. Also termed Domini­ can divorce (if granted in the Dominican Republic); Haitian divorce (if granted in Haiti). migratory divorce. (1911) A divorce obtained in a jurisdiction other than the marital domicile; esp., a divorce obtained by a spouse who moves to, or tem­ porarily resides in, another state or country to get the divorce. no-fault divorce. (1969) A divorce in which the parties are not required to prove fault or grounds beyond a showing of the irretrievable breakdown of the marriage or irreconcilable differences .• The system of no- fault divorce has been adopted throughout the United States. By 1974,45 states had adopted no-fault divorce; by 1985, every state but New York had adopted some form of it. In New York - one of the last bastions offault grounds for divorce - the closest equivalent is a conversion divorce one year after legal separation or a legal-separation agreement. Cf. fault divorce; hotel divorce. [Cases: Divorce C=' 12.) parliamentary divorce. See legislative divorce. pro-con divorce. Slang. An uncontested divorce granted after only the plaintiff appears at the pro­ ceeding (since the defendant contests nothing). quickie div()rce. Slang. A fast divorce granted with minimal paperwork. Also termed quick divorce. rabbinical divorce. A divorce granted under the authority of a rabbi. • This type of divorce affects the relationship of the parties under the tenets of Judaism. It affects particularly a Jewish woman's ability to remarry in accordance with Judaic law. In the United States, it is not generally a divorce recog­ nized in civil courts. Also termed get. uncontested divorce. A divorce that is unopposed by the spouse who did not initiate it. Cf. contested divorce.

divorce agreement. A contractual agreement that sets out divorcing spouses' rights and responsibilities regarding property, alimony, custody, visitation, and child support. • The divorce agreement usu. becomes incorporated by court order as a part of the divorce decree and thus is enforceable by contempt, among other remedies. - Also termed agreement incident to divorce; marital settlement agreement; separation agree­ ment. Cf. PROPERTY SETTLEMENT. [Cases: Husband and Wife C=,277.) divorce decree. See DECREE. divorce proctor. A person (such as a guardian) who is appointed to protect the interest of the state or children in a divorce action. Sometimes shortened to proctor. [Cases: Infants 76.) divortium (di-vor-shee-;>m), n. [Latin) 1. Roman law. Divorce; a severance of the marriage tie.• In classical law, no grounds were required. Cf. REPUDIUM. 2. Eccles. law. A decree allowing spouses to separate or declaring their marriage invalid.

(>

"Owing to the fact that the church had but slowly made up her mind know to know no such thing as a divorce in our acceptation of that term (i.e., the dissolution of a valid marriage) the term divortium is currently used to signify two very different things, namely (1) the divortium quoad roYum, which is the equivalent of our 'judicial separation,' and (2) what is very often called the divortium quoad vinculum but is really a declaration of nullity. The persis· tence of the word divoytium in the latter case is a trace of an older state of affairs, but in medieval practice the decree of nullity often served the purpose of a true divorce; spouses who had quarrelled began to investigate their pedigrees and were unlucky if they could discover no impedimentum dirimens." 2 Frederick Pollock & Frederic William Maitland, History of English Law Before the Time of Edward 1393 n.5 (2d ed. 1899; repro 1959).

D.J. See district judge under Jt:DGE. DJIA. abbr. DOW JONES INDUSTRIAL AVERAGE. DLA. abbr. DEFENSE LOGISTICS AGENCY. DLiC. See documentary letter ofcredit under LETTER OF CREDIT.

DLOP. abbr. Dismissal for lack of prosecution. See dis­ missal for want ofprosecution under DISMISSAL (1). DLOP docket. See DWOP docket under DOCKET (z). DLSA. abbr. DEFENSE LEGAL SERVICES AGENCY. DMCA. abbr. DIGITAL MILLENNIUM COPYRIGHT ACT. DNA. abbr. Deoxyribonucleic acid; the double-helix structure in cell nuclei that carries the genetic infor­ mation of most living organisms. DNA identification. (1987) A method ofscientific iden­ tification based on a person's unique genetic makeup; sped£., the comparison of a person's deoxyribonucleic acid (DNA) a patterned chemical structure of genetic information with the DNA in a biological specimen (such as blood, tissue, or hair) to determine whether the person is the source of the specimen .• DNA evidence is used in criminal cases for purposes such as identify­ ing a victim's remains, linking a suspect to a crime, and exonerating an innocent suspect. Also termed DNA

fingerprinting; genetic fingerprinting: DNA profiling; DNA typing. Cf. HUMAN-LEUKOCYTE ANTIGEN TEST. [Cases: Criminal Law C=>388.2; Evidence 150.] DNR order. abbr. DO-NOT-RESUSCITATE ORDER. do (doh). [Latin] Rist. I give. - This term was considered the oldest and aptest for a feoffment and gift. DOC. abbr. DEPARTMENT OF COMMERCE. dock, n. 1. A structure that encloses water. often between two piers, in which ships are received for loading, unloading, safekeeping, or repair. [Cases: Wharves C=>4.] 2. 'The part of a warehouse or other building (usu. elevated with oversized doors) at which trucks are received for loading and unloading. 3. English law. In a criminal court, the enclosure in which the prisoner is placed during trial . See BAIL DOCK.

dockage. A charge for the use of a dock, esp. while a vessel is undergoing repairs. docket, n. (15c) 1. A formal record in which a judge or court clerk briefly notes all the proceedings and filings in a court case . - Also termed judicial record: bench docket: docket sheet. [Cases: Appeal and Error 493-543; Criminal LawC~1086.1-1088.20.] appearance docket. (I8c) A list of the parties and lawyers participating in an action, together with a brief abstract of the successive steps in the action. [Cases: Appearance Federal Civil Procedure C=>561.j judgment docket. (1826) A book that a court clerk keeps for the entry or recordation of judgments, giving official notice ofexisting judgment liens to interested parties. Also termed judgment book; judgment file; judgment record; judgment roll. [Cases: )udgment C=> 277, 284.] 2. A schedule of pending cases . 4. Par­ liamentary law. A list of each motion, report, election, and other business that awaits a deliberative assembly's consideration, from which a board or officer prepares

and circulates an agenda for each meeting or for a series of upcoming meetings . See AGENDA. S. A written abstract that provides specific information (usu. about something attached); esp., a label 171, 239.] doctrine of contagion. See CONTAGION.

doctrine of continuity. See CONTINUITY (2).

doctrine of contra non valentem (kon-tra non va-len­

tam). (1938) The rule that a limitations or prescriptive period does not begin to run against a plaintiff who is unable to act, usu. because of the defendant's culpable act, such as concealing material information that would Often shortened give rise to the plaintiffs claim. to contra non valentem. [Cases: Limitation of Actions (,;:::>43, 95.] doctrine of contra proferentem. See CONTRA PROFER­ ENTEM.

doctrine of equivalents

doctrine of curative admissibility. A rule allowing a party to introduce otherwise inadmissible evidence to remove the prejudice caused by the improper admis­ sion of evidence that was offered by the opposing party. - The doctrine applies when a motion to strike cannot cure the prejudice created by the adverse party. ­ Also termed curative-admissibility doctrine. [Cases: Criminal Law C::::O 396; Evidence (';:::> 155.] doctrine of discovered peril. See LAST-CLEAR-CHANCE DOCTRINE. doctrine of election (l8c). A doctrine holding that when a person has contracted with an agent without knowing of the agency and later learns the principal's identity, the person may enforce the contract against either the agent or the principal, but not both. See ELECTION (1); ELECTION OF REMEDIES. doctrine of entireties (en-tI-325-337.)

3. Evidence. Under the best-evidence rule, a physical embodiment of information or ideas, such as a letter, contract, receipt, account book, blueprint, or X-ray plate; esp., the original of such an embodiment. See Fed. R. Evid. 1001 et seq. [Cases: Criminal Law (::::::> 400; Evidence (::::::>157-187.) document, vb. (18c) 1. To support with records, instru­ ments, or other evidentiary authorities <document the chain of custody>. 2. To record; to create a written record of <document a file>. documentary credit. 1. Credit extended on a document of title or any other legal document. 2. A financing arrangement in which a financial institution authorizes or makes a payment to a third party (usu. an exporter) at a customer's request.• This financing method facilitates international transactions by providing the importer with necessary credit and the exporter with an expedited cash payment. documentary draft. See DRAFT. documentary evidence. See EVIDENCE. documentary instruction. A written agreement between an importer and exporter covering the relegation of various documents relating to the shipment and dis­ position of goods. documentary letter of credit. See LETTER OF CREDIT. documentary-originals rule. See BEST-EVIDENCE RULE.

documentary sale. See SALE. documentary stamp. A stamp required to be affixed to a deed or other instrument before it is recorded. documentary-stamp transfer tax. See stamp tax under TAX.

document of title. (18c) A written description, iden­ tification, or declaration of goods authorizing the holder (usu. a bailee) to receive, hold, and dispose of the document and the goods it covers .• Documents of title, such as bills oflading, warehouse receipts, and delivery orders, are generally governed by Article 7 of the Ucc. See BAILMENT (1)-(3). [Cases: Carriers (::::::> 51; Warehousemen (::::::> 11.)

negotiable document of title. A document of title that actually stands for the goods it covers, so that any transfer of the goods requires a surrender of the document. UCC § 7-104(1). [Cases: Bills and Notes (::::::> 151; Warehousemen (::::::> 15.) nonnegotiable document of title. A document of title that merely serves as evidence of the goods it covers. UCC § 7-104(2). [Cases: Warehousemen (::::::> 15.) document request. See REQUEST FOR PRODUCTION. documentum (dok-Y52, 503(1); Federal Courts C=>296; Taxation C=>2562, 3486.] domicile ofbirth. See domicile oforigin. domicile ofchoice. (1878) 1. A domicile established by physical presence within a state or territory, coupled with the intention to make it home. [Cases: Domicile 2. The domicile that a person chooses after reaching majority or being emancipated.

domicile oforigin. (1831) The domicile of a person at birth, derived from the custodial parent or imposed by law. - Also termed natural domicile; domicile of birth; original domicile. See necessary domicile. [Cases: Domicile (;=3.) "Domicil is sometimes divided into domicil of birth, that by operation of law, and that of choice. Domicil of origin in modern times is domicil in the place where his parents at his birth were domiciled." Theodore D. Woolsey, Intro· duction to the Study of International Law § 71, at 105 n.2 (5th ed. 1878). "Domicile of origin is the domicile the law assigns to each person at birth, usually the domicile of the father in the case of a legitimate child and of the mother in the case of an illegitimate child. Domicile of origin has particular sig­ nificance in English law. If one abandons one's domiCile of choice without attaining a new one, the domicile of origin 'revives' until a new domicile of choice is attained_ In contrast, U.s. jurisdictions generally will not find a domicile abandoned until a new one has been adopted." Robert C. lawrence III, International Tax and Estate Planning § 1.03(a) (1), at 4 (1989).

domicile ofsuccession. (1874) The domicile that deter­ mines the succession of a person's estate. domicile of trustee. lhe domicile where a trustee is appointed. [Cases: Trusts elected domicile. A contractually agreed domicile between parties for purposes of the contract. foreign domicile. A domicile established by a citizen or subject of one sovereignty within the territory of another. matrimonial domicile. A domicile that a husband and Wife, as a married couple, have established as their home. - Also termed marital domicile; matrimonial home. [Cases: Divorce (;=62; Husband and Wife 3(1).] municipal domicile. A person's residence in a county or municipality, as distinguished from the person's state or national domicile. national domicile. A domicile considered in terms of a particular nation rather than a locality or subdivi­ sion of a nation. natural domicile. See domicile oforigin. necessary domicile, A domicile lcgallyfixed and inde­ pendent of choice, as in the domicile of origin. See domicile oforigin. original domicile, See domicile oforigin. quasi-domicile. See commercial domicile. quasi-national domicile. A person's state of residence, as distinguished from the person's national or local domicile. domiciliary (dom-;}-sil-ee-er-ee), adj. (I8c) Of or relating to domicile <domiciliary jurisdiction>. domiciliary (dom-;}-sil-ee-er-ee), n. (1845) A person who resides in a particular place with the intention of making it a principal place of abode; one who is domi­ ciled in a particular jurisdiction. Cf. RESIDENT; CITIZEN (1).

domiciliary administration. See ADMINISTRATION.

domiciliary administrator

domiciliary administrator. See ADMINISTRATOR (2). domiciliary letters testamentary. See LETTERS TESTA­ MECIITARY. domiciliary parent. See PARENT. domiciliate (dom-a-sil-ee-ayt), vb. To establish a domicile; to fix a place of residence. domiciliation (dom-i-sil-ee-ay-sh.m), n. The act ofestab­ lishing a domicile. domicilium (dom-;l-sil-ee-;lm), n. [Law Latin] Roman law. DOMICILE. domiger~um (dom-;l-jeer-ee-am), n. [Law Latin] Hist. 1. Power over someone. 2. Danger. domina (dom-d-nd), n. [Law Latin]!. A lady. 2. A peeress. Cf. DAME (1), (2). dominant estate. See ESTATE (4). dominant-jurisdiction principle. (1995) The rule that the court in which a case is first filed maintains the suit, to the exclusion of all other courts that would also have jurisdiction. [Cases: Courts m-it or kahn-s. 4. To select (a jury) . drawback. A government allowance or refund on import duties when the importer reexports imported products rather than selling them domestically. 19 USCA § 1313. [Cases: Customs Duties (;::> 100.) drawee (draw-ee). (l8c) The person or entity that a draft is directed to and that is requested to pay the amount stated on it. _ The drawee is usu. a bank that is directed to pay a sum of money on an instrument. - Also termed payor. [Cases: Banks and Banking (;::> 137; Bills and Notes C=24.J drawee bank. See payor bank under BANK. drawer. (17c) One who directs a person or entity, usu. a bank, to pay a sum of money stated in an instrument for example, a person who writes a check; the maker of a note or draft. See MAKER. [Cases: Banks and Banking 137; Bills and Notes drawing. 1. Patents. A specially prepared figure included with a patent application to explain and describe the invention.• A drawing is required when necessary to understand the invention. 35 USCA § 113. [Cases: 100.] 2. Trademarks. A graphic or textual Patents depiction of a trademark, filed as part of an applica­ tion for the mark to be placed on the primary register. _ The drawing serves as the element that is published in the Official Gazette. It must include the applicant's name and address, the type of goods or services it will identify, and the date of first use or a statement of intent to use it in commerce. [Cases: Trademarks (;::> 1282.] formal drawing. A drawing that complies with the formatting requirements of the U.S. Patent and Trademark Office, as set forth in 37 CFR 1.84, and is stamped "Approved" by the PTa Drafter. Cf. informal drawing. [Cases: Patents (:::-~ 100.] front-page drawing. A drawing submitted with the patent application and selected by the examiner as the application's representative drawing. - The draWing is reproduced on the front page of the published appli­ cation or patent. [Cases: Patents (;::> 100.] informal drawing. A drawing that does not comply with the formatting requirements of the U.S. Patent and Trademark Office .• A drawing may be submit­ ted as informal by the patent applicant, or declared informal by the PTa Drafter. Cf. formal drawing.

original drawing. A drawing submitted with the original application.

special-form drawing. A drawing of a trademark that contains some graphical element, such as a logo, a picture, or a special type style .• A stylized or special­ form draWing must be submitted in black-and-white, with a description of the colors to be used on the final mark. Also termed stylized drawing. substitute drawing. A draWing submitted after the original application has been filed. - A substitute drawing is often a formal drawing filed to replace an informal drawing. [Cases: Patents (;::> 100.J typed drawing. A drawing of a trademark that is purely textual, with no graphical component.• A typed drawing consists solely of the words, letters, and numbers that make up the mark, typed in all­ capitals. - Also termed typed-form drawing. drawing account. See ACCOUNT. drawing lots. (l3c) An act of selection or decision-mak­ ing based on pure chance, with the result depending on the particular lot drawn. - Jurors are usu. instructed by the court not to base their verdict on drawing lots or similar methods of chance. drawlatch. Hist. A thief; a robber who waits until homes are empty, then draws the homes' door latches to steal what is inside. drayage. A charge for transporting property. DRE. abbr. DRUG-RECOGNITION EXPERT. dread-disease insurance. See INSURANCE. dreit dreit. See DROIT-DROIT. D reorganization. See REORGANIZATION (2). drift ofthe forest. Hist. A periodic examination of forest cattle by officers who drive them to an enclosed place to determine their ownership or common status. "Drift of the forest is nothing else but an exact view or examination taken once, twice, or oftener in a year as occasion shall require, what beasts there are in the forest, to the end that the common in the forest be not overcharged, that the beasts of foreigners that have no common there be not permitted, and that beasts not com­ monable may be put out." Termes de fa Ley 185-87 Ost Am_ ed. 1812).

drift-stuff. Any material floating at random in water without a discoverable source. - Drift-stuff is usu. the property of the riparian owner. drilling contract. Oil & gas. A well-drilling agreement between a drilling contractor, who owns drilling rigs and associated equipment, and the owner or lessor of the mineral rights. _ Ihe contract spells out the rights and duties of the parties. In general, the more control the interest-owner retains over the contractor, the more liability the owner is exposed to for damages the drilling causes. See DAYWORK DRILLING CONTRACT; FOOTAGE DRILUNG CONTRACT. [Cases: Mines and Minerals 109.] turnkey drilling contract. Oil & gas. A drilling contract under which the drilling contractor promises to

droit d'aubaine

569

perform specified functions for an agreed price. - The lease operator has little or no discretion to control the drilling contractor, and so assumes little or no liability for damages the drilling may cause. [Cases: Mines and Minerals (;::=> 109, 120.] drilling-delay rental clause. Oil & gas. A provision in an oil-and-gas lease giving the lessee the right to maintain the lease from period to period during the primary term a­ by paying delay rentals instead of starting dri tions. _ Lessees use drilling-delay rental dau se courts have said that they obviate any implied covenant to drill a test well on the premises. Ihey are accepted by lessors bel=ause they provide for periodic income from the lease. See "or" lease, "unless" lease under LEASE. [Cases: Mines and Minerals (;::=>78.1(3).] "The purpose of the lease drilling-delay rental clause is to ensure that the lessee has no obligation to drill during the primary term by negating any implied obligation to test the premises. Before drilling-delay rental clauses became common in oil and gas leases, many courts held that lessees had an implied duty to drill a test well on the leased premises within a reasonable time after grant of the lease. The rationale for the implied covenant was that the major consideration for the grant of the lease by the lessor was the expectation that the property would be tested within a reasonable time. The courts' determination of what was a reasonable time ranged from a few months to several years, depending upon the circumstances. Lessees found that they could not rely upon a long stated term alone to preserve their rights." John S. Lowe, Oil and Cas Law in a Nutshell 195-96 (3d ed. 1995).

drinking age. See AGE. drinking shop. See DRAM SHOP. DRIP. abbr. DIVIDEND-REINVESTMENT PLAN. drip rights. A servitude allowing water dripping off a person's roof to fall on a neighbor's land. Waters and Water Courses 121.] driver. 1. A person who steers and propels a vehicle. 2. A person who herds animals; a drover. driver's license. The state-issued certificate authorizing a person to operate a motor vehicle. - It is also often used as a form of identification. [Cases: Automobiles driving, n. The act of directing the course of something, such as an automobile or a herd of animals. driving under the influence. (1924) The offense of operating a motor vehicle in a phYSically or mentally impaired condition, esp. after consuming alcohol or drugs. _ Generally, this is a lesser offense than driving while intoxicated. But in a few jurisdictions the two are synonymous. - Abbr. DUr. Also termed driving while ability-impaired (DWAI); driving under the influ­ ence ofliquor (DUlL); driving while intoxicated (DWI); operating under the influence (OUI); operating while intoxicated (OWI); operating a motor vehicle while intoxicated (OMVI); operating a motor vehicle under Ole influence (OMVUI). Cf. DRIVING WHILE INTOXI­ CATED. [Cases: Automobiles driving while ability-impaired. See DRIVING UNDER THE INFLUENCE.

driving while intoxicated. (19l3) 1. The offense of operating a motor vehicle in a phYSically or mentally impaired condition after consuming enough alcohol to raise one's blood alcohol content above the statutory limit (.08% in many states), or after consuming drugs. _ Penalties vary widely; for example, the maximum penalty in Missouri and Louisiana is a $500 fine and six months in jail, while the penalties in New York range from $500 to $5,000 in fines and up to four years in jail. 2. DRIVING UNDER THE INFLUENCE. - Abbr. DWI. Also termed drunk driving. Cf. DRIVING UNDER THE INFLUENCE. [Cases: Automobiles 2396.] drop letter. A letter addressed to someone in the delivery area of the post office where the letter was posted. [Cases: Postal Service C=>23.] drop-shipment delivery. A manufacturer's shipment of goods directly to the consumer rather than initially to a wholesaler. • If the wholesaler takes the order, it may receive part of the profit from the sale. drop shipper. A wholesaler who arranges to have goods shipped directly from a manufacturer to a consumer. See DROP-SHIPMENT DELIVERY. dropsy testimony. See TESTIMONY. drove, n. 1. A group of animals driven in a herd. 2. A large group of people in motion. drover's pass. A free pass issued by a railroad company to the cattle's drover, who accompanies the cattle on the train. [Cases: Carriers C=>237.1.] DRP. abbr. DIVIDEND-REINVESTMENT PLAN. drug, n. (14c) 1. A substance intended for use in the diag­ nosis, cure, treatment, or prevention of disease. 2. A natural or synthetic substance that alters one's percep­ tion or consciousness. See CONTROLLED SUBSTANCE. [Cases: Controlled Substances C=>9.] addictive drug. A drug (such as heroin or nicotine) that, usu. after repeated consumption, causes physical dependence and results in well-defined phYSiologi­ cal symptoms upon withdrawal. [Cases: Controlled Substances C=>9.] adulterated drug. A drug that does not have the strength, quality, or purity represented or expected. copycat drug. See generic drug. dangerous drug. A drug that has potential for abuse or injury, usu. requiring a label warning that it cannot be dispensed without a prescription. [Cases: Controlled Substances C=>9.] designer drug. A chemical substance that is created to duplicate the pharmacological effects of controlled substances, often by using the same chemicals con­ tained in controlled substances, but manipulating their formulas. [Cases: Controlled Substances C=> 9,43.] ethical drug. A drug that can be dispensed only with a doctor's prescription. Cf. proprietary drug. generic drug. A drug containing the active ingredients but not necessarily the same excipient substances (such

as binders or capsules) as the pioneer drug marketed under a brand name. - Also termed copycat drug. See pioneer drug. [Cases: Health (~319.] new drug. A drug that experts have not recognized as safe and effective for use under the conditions pre­ scribed. 21 USCA § 321(p)(l), • The Food and Drug Administration must approve all new drugs before they can be marketed. [Cases: Health C~317.] orphan drug. A prescription drug developed to treat diseases affecting fewer than 200,000 people in the United States (such as a rare cancer) or whose devel­ opmental costs are not reasonably expected to be recovered from the drug's sales. 21 USCA § 360bb. [Cases: Health C'"::>319.] pioneer drug. The first drug that contains a particular active ingredient that is approved by the FDA for a specified use. precompounded prescription drug. A drug that is dis­ tributed from the manufacturer, to the pharmacist, and then to the consumer without a change in form. proprietary drug. A drug that is prepared and packaged for the public's immediate use .• Proprietary drugs may be sold over the counter. Cf. ethical drug. drug abuse. The detrimental state produced by the repeated consumption of a narcotic or other poten­ tially dangerous drug, other than as prescribed by a doctor to treat an illness or other medical condition. [Cases: Chemical Dependents 1; Controlled Sub­ stances (;:::>38.] drug addict. See ADDICT. drug-assistance program. 1. A governmental program to ensure access to necessary prescription medicines for needy people who are uninsured or underinsured or who otherwise lack health coverage. 2. Rehabilita­ tive counseling, and monitoring, usu. in a nonresiden­ tial setting, for detecting and treating users of illegal drugs. drug court. See COURT. drug dependence. The psychological or physiological need for a drug. [Cases: Chemical Dependents (;:::> L] drug-free zone. (1986) An area in which the possession or distribution of a controlled substance results in an increased penalty. • Drug-free zones are often estab­ lished, for example, around public schools. [Cases: Controlled Substances 100.] druggist. A person who mixes, compounds, dispenses, or otherwise deals in drugs and medicines, usu. either as a proprietor of a drugstore or as a pharmacist. drug kingpin. An organizer, leader, manager, financier, or supervisor of a drug conspiracy; a person who has great authority in running an illegal drug operation, drug paraphernalia. (1920) Criminal law. Any type of equipment, product, or material that is primarily deSigned or intended for the unlawful manufacture, processing, or hiding of a controlled substance, or for the introduction of a controlled substance into

the human body, when possession of the substance is unlawful. 21 USCA § 863(d). [Cases: Controlled Sub­ 89.] stances Drug Price Competition and Patent Term Restoration Actofl984. See HATCH-WAXMAN ACT. drug-recognition expert. A person trained to identify various types of drugs and alcohol, to understand the effects that drugs and alcohol have on people, and to recognize the signs and symptoms of drug and alcohol intoxication. - Abbr. DRE. drug trafficking. See TRAFFICKING. drummer. 1. A commercial agent who travels around taking orders for goods to be shipped from wholesale merchants to retail dealers; a traveling sales represen­ tative. 2. A traveling salesperson. [Cases: Licenses 15(6).] drummer floater policy. See INSURANCE POLlCY. drungarius (dr;}ng-gair-ee-;}s), n. [Law Latin] Hist. 1. A commander of a band of soldiers. 2. A naval com­ mander. drungus (dr.mg-g;}s), n. [Law Latin] Hist. A band of soldiers. drunk, adj. Intoxicated; (of a person) under the influ­ ence of intoxicating liquor to such a degree that the normal capacity for rational thought and conduct is impaired. drunk, n. drunkard. 1. A person who consumes intoxicating substances frequently and exceSSively; esp., one who is habitually or often intoxicated. 2. An alcoholic .• This term may also be used to refer to a drug addict. Also termed habitual drunkard. [Cases: Chemical Depen­ dents Cr·j 1.] drunk driving. See DRIVING WHILE INTOXICATED. drunkenness. 1. A state ofintoxication; inebriation; the condition resulting from a person's ingestion ofexces­ sive amounts of intoxicating liquors sufficient to affect the person's normal capacity for rational thought and conduct. 2. A habitual state of intoxication. [Cases: Chemical Dependents excessive drunkenness. A state of drunkenness in which a person is so far deprived of reason and under­ standing that he or she is incapable of understanding the character and consequences of an act. drunkometer (dr;}ng-kom-;}-t;}r). See BREATHALYZER. dry, adj. (bef. 12c) 1. Free from moisture; desiccated . 2. Unfruitful; destitute of profitable interest; nominal . 3. (Of a jurisdiction) prohibiting the sale or use of alcoholic beverages . [Cases: Intoxicating Liquors (;:::>24-43.] dry check. See bad check under CHECK. dry exchange. Something that pretends to pass on both sides of a transaction, but passes on only one side. "Dry exchange, . , seems to be a subtil term invented to disguise usury, in which something is pretended to pass on both sides, whereas in truth nothing passes on the one side." Termes de la Ley 185 (1 st Am. ed. 1812),

573

dual-sovereignty doctrine "DRY EXCHANGE . . . • A euphemism applied to the 'coverture' or 'colouring' of the stringent statutes passed during the Tudor period against usury .... Usury, which was con­ demned by religion and law alike during the middle ages, was from the middle of the 16th century no longer to be confounded with the legitimate employment of capital; but the sentiment which inspired the above enactments was that of governing classes associated with the landed interest." 1 R.H. Inglis Palgrave, Palgrave's Dictionary of Political Economy 643 (Henry Higgs ed., 2d ed. 1925).

dry hole. Oil & gas. An oil or gas well that is incapable of producing enough minerals to justify the cost of com­ pleting it and putting it into production. dry-hole agreement. Oil & gas. A support agreement in which 'the contributing party agrees to make a cash contribution to the drilling party in exchange for geo­ logical or drilling information if the well drilled is unproductive. See SUPPORT AGREEMENT. [Cases: Mines and Minerals (;:::> 109.] dry-hole clause. Oil & gas. A provision in an oil-and­ gas lease specifying what a lessee must do to maintain the lease for the remainder of the primary term after drilling an unproductive well. • A dry-hole clause is intended to make clear that the lessee may maintain the lease by paying delay rentals for the remainder of the primary term. [Cases: Mines and Minerals (;:::> 78.1(3).] dry mortgage. See MORTGAGE. dry presumption. See PRESUMPTION. dry receivership. See RECEIVERSHIP. dry rent. See RENT (1). dry trust. See TRUST. DS. abbr. BUREAU OF DIPLOMATIC SECURITY. d.s.b. abbr. DEBET SINE BREVE. DSCA. abbr. DEFENSE SECURITY COOPERATION AGENCY.

DSS. abbr. 1.

DEPARTMENT OF SOCIAL SERVICES.

2.

DEFENSE SECURITY SERVICE.

DTC. abbr. DEPOSITORY TRUST CORPORATION. DTRA. abbr. DEFENSE THREAT REDUCTION AGENCY. d.t.'s. abbr. DELIRIUM TREMENS. dual agent. See AGENT (2). dual-capacity doctrine. (1914) The principle that makes an employer - who is normally shielded from tort lia­ bility by workers'-compensation laws -liable in tort to an employee if the employer and employee stand in a secondary relationship that confers independent obligations on the employer. - Also termed dual-per­ sona doctrine. Cf. DUAL-PURPOSE DOCTRINE. [Cases: Workers' Compensation (;:::>2162.] dual citizenship. 1. A person's status as a citizen of two countries, as when the person is born in the United States to parents who are citizens of another country, or one country still recognizes a person as a citizen even though that person has acquired citizenship in another country. [Cases: Citizens (;:::> 18.] 2. The status

of a person who is a citizen of both the United States and the person's country of residence. dual contract. See CONTRACT. dual-criminality principle. The rule prohibiting the international extradition of a fugitive unless the offense involves conduct that is criminal in both countries. [Cases: Extradition and Detainers (;:::>5.] dual distributor. (1945) A firm that sells goods simulta­ neously to buyers on two different levels of the distri­ bution chain; esp., a manufacturer that sells directly to both wholesalers and retailers. dual distributorship. See DISTRIBUTORSHIP. dual employment. See MOONLIGHTING. dual fund. See MUTUAL FUND. dual inheritance. See INHERITANCE. duality of art. Copyright. The twofold nature of applied art as both functional and aesthetic .• The United States takes a duality-of-art approach to copyright, protecting applied art only when the item could stand alone as an identifiable work of art even if it did not perform the function it was designed to do. - Also termed noncu­ mulative approach. Cf. UNITY OF ART. dual listing. See LISTING (2). dual-persona doctrine (d[y]oo-JI pJr-soh-nJ). (1982) See DUAL-CAPACITY DOCTRINE. dual-priorities rule. The principle that partnership cred­ itors have priority for partnership assets and that indi­ vidual creditors have priority for a partner's personal assets.• This rule has been abandoned by the bank­ ruptcy laws and the Revised Uniform Partnership Act. The bankruptcy code now allows partnership creditors access to all assets ofbankrupt partners, not just those remaining after payment to individual creditors. ­ Also termed jingle rule. dual-prosecution rule. (1981) The principle that the federal government and a state government may both prosecute a defendant for the same offense because both governments are separate and distinct entities. See DUAL-SOVEREIGNTY DOCTRINE. [Cases: Double Jeopardy (;:::> 186.] dual-purpose doctrine. (1953) The principle that an employer is liable for an employee's injury that occurs during a business trip even though the trip also serves a personal purpose. Cf. DUAL-CAPACITY DOCTRINE. [Cases: Labor and Employment (;:::>3046(2); Workers' Compensation (;:::>715.] dual-purpose fund. See dual fund under MUTUAL FUND.

dual-residential parent. See PARENT. dual-shop operation. See DOUBLE-BREASTING. dual-sovereignty doctrine. (1957) The rule that the federal and state governments may both prosecute a person for a crime without violating the consti­ tutional protection against double jeopardy, if the person's act violated both jurisdictions' laws. See

duarchy

DUAL-PROSECUTION RULE. [Cases: Double Jeopardy 186.]

duarchy (d[y]oo-ahr-kee), n. [fro Greek duo "two" + archia "rule"] See DIARCHY. dubii juris (d[y]oo-bee-I joor-is). [Latin] Hist. Of doubtful law. - The phrase appeared in reference to an unsettled legal point. dubitante (d[yJoo-bi-tan-tee). [Latin] Doubting. - This term was usu. placed in a law report next to a judge's name, indicating that the judge doubted a legal point but was unwilling to state that it was wrong. - Also termed dubitans. "[E]xpressing the epitome of the common law spirit, there is the opinion entered dubitante ~ the judge is unhappy about some aspect of the decision rendered, but cannot quite bring himselfto record an open dissent." Lon L. Fuller, Anatomvofthe Law147 (1968).

dubitatur (d[y]oo-bi-tay-tdr). [Latin] It is doubted. - This phrase indicates that a point oflaw is doubtful. - Also termed dubitavit. ducat (dak-it). A gold coin used as currency, primarily in Europe and first appearing in Venice in the early BOOs, with the motto sit Ubi, Christe, dato, quem tu regis, iste Ducatus ("let this duchy which thou rulest be dedicated to thee, 0 Christ"). - It survived into the 20th century in several countries, including Austria and the Netherlands. ducatus (d[y]d-kay-tds), n. [Law Latin] A duchy; a dukedom. duces tecum (d[y]oo-S4S.30.J "Dueling is prearranged fighting with deadly weapons, usually under certain agreed or prescribed rules .... It is a misdemeanor at common law to fight a duel, even though

no death result, to challenge another to a duel, intention· ally to provoke such a challenge, or knowingly to be the bearer of such a challenge." Rollin M. Perkins & Ronald N. Boyce, Criminal Law 243 (3d ed. 1982).

duellum (q[y]oo-el-675; Indictment and Information Pleading duplum (d[y]oo-pl~m). [Latin] Roman & civil law. Double the price of something; esp., a measure of damages equal to double a thing's value .• This measure was used for certain delicts. Cf. SIMPLUM. duply. See DUPLICATIO (1). durable goods. See GOODS. durable lease. See LEASE. durable power of attorney. See POWER OF ATTORNEY. durables. See durable goods under GOODS. durante (d[y]~-ran-tee). [Law Latin] While; during, as in durante minore aetate (" durin minority"), durante , durante virginitate viduitate ("during widowho ("during virginity"), and durante vita ("during life"). • The term was often used in conveyancing. durante absentia (d(y]~-ran-tee ab-sen-shee-60.J 2. A length of time; a continuance in time 1.) 2. A duty imposed by the law of contracts. delegable duty. (1908) A duty that may be transferred to another to perform. See ASSIGNMENT.

580

duty to act. (17c) A duty to take some action to prevent harm to another, and for the failure of which one may be liable depending on the relationship ofthe parties and the circumstances. [Cases: Negligence ~210.1 duty to defend. Insurance. The obligation ofan insurer to provide an insured with a legal defense against claims of liability, within the terms of the policy. _ The duty to defend applies if the terms of the policy and the facts of the claim allow an ambiguity about whether the insurer will have a duty to indemnify the insured. It does not apply if no such ambiguity exists. [Cases: Insurance ~2911.) duty to indemnify. An obligation to compensate another for the other's loss .• The duty arises under the terms of an agreement, which governs the extent of the duty. An insurance policy is fundamentally an indemnification agreement, but the duty is often made a part of other contracts as well. [Cases: Indem­ nity~25, 31-39; Insurance ~2092, 2268.] duty to settle. Insurance. The obligation of an insurer to negotiate and settle third-party claims against an insured in good faith. duty to speak. (16c) A requirement (not strictly a duty) to say something to correct another's false impres­ sion.• For example, a duty to speak may arise when a person has, during the course of negotiations, said something that was true at the time but that has ceased to be true before the contract is Signed. [Cases: Fraud equitable duty. A duty enforceable in a court of chancery or in a court having the powers of a court in chancery. imperfect duty. 1. A duty that, though recognized by law, is not enforceable against the person who owes it. 2. A duty that is not fit for enforcement but should be left to the discretion and conscience of the person whose duty it is. implied duty ofcooperation. A duty existing in every contract, obligating each party to cooperate with, or at least not to wrongfully hinder, the other party's performance.• Breach of this implied duty excuses performance. [Cases: Contracts ~ 168.) legal duty. (17c) A duty arising by contract or by opera­ tion of law; an obligation the breach ofwhich would give a legal remedy . moral duty. A duty the breach of which would be a moral wrong. Also termed natural duty. negative duty. A duty that forbids someone to do some­ thing; a duty that requires someone to abstain from something. - Also termed passive duty. noncontractual duty. A duty that arises independently of any contract. nondelegable duty (non-del-;J-g;J-bCll). (1902) 1. Con­ tracts. A duty that cannot be delegated by a contract­ ing party to a third party. - If a contracting party purports to delegate the duty, the other party can

rightfully refuse to accept performance by the third 19; Principal and party. [Cases: Assignments Agent C=>S4.]2. Torts. A duty that may be delegated to an independent contractor by a principal, who retains primary (as opposed to vicarious) responsibility if the duty is not properly performed .• For example, a landlord's duty to maintain common areas, though delegated to a service contractor, remains the land­ lord's responsibility if someone is injured by improper maintenance. [Cases: Labor and Employment c=> 2848,3133; Landlord and Tenant C=> 162; Negligence C=> 1204(1).] passive duty. See negative duty. perfect duty. A duty that is not merely recognized by the law but is actually enforceable. positive duty. A duty that requires a person either to do some definite action or to engage in a continued course of action. Also termed active duty. preexisting duty. (1823) A duty that one is already legally bound to perform. See PREEXISTING-DUTY RULE.

quasi-judicial duty. A discretionary judicial duty that a nonjudicial officer may perform under some cir­ cumstances. 2. Any action, performance, task, or observance owed by a person in an official or fiduciary capacity. discretionary duty. A duty that allows a person to exercise judgment and choose to perform or not perform. Cf. ministerial duty. duty ofcandor (kan-d307, 312(5).] duty ofcandor and good faith. Patents. A patent appJi­ cant's responsibility to disclose to the U.S. Patent and Trademark Office all known information relevant to the invention's patentability, esp. prior art, novelty, and embodiment. • If an applicant fails to be candid in disclosing all relevant information, the PTO may reject the application. If the patent is issued and undisclosed but relevant information is discovered later, the patent may be invalidated, and the applicant charged with fraud on the PTO, even if the undis­ closed information might not have barred the patent's issuance. 37 CFR 1.56. [Cases; Patents C=>97.] duty offair representation. A labor union's duty to represent its member employees fairly, honestly, and in good faith. [Cases: Labor and Employment l207.]

duty ofgood faith and fair dealing. A duty that is implied in some contractual relationships, requir­ ing the parties to deal with each other fairly, so that neither prohibits the other from realizing the agree­ ment's benefits. See GOOD FAITH; BAD FAITH. [Cases: Contracts C'~:, 168.]

duty ofloyalty. A person's duty not to engage in self­ dealing or otherwise use his or her position to further personal interests rather than those of the beneficiary. • For example, directors have a duty not to engage in self-dealing to further their own personal interests rather than the interests of the corporation. fiduciary duty (fi-d[y]oo-shee-er-ee). A duty of utmost good faith, trust, confidence, and candor owed by a fiduciary (such as a lawyer or corporate officer) to the beneficiary (such as a lawyer's client or a shareholder); a duty to act with the highest degree of honesty and loyalty toward another person and in the best interests ofthe other person (such as the duty that one partner owes to another). See FIDUCIARy;fiduciary relation­ ship under RELATIONSHIP. [Cases: Fraud C=>7.] ministerial duty. A duty that requires neither the exercise of official discretion nor judgment. Cf. dis­ cretionary duty. proprietary duty. A duty owed by a governmental entity while engaged in a proprietary, rather than governmental, activity. [Cases; Municipal Corpora­ tions (;::~") 725.] 3. Torts. A legal relationship arising from a standard of care, the violation of which subjects the actor to liabil­ ity. Also termed duty ofeare. [Cases: Negligence 210.] 4. A tax imposed on a commodity or transac­ tion, esp. on imports; IMPOST. • A duty in this sense is imposed on things, not persons. account duty. An inheritance tax payable by a dece­ dent's beneficiary. ad valorem duty. A tax calculated as a percentage ofan imported product's value. Cf. compound duty; specific duty. antidumping duty. See antidumping tariff under TARIFF

(3).

compound duty. A tax based on a combination of imported goods' weight, volume, or item count, plus a percentage of their value. Cf ad valorem duty; specific duty. countervailing duty. A tax imposed on manufactur­ ers of imported goods to protect domestic industry by offsetting subsidies given by foreign governments to those manufacturers. [Cases; Customs Duties 21.5.] customs duty. A tax levied on an imported or exported commodity; esp., the federal tax levied on goods shipped into the United States. Also death duty. An estate tax or inheritance tax. termed estate duty. duty ofdetraction. A tax on property acquired by suc­ cession or will and then removed from one state to another. estate duty. Hist. English law. A tax imposed on the principal value of all property that passed on death. • Estate duties were first imposed in 1889. A capital transfer tax replaced it in 1975. Since 1986, an inher­ itance tax has applied instead, with exceptions for

duty-bound

certain transactions entered into before then. See death duty. import duty. A tax on the importation of a product. ­ Also termed duty on import. legacy duty. See legacy tax under TAX. probate duty. A tax assessed by the government either on every will admitted to probate or on the gross value of the decedent's personal property. specific duty. A tax calculated on an import's weight, volume, or item count. Cf. ad valorem duty; compound duty. succession duty. A tax payable by the successor to real property, esp. when the successor has not pur­ chased the property for value but has succeeded to the property in some other way. tonnage duty. A charge imposed on a commercial vessel for entering, remaining in, or leaving a port., usu. assessed on the basis of the ship's weight .• U.S. Canst. art. I, § 10, cl. 3 prohibits the states from levying tonnage duties. - Also termed tonnage tax; tonnage. [Cases: Commerce ~78; Shipping ~7.) unascertained duty. A preliminary, estimated payment to a customs collector of the duty that will be due on final accounting .• An importer pays this duty to receive permission to land and sell the goods. duty-bound, adj. Required by legal or moral obligation to do something <Jones is duty-bound to deliver the goods by Friday>. duty-free, adj. Of or relating to products offoreign origin that are not subject to import or export taxes. duty judge. See JUDGE. duty of care. See DUTY (3). duty of the flag. Hist. A maritime ceremony by which a foreign vessel struck her flag and lowered her topsail upon meeting the British flag .• The ceremony was an acknowledgment of British sovereignty over the British seas. duty of tonnage (t;m-ij). See tonnage duty under DUTY (4).

duty of water. The amount ofwater necessary to irrigate a given tract. duty on import. See import duty under DUTY (4). duty-to-defend clause. Insurance. A liability-insur­ ance provision obligating the insurer to take over the defense of any lawsuit brought by a third party against the insured on a claim that falls within the policy's coverage. See duty to defend under DUTY (1). [Cases: Insurance ~29ll.) duty to mitigate (mit-i-gayt). (1891) A nonbreaching party's or tort victim's duty to make reasonable efforts to limit losses resulting from the other party's breach or tort. • Not doing so precludes the party from col­ lecting damages that might have been avoided. See MITIGATION-OF-DAMAGES DOCTRINE. [Cases: Damages ~62.)

582

duumviri (d[y]oo-;Jm-v;J-n), n. pl. [fr. Latin due "two" + viri "men") 1. Roman law. Magistrates elected or appointed in pairs to hold an office or perform a function. duumviri municipales (d[y]oo-;Jm-v;J-n myoo-nis-;J­ pay-leez). [Latin) Two judicial magistrates annually elected in towns and colonies. duumviri navales (d[y]oo-;Jm-v;J-n n;J-vay-leez). [Latin] Two officers appointed to man, equip, and refit the navy. 2. Two peers in authority. - Also termed duoviri. dux (d;Jks), n. [fr. Latin ducere "to lead"] 1. Roman law. An army commander. 2. Roman law. A military governor of a province .• This term was eventually used also as a title of distinction. 3. Hist. Duke; a title of nobility. See DUKE. DWAI. abbr. Driving while ability-impaired. See DRIVING UNDER THE INFLUENCE.

dwell, vb. (l3c) 1. To remain; to linger . 2. To reside in a place permanently or for some period . dwelling defense. See CASTLE DOCTRINE. dwelling-house. (lSc) 1. The house or other structure in which a person lives; a residence or abode. 2. Real estate. The house and all buildings attached to or connected with the house. 3. Criminal law. A building, a part of a building, a tent, a mobile home, or another enclosed space that is used or intended for use as a human habi­ tation.• The term has referred to connected buildings in the same curtilage but now typically includes only the structures connected either directly with the house or by an enclosed passageway. - Often shortened to dwelling. - Also termed (archaically) mansion house; (more broadly) dwelling place. [Cases: Burglary ~ 4.] quasi-dwelling-house. Hist. Any outbuilding, such as a barn, that is in proximity to the building used as a residence. See BURGLARY (1). "A 'dwelling house' or 'dwelling' has been defined in con­ nection with the crime of arson as any house intended to be occupied as a residence, or an enclosed space, permanent or temporary, in which human beings usually stay, lodge, or reside. If a building is not used exclusively as a dwelling, it is characterized as a dwelling if there is internal commu­ nication between the two parts of the building. Dwellings include mobile homes and a boat, if the person resides on it." 5 Am. Jur. 2d Arson and Related Offenses § 13, at 789 (1995).

DWI. abbr. DRIVING WHILE INTOXICATED. DWOP (dee-wop or doo-wop). abbr. See dismissal for want ofprosecution under DISMISSAL (1). DWOP docket. See DOCKET (2). dyarchy (dI-ahr-kee), n. [fr. Greek dy "two" + archein "rule"] A government jointly ruled by two people, such as William and Mary of England. - Also termed diarchy.

583

dyvour "Dyarchy. A term applied by Mommsen to the Roman prin­ cipate ... a period in which he held that sovereignty was shared between the princes and the senate. The term has also been given to a system of government, promoted as a constitutional reform in India by Montagu and Chelmsford and introduced by the Government of India Act, 1919. It marked the introduction of democracy into the executive of the British administration of India by dividing the provincial executives into authoritarian and popularly responsible sections composed respectively of councillors appointed by the Crown and ministers appointed by the governor and responsible to the provincial legislative councils .... The system ended when full provincial autonomy was granted in 1935." David M. Walker, The Oxford Companion to Law 386 (1980).

dyathanasia, (dI-ath-a-nay-zha), n. 1be act of permit­ ting death to occur naturally by withholding, termi­ nating, or not offering life-prolonging treatments or intervention. Also termed passive mercy killing. See EUTHANASIA. Dyer Act. A federal law, enacted in 1919, making it unlawful either (1) to transport a stolen motor vehicle across state lines, knowing it to be stolen, or (2) to receive, conceal, or sell such a vehicle, knowing it

to be stolen. 18 USC A §§ 2311-2313. - Also termed National Motor Vehicle Theft Act. [Cases: Automobiles 341.] dyet. See DIET. dying declaration. See DECLARATION (6). dying without issue. See FAILURE OF ISSUE. dynamite charge. See ALLEN CHARGE. dynamite instruction. See ALLEN CHARGE. dynasty. 1. A powerful family line that continues for a long time . 2. A powerful group of individuals who control a particular industry or field and who control their successors . dynasty trust. See TRUST. dysnomy (dis-nd-mee), n. [fro Greek dys "bad" + nomos "law"] The enactment of bad legislation. Cf. EUONOMY. dyvour (dI-var). Scots law. A person who is heavily in debt or bankrupt.

E

eadem persona cum defuncto (ee-ay-d;)m p;)r-soh-n;) k;)m di-bngk-toh). [Law Latin] Hist. The same person as the decedent. • An heir having full title to the dece­ dent's property was legally viewed to be the same person as the decedent. ea intentione (ee-;) in-ten-shee-oh-nee). [Latin] With that intent. EAJA. abbr. EQUAL ACCESS TO JUSTICE ACT. E&O insurance. See errors-and-omissions insurance under INSURANCE. earl. (12c) A title of nobility, formerly the highest in England but now the third highest, ranking between a marquis and a viscount .• This title corresponds with the French comte and the German graf Originating with the Saxons, this title is the most ancient of the English peerage. William the Conqueror first made the title hereditary, giving it in fee to his nobles. No ter­ ritorial, private, or judicial rights now accompany the title; it merely confers nobility and a hereditary seat in the House of Lords. earldom. 1he dignity or jurisdiction of an earL. Only the dignity remains now, the jurisdiction haVing been given over to the sheriff. See DIGNITY. earles-penny. Hist. Money given in part payment; EARNEST. - Also termed earl's penny. Earl Marshal of England. A great officer of state, who historically had jurisdiction over several courts, includ­ ing the court of chivalry and the court ofhonor.• Under this office is the herald's office, or college of arms. The Earl Marshal was also a judge ofthe Marshalsea court, now abolished. This office is quite ancient. Since 1672, it has been hereditary in the family of Howards, Dukes of Norfolk. Often shortened to Earl Marshal. earl's penny. See EARLES-PENNY. early voting. See VOTING. earmark, n. (16c) 1. Originally, a mark upon the ear a mode of marking sheep and other animals. [Cases: Animals "When now·a·days we say that 'money has no ear-mark,' we are alluding to a practice which in all probability played a large part in anCient law. Cattle were ear-marked or branded, and this enabled their owner to swear that they were his in whosesoever hands he might find them. The legal supposition is, not that one ox is indistinguishable from another ox, but that all oxen, or all oxen of a certain large class, are equivalent. The possibility of using them as money has rested on this supposition." 2 Frederick Pollock & Frederic William Maitland, History of English Law Before the Time of Edward 1151-52 (2d ed. 1899).

2. A mark put on something (such as a coin) to distin­ guish it from another.

earmark, vb. 1. To mark with an earmark. 2. To set aside for a specific purpose or recipient. earmarking doctrine. Bankruptcy. An equitable prin­ ciple that when a new lender makes a loan to enable a debtor to payoff a specified creditor, the funds are spe­ cifically set aside for that creditor so that, if the debtor lacks control over the disposition of the funds, they do not become part ofthe debtor's estate and thus subject to a preference. lCases: Bankruptcy (::::J261O.] earn, vb. (bef. 12c) 1. To acquire by labor, service, or performance. 2. To do something that entitles one to a reward or result, whether it is received or not. earned income. See INCOME. earned-income credit. See TAX CREDIT. earned land. See LA:ND. earned premium. See PREMIUM (1). earned surplus. See retained earnings under EARNINGS. earned time. See TIME. earner. 1. One who produces income through personal efforts or property or both. 2. Property or an asset that produces income for its owner. earnest, n. (13c) 1. A nominal payment or token act that serves as a pledge or a sign of good faith, esp. as the partial purchase price ofproperty.• Though not legally necessary, an earnest may help the parties come to an agreement. 2. EARNEST MONEY. earnest money. (l6c) A deposit paid (often in escrow) by a prospective buyer (esp. of real estate) to show a good-faith intention to complete the transaction, and ordinarily forfeited if the buyer defaults .• Although earnest money has traditionally been a nominal sum (such as a nickel or a dollar) used in the sale of goods, it is not a mere token in the real-estate context: it is generally a percentage of the purchase price and may be a substantial sum. - Also termed earnest; bargain money; caution money; hand money. Cf. BINDER (2); down payment under PAYMENT. [Cases: Vendor and Purchaser C--Y69.1, 182.] "The amount of earnest money deposited rarely exceeds 10 percent of the purchase price, and its primary purpose is to serve as a source of payment of damages should the buyer default. Earnest money is not essential to make a purchase agreement binding if the buyer's and seller's exchange of mutual promises of performance (that is, the buyer's promise to purchase and the seller's promise to sell at a specified price and terms) constitutes the consideration for the contract." John W. Reilly. The Language of Real Estate 131 (4th ed. 1993).

earnest-penny. See GOo's PENNY. earning asset. See ASSET. earning capacity. (1872) A person's ability or power to earn money, given the person's talent, skills, training,

585

and experience.• Earning capacity is one element con­ sidered when measuring the damages recoverable in a personal-injury lawsuit. And in family law, earning capacity is considered when awarding child support and spousal maintenance (or alimony) and in dividing property between spouses upon divorce. - Also termed earning power. See LOST EARNING CAPACITY. earnings. (16c) Revenue gained from labor or services, from the investment of capital, or from assets. See INCOME.

appropriated retained earnings. Retained earnings that a company's board deSignates for a distinct use, and that are therefore unavailable to pay dividends or for other uses. Also termed appropriated surplus; surplus revenue; suspense reserve. earnings before interest and taxes. Corporations. A company's income calculated without deductions for interest expenses and taxes, used as a measure of the company's ability to generate cash flow from ongoing operations.- Abbr. EBIT. earnings before interest, taxes, and depreciation. Cor­ porations. A company's income without deductions for interest expenses, taxes, depreciation expenses, or amortization expenses, used as an indicator of a company's profitabilty and ability to service its debt. - Abbr. EBITDA. future earnings. See lost earnings.

gross earnings. See gross income under INCOME.

lost earnings. Wages, salary, or other income that a

person could have earned if he or she had not lost a job, suffered a disabling injury, or died.• Lost earnings are typically awarded as damages in per­ sonal-injury and wrongful-termination cases. There can be past lost earnings and future lost earnings. Both are subsets ofthis category, though legal writers sometimes loosely use future earnings as a synonym for lost earnings. Cf. LOST EARNING CAPACITY. [Cases: Damages 037.] net earnings. See net income under INCOME. normalized earnings. Corporations. Earnings adjusted for inflation and to remove elements that are extraor­ dinary, nonrecurring, nonoperating, or otherwise unusuaL ongoing earnings. See operating earnings. operating earnings. Business income calculated in violation ofgenerally accepted accounting principles by including income items and excluding various business expenses .• Many companies use operat­ ing earnings to favorably skew their price-earnings (PIE) ratios. Because the rationales for the underly­ i!1g calculations vary from company to company, and trom period to period within a company, operating earnings are almost always artificially inflated and unreliable. The term operating earnings is meaningless under generally accepted accounting principles. Also termed pro forma earnings; economic earnings;

easement

core earnings; ongoing earnings; earnings excluding special items. See PRICE-EARNINGS RATIO. pretax earnings. Net earnings before income taxes. pro forma earnings. See operating earnings. real earnings. Earnings that are adjusted for inflation so that they reflect actual purchasing power. retained earnings. A corporation's accumulated income after dividends have been distributed. - Also termed earned surplus; undistributed profit. [Cases: Corporations (;:::::> 151.J surplus earnings. The excess of corporate assets over liabilities within a given period, usu. a year. [Cases: Corporations 22.] appendant easement. See easement appurtenant. appurtenant easement. See easement appurtenant. avigational easement. An easement permitting unim­ peded aircraft flights over the servient estate. - Also termed avigation easement; aviation easement;flight easement; navigation easement. [Cases: Aviation C=:> 3.] common easement. (18c) An easement allowing the servient landowner to share in the benefit of the easement. - Also termed nonexclusive easement. [Cases: Easements C=:>38.] continuous easement. (1863) An easement that may be enjoyed without a deliberate act by the party claiming it, such as an easement for drains, sewer pipes, lateral support of a wall, or light and air. - Also termed (in Louisiana) continuous servitude. Cf. discontinuous easement. [Cases: Easements C=:>38.] conservation easement. Property. A recorded, perpet­ ual, nonpossessory interest in real property held by a

government entity or by a qualified nonprofit entity that imposes restrictions or affirmative obligations on the property's owner or lessee to retain or protect natural, scenic, or open-space values of real property, ensure its availability for agricultural, forest, recre­ ational, or open-space use, protect natural resources and habitat, maintain or enhance air or water quality, or preserve the historical, architectural, archeologi­ cal, or cultural aspects of the real property. - Also termed conservation restriction; conservation servi­ tude. determinable easement. An easement that terminates on the happening of a specific event. discontinuous easement. (1867) An easement that can be enjoyed only if the party claiming it delib­ erately acts in some way with regard to the servient estate.• Examples are a right-of-way and the right to draw water. - Also termed discontinuing easement; noncontinuous easement; nonapparent easement; (in Louisiana) discontinuous servitude. Cf. continuous easement. [Cases: Easements C=:>38.] easement appurtenant. (18lO) An easement created to benefit another tract ofland, the use of easement being incident to the ownership of that other tract. - Also termed appurtenant easement; appendant easement; pure easement; easement proper. Cf. easement in gross. [Cases: Easements C=:>3.] easement by estoppel. (1907) A court-ordered easement created from a voluntary servitude after a person, mistakenly believing the servitude to be permanent, acted in reasonable reliance on the mistaken belief. [Cases: Estoppel C=:>83(1), 87.] easement by implication. See implied easement. easement by necessity. (1865) An easement created by operation of law because the easement is indispens­ able to the reasonable use of nearby property, such as an easement connecting a parcel ofland to a road. ­ Also termed easement of necessity; necessary way. [Cases: Easements C=:> 18.] easement by prescription. See prescriptive easement. easement in gross. (1866) An easement benefiting a particular person and not a particular piece ofland. • The beneficiary need not, and usu. does not, own any land adjoining the servient estate. Cf. easement appurtenant. [Cases: Easements C=:>3.] easement ofaccess. See access easement. easement ofconvenience. An easement that increases the facility, comfort, or convenience of enjoying the dominant estate or some right connected with it. easement ofnatural support. See lateral support under SUPPORT

(4).

easement ofnecessity. See easement by necessity. easement ofpassage. See access easement. easement ofway. See access easement. easement proper. See easement appurtenant.

587

easement

equitable easement. (1869) 1. An implied easement created by equity when adjacent lands have been created out of a larger tract. _ Such an easement is usu. created to allow implied privileges to continue. [Cases: Easements 14.] secondary easement. An easement that is appurtenant to the primary or actual easement; the right to do things that are necessary to fully enjoy the easement itself. [Cases: Easements C=>38.] solar easement. (1982) An easement created to protect the dominant estate's exposure to direct sunlight. ­ A solar easement is often created to prevent the ser­ vient-estate owner from constructing any building that would cause shadows on the dominant estate, thus interfering with the use of a solar-energy system. Cf.light-and-air easement. [Cases: Easements G:J 11, 19,45.] "Solar easements ... remain difficult to describe because of the relationship of the sun to the earth. Shadow vari­ ables include land slope, terrain. solar orientation, latitude, time of day, and height of potential obstructions. Lawyers,

Easter-offerings engineers, land planners, title companies and others have expressed concern over the complexity required to write a solar easement containing highly detailed, technical information often included in these easements." Sandy F. Kraemer, Solar Law 42 (l978).

timber easement. An easement that permits the holder to cut and remove timber from another's property. ­ Also termed timber rights. [Cases: Logs and Logging

588 tion was abandoned in The Genesee Chief v. Fitzhugh, 53 U.S. (12 How.) 443 (1851). ebdomadarius (eb-dom-a-dair-ee-as), n. [Latin "weekly»] Eccles. law. An officer in a cathedral church who supervises the regular performance of divine service and prescribes the duties of choir members. EBIT. abbr. See earnings before interest and taxes under EARNINGS.

Easter-offerings. Eccles. law. Small sums of money paid as personal tithes to the parochial clergy by the parish­ ioners at Easter. - Under the Recovery of Small Tithes Act (1695), Easter-offerings were recoverable before justices of the peace. St. 7 & 8 Will. 3, ch. 6. Also termed Easter-dues. Easter sittings. English law. A term of court beginning on April 15 of each year and usu. ending on May 8, but sometimes extended to May 13. - This was known until 1875 as Easter term. Cf. HILARY SITTINGS; MICHAELMAS SITTINGS; TRINITY SITTINGS.

East Greenwich (eest gren-ich). Rist. The name of a royal manor in the county of Kent, England. _ Historically, this manor was mentioned in royal grants or patents as descriptive of the tenure of free socage. East India Company. Rist. The company that was orig­ inally established to pursue exclusive trade between England and India, and that later became more active in political affairs than in commerce. _ In 1858, the Government of India Act transferred governance over the company's territories to the Crown. The company was dissolved in 1874. St. 21 & 22 Vict., ch. 106. EAT. abbr. Earnings after taxes. eat inde sine die (ee-at in-dee sl-nee dI-ee) [Latin] Let him go thence without day. _ These words were used on a defendant's acquittal, or when a prisoner was to be discharged, to signify that the matter be dismissed without any further judicial proceedings. See GO HENCE WITHOUT DAY.

eaves-drip. 1. 'The dripping of water from the eaves of a house onto adjacent land. 2. An easement permit­ ting the holder to allow water to drip onto the servient estate. See DRIP RIGHTS; STILLICIDIUM. [Cases: \-Vaters and Water Courses ~-:> 121.] eavesdropping. (I7c) The act of secretly listening to the private conversation of others without their consent. Cf. BUGGING; WIRETAPPING. [Cases: Telecommunica­ 1435.] tions EB. abbr. Bt/REAU OF ECONOMIC AND BUSINESS AFFAIRS. ebba et fluctus (eb-a et 113k-tas), n. [Latin "ebb and flow"] Hist. The ebb and flow of tide; ebb and flood. _ The time of one ebb and flood, plus an additional 40 days, was anciently granted to a person who was excused from court for being beyond seas. See EBB A ND FLOW; ESSOIN; BEYOND SEAS.

ebb and flow. (bef. 12c) The coming and going of the tides. - This expression was formerly used to denote the limits of admiralty jurisdiction. The tidewater limita­

EBITDA. abbr. See EARNINGS. ebriety, n. Rare. A state or habit ofintoxication; inebria­ tion. EC. abbr. 1. ETHICAL CONSIDERATION. 2. European Community. See EUROPEAN UNION. ecclesia (i-klee-z[hlee-a), n. [Latin fro Greek ekklesia "assembly»ll. A place of religious worship. 2. A Chris­ tian assembly; a church. ecclesiarch (i-klee-zee-ahrk), n. The ruler of a church. ecclesiastic (i-klee-zee-as-tik), n. (17c) A clergyman: a priest; one consecrated to the service of the church. [Cases: Religious Societies C=27.] ecclesiastical (i-klee-zee-as-ti-bl), adj. (I5c) Of or relating to the church, esp. as an institution. Also termed ecclesiastic. [Cases: Religious Societies ecclesiastical authorities. The church's hierarchy, answerable to the Crown, but set apart from the rest of the citizens, responsible for superintending public worship and other religiOUS ceremonies and for admin­ istering spiritual counsel and instruction. _ In England, the several levels of the clergy are (1) archbishops and bishops, (2) deans and chapters, (3) archdeacons, (4) rural deans, (5) parsons (under whom are included appropriators) and vicars, and (6) curates. Church­ wardens, sidesmen, parish clerks, and sextons are also considered types of ecclesiastical authorities because their duties are connected with the church. Cf. ecclesi­ astical court under COURT. ecclesiastical commissioners. Rist. English law. A group of people empowered to suggest measures to improve the established church's efficiency, to be ratified by orders in counciL - This body of commissioners, estab­ lished in 1836 by the Ecclesiastical Commissioners Act (St. 6 & 7 WilL 4, ch. 77), has been dissolved. Its func­ tions, rights, and property are now vested in the church commissioners. ecclesiastical controversy. A civil claim based on the decision of a religiOUS association's tribunal against one or more members of the association. - If the decision relates solely to matters within the church, such as church governance or questions of faith, secular courts have no jurisdiction to hear what is effectively an appeal. See Watson v. Jones, 80 U.S. 679, 728-29 (1871). [Cases: Religious Societies C= 14,24.] ecclesiastical corporation. See CORPORATION. ecclesiastical court. See COURT.

589

ecclesiastical jurisdiction. Jurisdiction over ecclesiasti­ cal cases and controversies, such as that exercised by ecclesiastical courts. ecclesiastical law. 1. The body oflaw derived largely from canon and civil law and administered by the ecclesiasti­ cal courts. [Cases: Religious Societies {~5.]2. The law governing the doctrine and discipline of a particular church; esp., Anglican canon law. - Also termed jus ecclesiasticum; law spiritual. Cf. CANON LAW. ecclesiastical matter. A matter that concerns church doctrine, creed, or form of worship, or the adoption and enforcement, within a religious association, oflaws and regulations to govern the membership, including the power to exclude from such an association those deemed unworthy of membership. [Cases: Religious Societies 28.] ecclesiastical sentence. The judgment in an ecclesiasti­ cal case. ecclesiastical things. Property (such as buildings and cemeteries) given to a church to support the poor or for any other pious use. [Cases: Religious Societies 15.]

ecclesiastical-tithe rentcharge. See RENTCHARGE. ecdicus (ek-d;.l-k;.ls), n. [Greek ekdikos "legal represen­ tative"] Hist. "The attorney, proctor, or advocate of an organization.• A church's attorney, for example, was known as an episcoporum ecdicus. e-check. See CHECK. echevin (esh-;.l-van), n. French law. A municipal officer corresponding with the position of alderman or burgess, and sometimes having civil jurisdiction to hear and determine certain minor cases. echouement (ay-shoo-mawn), n. In French marine law, stranding. See STRANDING. ECJ. abbr. European Court ofJustice. ECOA. abbr. EQUAL CREDIT OPPORTUNITY ACT. ecological terrorism. See ecoterrorism under TERROR­ ISM. ecology of crime. See environmental criminology under CRIMINOLOGY. e-commerce. (1993) The practice of buying and selling goods and services through online consumer services on the Internet .• The e, a shortened form of electronic, has become a popular prefix for other terms associated with electronic transactions. See ELECTRONIC TRANS­ ACTION. E-Commerce Directive. See DIRECTIVE ON CERTAIN ASPECTS OF ELECTRONIC COMMERCE IN THE INTERNAL MARKET. e-commerce insurance. See INSURANCE. econometrics (ee-kon-;.l-me-triks). The branch of eco­ nomics that expresses economic theory in mathe­ matical terms and that seeks to verify theory through statistical methods. economic coercion. See COERCION (2).

economic loss

economic crime. See CRIME.

economic-cure trade embargo. See EMBARGO (3).

economic depreciation. See DEPRECIATION.

Economic Development Administration. A unit in the

U.S. Department of Commerce responsible for helping to develop local economies and distressed areas by making grants for public works and development facili­ ties that are deSigned to reduce persistent unemploy­ ment in economically distressed areas. _ The agency was created in 1965 by the Public Works and Economic Development Act. Abbr. EDA. economic discrimination. (1919) Any form of discrimi­ nation within the field of commerce, such as boycot­ ting a particular product or price-fixing. See BOYCOTT; PRICE DISCRIMINATION; PRICE-FIXING. economic duress. See DURESS. economic earnings. See operating earnings under EARNINGS. Economic Espionage Act. Trade secrets. A 1996 federal statute criminalizing the misappropriation of trade secrets and providing criminal penalties for industrial espionage by or for a foreign entity.• The Act also applies to one who knowingly receives, purchases, or possesses stolen trade-secret information. 18 USCA §§ 1831-1839. Sometimes termed Industrial EspiO­ nage Act. economic frustration. See commercial frustration under FRUSTRATION. economic goodwill. See GOODWILL. economic-harm rule. See ECONOMIC-LOSS RULE. economic indicator. (1903) A statistical measure (such as housing starts) used to describe the state of the economy or to predict its direction. See INDICATOR. lagging economic indicator. An economic indicator (such as new-home sales) that tends to respond to the direction of the economy. - Often shortened to lagging indicator. leading economic indicator. An economic indica­ tor (such as interest rates) that tends to predict the future direction of the economy. Often shortened to leading indicator. economic life. The duration of an asset's profitability, usu. shorter than its physical life. economic loss. (1905) A monetary loss such as lost wages or lost profits .• The term usu. refers to a type of damages recoverable in a lawsuit. For example, in a products-liability suit, economic loss includes the cost of repair or replacement of defective property, as well as commercial loss for the property's inadequate value and consequent loss ofprofits or use. [Cases: Damages .• A statute, order, or contract is often said to be effective beginning (and perhaps ending) at a designated time. 2. Performing within the range of normal and expected standards <effective counsel>. 3. Productive; achieving a result <effective cause>. effective assignment. See ASSIGNMENT (2). effective assistance of counsel. See ASSISTANCE OF COUNSEl..

effective cause. See immediate cause under CAUSE (1). effective date. (1909) The date on which a statute, contract, insurance policy, or other such instrument becomes enforceable or otherwise takes effect.• This date sometimes differs from the date on which the instrument was enacted or Signed. effective filing date. See DATE.

effective possession. See constructive possession under POSSESSION.

effective rate. See INTEREST RATE. effective tax rate. See average tax rate under TAX RATE. effective vote. See VOTE (1). effects, n. pl. (17c) Movable property; goods . personal effects. (1818) Items of a personal character; esp., personal property owned by a decedent at the time of death. [Cases: Descent and Distribution 76; Executors and Administrators C:::o43.] effects doctrine. See AFFECTS DOCTRINE. effeirs (e-feerz), adv. Scots law. As appropriate; correctly. • The term ordinarily appears in the phrase as affeirs. effets (e-fe or e-fets), n. pl. [French] 1. Bills of exchange. 2. Goods; movables; chattels. effets mobiliers (moh-beel-yay or moh-ba-Ieerz). Funds; stocks. efficient adequate cause. See proximate cause under CAUSE

(1).

efficient breach. See BREACH OF CONTRACT. efficient-breach theory. (1980) Contracts. The view that a party should be allowed to breach a contract and pay damages, if doing so would be more economically efficient than performing under the contract.• This relatively modern theory stems from the law-and-eco­ nomics movement. See BREACH OF CONTRACT. [Cases: Contracts efficient cause. See proximate cause under CAUSE (1). efficient intervening cause. See intervening cause under CAUSE

(1).

efficient proximate cause. See proximate cause under CAUSE (1).

effigy (ef-a-jee), n. (16c) A figure, image, or other repre­ sentation; esp., a crude representation ofsomeone who is disliked .• Effigies are sometimes hanged, burned, or otherwise abused to express public disapproval or ridicule. effluent (ef-Ioo-ant), n. (1859) Liquid waste that is dis­ charged into a river, lake, or other body ofwater. [Cases: Environmental Law (;=··182.J effluxion of time (i-f1uk-shan). (17c) The expiration of a lease term resulting from the passage of time rather than from a specific action or event. - Also termed efflux of time. [Cases: Landlord and Tenant efforcialiter (e-for-shee-ay-la-tClr), adv. [Latin] Hist. Forcibly.• This adverb referred primarily to military force. effraction (a-frak-shCln). (l9c) Archaic. A breach made by the use of force; BURGLARY (1). effractor {i-frak-tar}. [Latin] Hist. One who breaks through; a burglar. PI. effractors, effractores (ef-rak­ tor-eez). See HOUSEBREAKING.

593

effusio sanguinis (e-fyoo-zhee-oh sang-gwi-nis). [Latin] Hist. 1. The shedding of blood. 2. The fine or

eisne

transportation, and possession ofalcoholic beverages in the United States. See PROHIBITION (3). [Cases: Intoxi­ cating Liquors (;::::> 17.]

penalty imposed for the shedding of blood.• The Crown granted to many lords of manors the power to Eighth Amendment. 1he constitutional amendment, collect this fine. - Also termed bloodwite; bloodwit. ratified as part of the Bill of Rights in 1791, prohibiting Cf. WERGILD. excessive bai\, excessive fines, and cruel and unusual EFT. abbr. Electronic funds transfer. See FUNDS punishment. TRANSFER. eight-hour law. A law that sets eight hours as the e.g. abbr. [Latin exempli gratia] (17c) For example . a higher pay rate for work beyond eight hours.• One Cf.LE. example is the federal Fair Labor Standards Act. See egg donation. Family law. A type of assisted-repro­ WAGE-AND-HOUR LAW. ductive therapy in which eggs are removed from one 8-K. An SEC form that a registered corporation must woman and transplanted into the uterus of another file if a material event affecting its financial condition woman who carries and delivers the child.• In egg occurs between the due dates for regular SEC filings. donation, the egg is usu. fertilized in vitro. See IN VITRO Also termed Form 8-K. Cf. lO-K. FERTILIZATION; ASSISTED-REPRODUCTIVE TECHNOL­ OGY. [Cases: Child Custody 0:>274.5; Child Support 83(b) election. Tax. An employee's choice to treat an (;::::>63; Children Out-of-Wedlock (;::::> 15; Parent and employer's grant of unvested property, usu. stock, as Child being vested immediately and as currently taxable on eggshell-skull rule. (1961) Torts. The principle that a the amount the employer paid for it. • The alternative defendant is liable for a plaintiff's unforeseeable and is for the employee to wait until the property vests and uncommon reactions to the defendant's negligent or pay taxes on its value at that time. An 83(b) election intentional act. • Under this rule, for example, if one is typically used when the property is expected to person negligently scrapes another who turns out to have a dramatic increase in value before the employ­ be a hemophiliac, the negligent defendant is liable for ee's interest in it vests. IRC (26 USCA) § 83(b).[Cases: the full extent of the plaintiff's injuries even though the Internal Revenue (;::::>3602.] harm to another plaintiff would have been minor. ­ eigne (ayn), adj. [Law French] (15c) Hist. 1. (Of a child) Also termed eggshell-plaintiffrule; thin-skull rule; spe­ eldest; first-born. 2. (Of title) superior; prior. 3. (Of an cial-sensitivity rule; old-soldier's rule. [Cases: Damages estate) entailed. See ENTAILED.• This adjective tradi­ (;:::::33.] tionally follows the noun it modifies in sense 1 but precedes the noun in senses 2 and 3 <eigne phrase was used in describing the forms of old deeds. title>. - Also spelled eigl1; eygne; eisne; aisne. Also egrediens et exeuns (e-gree-dee-enz et ek-see-;mz). [Latin termed (in Law Latin) einetius. "stepping out and exiting"] Common-law pleading. bastard eigne. Hist. An illegitimate son whose parents Going forth and issuing out of (land). afterward marry and have a second son (mulier egregious (i-gree-j2914,2915.] the peace; a person charged with maintaining order. ­ 1891 Copyright Amendment Act. See CHACE ACT. Also spelled (in Latin) irenarcha. Eighteenth Amendment. The constitutional amend­ ment ratified in 1919 and repealed by the 21st Amend­ E1S. abbr. ENVIRONMENTAL-IMPACT STATEMENT.

ment in 1933 - that prohibited the manufacture, sale, eisne (ayn), adj. See EIGNE.

eisnetia

eisnetia (Iz-nee-shee-d), n. [Law Latin] The share of the oldest son; the portion of an estate acquired by primo­ geniture. - Also spelled einetia. Cf. ESNECY. either-or order. See alternative order under ORDER (8). eiusdem generis. See EJUSDEM GENERIS. eject, vb. (I5c) l. To cast or throw out. 2. To oust or dis­ possess; to put or turn out of possession. 3. To expel or thrust out forcibly (e.g., disorderly patrons). - ejector, vb. ejection, n. (I6c) l. An expulsion by action oflaw or by actual or threatened physical force. See OUSTER. 2. EJECTMENT (2). ejectione custodiae. See DE EJECTIONE CUSTODIAE. ejectione firmae. See DE EjECTIONE FIRMAE. ejectment. (I6c) l. The ejection of an owner or occupier from property. 2. A legal action by which a person wrongfully ejected from property seeks to recover pos­ session, damages, and costs. 3. The writ by which such an action is begun.• The essential allegations in an action for ejectment are that (1) the plaintiff has title to the land, (2) the plaintiff has been wrongfully dis­ possessed or ousted, and (3) the plaintiff has suffered damages. - Also termed action of ejectment; action for the recovery of land; ejection. See FORCIBLE ENTRY AND DETAINER. Cf. EVICTION; OUSTER. [Cases: Eject­ mentC=>l.] "The evolution of the action of ejectment from its primitive form as a mere action of trespass, enabling a lessee of lands to recover damages when ousted of his possession, through a series of most ingenious fictions, which were afterwards added to enable him to recover possession as well, until its final establishment as the proper method of trying all disputed titles to real property, presents to the student of legal science one of the most interesting studies that the history of the law affords. Few remedies have passed through so many changes of form, both in pleading and practice, and yet retained the same distinctive character that marked their origin." George W. Warvelle, A

Treatise on the Principles and Practice of the Action of Eject· ment § 4, at 4-5 (1905). "Any person wrongfully dispossessed of land may sue for the specific restitution of it in an action of ejectment. Originally this action was a special variety of trespass and available only to leaseholders. But in time and by the aid of the most elaborate fictions it came to be used by freehold· ers also. All these fictions have now been swept away; in theory even the term ejectment has been replaced by the term action for the recovery of land. The older term is, however, replaced in practice." R.F.v. Heuston, Salmond on the Law of Torts 41 (17th ed. 1977).

equitable ejectment. (I820) A proceeding brought to enforce specific performance of a contract for the sale ofland and for other purposes.• Though in the form of an ejectment action, this proceeding is in reality a substitute for a bill in equity. [Cases: Ejectment C=> 156.] justice ejectment. (1900) A statutory proceeding to evict a tenant who has held over after termination of the lease or breach of its conditions. ejectment bill. (I8c) Equity practice. A bill in equity brought to recover real property and an accounting of

594

rents and profits, without setting out a distinct ground of equity jurisdiction (and thus demurrable). [Cases: Ejectment C=>62.] ejectment de garde. See DE EjECTIONE CUSTODIAE. ejector, n. (I7c) One who ejects, puts out, or dispossesses another. casual ejector. The nominal defendant in an ejectment action who, under a legal fiction, is supposed to come casually or by accident upon the premises and to eject the lawful possessor. [Cases: Ejectment C=>46.] ejectum (i-jek-tdm), n. Something that is cast out, esp. by the sea. See FLOTSAM. Cf. JETSAM; LAGAN (1); WAVESON. ejectus (ee-jek-tds), n. [Latin] Hist. A whoremonger; a pimp. ejercitoria (ay-hair-see-tor-ee-d), n. [Spanish] Spanish law. An action lying against a shipowner upon the con­ tracts or obligations made by the master for repairs or supplies.• This action corresponds to the actio exercitoria of Roman law. See action exersitoria under ACTIO. ejido (ay-hee-doh), n. [fro Latin exitus "a going out"] (I9c) Spanish law. Common land or pasture; esp., land used in common by inhabitants of a city, pueblo, or town for such things as pasture, wood, and threshing-ground; commons. - Also termed exidos; exedos. See COMMON (2). ejuration (ej-d-ray-shdn). The renouncing or resigning of one's place. ejusdem generis (ee-jds-ddm jen-d-ris also ee-joos- or ee-yoos-). [Latin "of the same kind or class"] (I7c) l. A canon of construction holding that when a general word or phrase follows a list of specifics, the general word or phrase will be interpreted to include only items of the same class as those listed .• For example, in the phrase horses, cattle, sheep, pigs, goats, or any other farm animals, the general language or any other farm animals - despite its seeming breadth - would probably be held to include only four-legged, hoofed mammals typically found on farms, and thus would exclude chickens. - Also termed Lord Tenterden's rule. Cf. EXPRESSIO UNIUS EST EXCLUSIO ALTERIUS; NOSCITUR A SOCIIS; RULE OF RANK. [Cases: Contracts 156; Statutes C=> 194.] 2. Loosely, NOSCITUR A SOCIIS. ejusdem negotii (ee-jds-ddffi ni-goh-shee-I). [Latin] Hist. Part of the same transaction. elaborare (i-Iab-d-rair-ee), vb. [Latin] Hist. To gain, acquire, or purchase, as by labor and industry. elaboratus (i-Iab-d-ray-tds), n. [Latin] Hist. Property acquired by labor. Elastic Clause. See NECESSARY AND PROPER CLAUSE. elbow clerk. See CLERK (5). elder abuse. See abuse of the elderly under ABUSE. Elder Brethren. A distinguished body of men elected as masters ofTrinity House, an institution incorporated in

595

election board

the reign of Henry VIII and charged with many duties in marine affairs, such as superintending lighthouses. • The full title of the corporation is Elder Brethren of the Holy and Undivided Trinity. elder law. (I986) The field oflaw dealing with the elderly, including such issues as estate planning, retirement benefits, social security, age discrimination, and healthcare. elder title. A title of earlier date but one that becomes operative simultaneously with, and prevails over, a title of newer origin. elected domicile. See DOMICILE. electee. 1. A person chosen or elected. 2. A person to whom the law gives a choice about status. electing small-business trust. See TRUST (3). electio est creditoris (i-Iek-shee-oh est kred-i-tor-is). [Law Latin] Scots law. The creditor has the election or choice.• The phrase appeared in reference to the credi­ tor's right to apply payments to one debt or another. Cf. ELECTIO EST DEBITORIS.

"Electio est creditoris .... This has reference to a creditor's right to apply indefinite payments, made by his debtor, to that debt or obligation which is least secured; but where the debtor at the time of payment appropriates the sum paid, towards extinction of a particular debt, it must be so applied." John Trayner, Trayner's Latin Maxims 184 (4th ed.1894).

electio est debitoris (i-lek-shee-oh est deb-i-tor-is). [Law Latin] Scots law. The debtor has the election or choice. • If the law provided alternative methods of fulfilling an obligation, the debtor could choose the method of payment. Cf. ELECTIO EST CREDITORIS. election, n. (13c) 1. The exercise of a choice; esp., the act ofchoosing from several possible rights or remedies in a way that precludes the use ofother rights or remedies 3587.] 457 plan. A type of deferred-compensation plan for employees of state and local governments and tax­ exempt organizations that operates much like a 401(k) plan, but (except for governmental plans) is unfunded. IRC (26 USCA) § 457. [Cases: Labor and Employment ?417.] governmental plan. Under ERISA, an employee benefit plan established or maintained for its employees by the federal government, state or local governments, or their agencies or instrumentalities. 29 USC A § 1002(32).• If a collective-bargaining agreement between a labor union and a governmental entity includes a benefit plan, that plan may be a governmen­ tal plan if it is funded by and covers only employees of the governmental entity. - Also termed governmen­ tal employee benefit plan; government plan. individual account plan. See defined-contribution plan. Keogh plan. See KEOGH PLAN. medical-expense reimbursement plan. An arrange­ ment provided by an employer to reimburse employ­ ees for medical expenses, including vision and dental expenses, that are not covered under a medical plan available to all employees .• Some plans may also be used to substitute for health insurance, or to pay for medical expenses in excess ofinsurance-policy limits. IRC (26 USCA) 105. - Abbr. MERP. [Cases: Labor and Employment money-purchase plan. A defined-contribution plan that provides for mandatory employer contributions without regard to employer profits .• Contributions are frequently stated as a percentage ofemployee com­ pensation. [Cases: Labor and Employment C:~")423.]

employee benefit plan

nonqualified deferred-compensation plan. An unfunded compensation arrangement, frequently offered to executives, that defers compensation and the recognition of its accompanying taxable income to a later date .• It is termed "nonqualified" because it does not qualify for favorable tax treatment under IRC (26 USCA) § 40l(a). The plan avoids the restric­ tions on qualified plans, esp. the limits on contribu­ tions and benefits and rules against discrimination in favor of highly compensated employees. Abbr. NQDC. - Also termed nonqualified executive-com­ pensation plan; unfunded deferred-compensation plan. [Cases: Internal Revenue C:-:: 3596.] "Generally, a nonqualified deferred compensation plan is an agreement or promise by an employer to certain indio viduals to pay compensation to those individuals at some future date. A nonqualified plan may also be a series of deferred compensation agreements between an employer and certain individuals that are considered to be a plan of benefits. These types of plans do not qualify for the special tax treatment afforded to plans that meet the qualifica· tion requirements of Section 401(a) of the Internal Revenue Code ...." BruceJ. McNeil, Nonqualified Deferred Compen­ sation Plans 1 (1994).

pension plan. See PENSION PLAN. profit-sharing plan. See PROFIT-SHARI~G PLAN. qualified plan. 1. See qualified pension plan under PENSION PLAN. 2. See qualified profit-sharing plan under PROFIT-SHARING PLAK. survivor-income benefit plan. An agreement between an employer and an employee whereby the employer agrees that ifthe employee dies before retirement, the employer will pay a specified or determinable amount to the employee's spouse or other designated benefi­ ciary.• Typically, a formula is used, so the benefit amount may be a multiple of the employee's salary (e.g., two times the average base pay in the three years preceding death) or based on the length of employ­ ment. - Abbr. SIB. Also written survivors-income benefit plan. Also termed death-benefit-only plan (abbr. DBO). [Cases: Labor and Employment C:> 428.] retirement plan. An employee benefit plan - such as a pension plan or Keogh plan - provided by an employer (or a self-employed person) for an employ­ ee's retirement. [Cases: Labor and Employment? 420.] SIMPLE plan. An arrangement under which an indi­ vidual retirement account or annuity is established for each eligible employee and funded by elective pretax employee contributions, much as with a 401(k) plan, and certain matching or minimum employer con­ tributions.• The plan can be attractive to employers because it is easier to administer than a 401(k) plan. The name is a loose acronym for "Savings Incentive Match Plan for Employees." IRC (26 USCA) § 408(p). [Cases: Labor and Employment (;:::>420.] simplified employee pension plan. An arrangement under which an individual retirement account or annuity is established for each eligible employee and

employee givebacks

funded by discretionary employer contributions. IRC (26 USCA) § 408(k).• A simplified employee pension plan operates much like a 401(k) plan, in that the employee contributions can be made by deferred compensation and the employer can contribute. But the plan is attractive to small employers because it is much easier to administer than a 401(k) plan and gives the employer complete discretion on whether to make an annual contribution. IRC (26 USCA) § 408(k). - Abbr. SEP; SEP-IRA. [Cases: Labor and Employment (>420.] split-funded plan. A retirement plan combining elements of both life-insurance and investment plans. target benefit plan. A money-purchase plan that sets a "target" benefit for each participant and mandates employer contributions determined by an actuarial cost method designed to fund the target benefit. unfunded deferred-compensation plan. See nonquali­ fied deferred-compensation plan. welfare plan. Under ERISA, any plan, fund, or program established or maintained by an employer or an employee organization for the purpose of providing to participants or their beneficiaries any number of potential benefits: medical, surgical, or hospital care or benefits; benefits in the event of sickness, accident, disability, death or unemployment; vacation benefits; apprenticeship or other training programs; daycare centers; scholarship funds; prepaid legal services; or holiday and severance benefits. 29 USC A § 1002(1). [Cases: Labor and Employment employee givebacks. See CONCESSION BARGAINING. employee-liability exclusion. See EXCLUSION (3). employee pro hac vice. See borrowed employee under EMPLOYEE.

Employee Retirement Income Security Act. A federal statute that regulates private pension plans and employee benefit plans and that established the Pension Benefit Guaranty Corporation. 29 USCA §§ 1001 et seq. - Abbr. ERISA. [Cases: Labor and Employment (>401.J "ERISA was adopted in 1974 in response to highly publi· cized instances of fraud and mismanagement in employee pension funds, which had resulted in thousands of workers losing retirement benefits accumulated over a lifetime of work, ERISA was intended primarily as an instrument for regulating pensions, as its title suggests, and most of its substantive provisions address protection of retirement benefits. ERISA also, however, applies to employee welfare benefit plans, and thus covers employer provided health insurance, the dominant vehicle for private finance of health care in the United States." Barry R. Furrow et aI., Health Law § 2-9, at 48 (2d ed. 2000).

employee stock option. See STOCK OPTION (2). employee-stock-ownership plan. See EMPLOYEE BENEFIT PLAN.

Employee's Withholding Allowance Certificate. See W-4 FORM.

604

employer. (16c) A person who controls and directs a worker under an express or implied contract ofhire and C[ PRINCIPAl. who pays the worker's salary or (1). [Cases: Labor and Employment equal-opportunity employer. An employer who agrees not to discriminate against any job appli­ cant or employee on the basis of race, color, religion, sex, natural origin, age, or disability. Abbr. EOE. Civil Rights (;:::; 110.] general employer. An employer who transfers an employee to another employer for a limited period. See borrowed employee under EMPLOYEE. special employer. An employer who has borrowed an employee for a limited period and has temporary responsibility for and control over the employee's work. statutory employer. Workers' compensation. One who employs a statutory employee. See statutory employee under EMPLOYEE. [Cases: Workers' Compensation employer-employee relationship. See RELATIONSHIP. employer-identification number. See TAX-IDENTIFICA­ TION NUMBER.

employers' liability. See WORKERS' COMPENSATION. employers'-liability insurance. See INSURANCE. employment. (15c) 1. The relationship between master and servant. See MASTER AND SERVANT. 2. The act of employing. 3. The state of being employed. 4. Work for which one has been hired and is being paid by an

employer.

casual employment. Work that is occasional, irregu­

lar, or for a short time - often associated with day labor. employment at will. Employment that is usu. under­ taken without a contract and that may be terminated at any time, by either the employer or the employee, without cause. Also termed at-will employment; hiring at will. [Cases: Labor and Employment 40.J "Surprisingly, the employment at will doctrine is not an ancient one. On the contrary, it dates only from the period in the mid-nineteenth century that saw the transforma­ tion of the employment relation from one of status to one of contract. The relentless logic of the contract approach dictated the rule that the employee had only such rights as were expressly agreed to in his contract of employ­ ment no more and no less. This meant that there was no implication that an indefinite hiring would last for a year or any other presumed period, since ifthe parties had wanted a particular term they would have expressly agreed to it." 1 Lex K. Larson, Unjust Dismissal § 1.01, at 1·3 (1992). "The doctrine of employment at will prescribed that an employee without a contract for a fixed term could be hired or fired for any reason or no reason at all.. ,[The] rule provided that employees categorized as 'at will' had no legal interest in continuing job security. Whereas early American masters had some responsibility to the public as well as to their servants when they turned dependent servants out on the world, under [thisl formulation, masters could simply fire employees who had no contracts." Mark A. Rothstein et aI., Employment Law § lA, at 9-10 (1994).

605

gainful employment. Work that a person can pursue and perform for money. hazardous employment. High -risk work; work involv­ ing extra peril. _ In the context of workers' compen­ sation, hazardous employment often requires an employer to carry workers'-compensation coverage or its equivalent, regardless ofthe number of employ­ ees. joint employment. A job in which the essential terms and conditions of the employee's work are controlled by two or more entities, as when a company hires a contractor to perform a task and retains control over the contractor's employees in matters such as hiring, firing, diScipline, conditions of employment, prom­ ulgation of work rules. assignment of day-to-day job duties, and issuance of operating instructions. permanent employment. Work that, under a contract, is to continue indefinitely until either party wishes to terminate it for some legitimate reason. seasonal employment. An occupation possible only during limited parts of the year, such as a summer­ camp counselor, a baseball-park vendor, or a shop­ ping-mall Santa. temporary employment. Work for a specific need or fixed duration, usu. agreed upon beforehand. employment agency. (l9c) A business that procures, for a fee, employment for others and employees for employ­ ers. - Whether the employer or the employee pays the fee depends on the terms of the agreement. See FINDER (1). [Cases: Labor and Employment C=:::935.] Employment and Training Administration. A unit in the U.S. Department of Labor responsible for devel­ oping plans for training dislocated and unemployed workers, including young people and those who are disabled; and for interpreting federal workforce-secu­ rity laws as they apply to the states. employment contract. See CONTRACT. employment-practices-liability insurance. See INSUR­ ANCE. employment-related-practices exclusion. See EXCLU­ SION (3). Employment Standards Administration. A unit in the U.S. Department of Labor responsible for enforCing various laws and administering programs pertaining to minimum-wage and overtime standards, registration of farm-labor contractors, wage rates to be paid and the nondiscrimination and affirmative-action programs to be followed by government contractors and subcon­ tractors, workers'-compensation programs for federal and certain private employers, financial integrity and the internal organizational practices oflabor unions, and certification of employee protection for federally sponsored transportation programs. _ The Administra­ tion operates through four divisions that have regional offices or administrators in various cities: the Office of Federal Contract Compliance Programs, the Wage and Hour Division, the Office of Labor-Management

emptor familiae

i

Standards, and the Office of Workers' Compensation Programs. Abbr. ESA. emporium (em-por-ee-am), n. (l6c) 1. A place for whole­ sale trade in commodities carried bv sea. - The term is sometimes applied to a seaport t;wn, but properly signifies only a particular place in such a town. 2. An important marketplace. 3. A large retail store that sells a wide variety of goods. empresario (em-pre-sahr-ee-oh), n. [Spanish]l. Spanish law. A businessperson; one who invests in or manages a business; esp., a land developer. 2. Rist. A person receiving extensive land grants as consideration for bringing people into Mexico (esp. into what would become Texas) and settling them on the land for the purpose of increasing the population, developing the country's resources, and controlling the aboriginal peoples. emptio (emp-shee-oh), n. [Latin "purchase"] Roman & civil law. The act ofbuying; a purchase. Also spelled emtio. PI. emptiones. emptio bonorum (ba-nor-am). [Latin "purchase of goods"] A type of forced assignment for the benefit of creditors, involving a public sale of an insolvent debtor's estate whereby the purchaser succeeded to all the debtor's property, rights, and claims, and became responsible for the debtor's debts and liabilities to an extent fixed before the transfer. emptio etvenditio (et ven-dish-ee-oh). [Latin "purchase and sale"] A contract of sale. - The double name reflects that both the buyer and seller had duties and rights in the transaction. In Roman law, agreement on the thing to be sold and its price were essential. The buyer could enforce the contract by actio empti, and the seller could enforce bv actio venditio - Also termed emptio venditio. See VENDITIO. emptio rei facta a pluribus ementibus (emp-shee-oh ree-I fak-ti'l ay plnur-a-b99.] enablement by deposit. See DEPOSIT (6). enablement requirement. Patents. The rule that the specification of a patent application must describe the invention so that a person with ordinary skill in the art could make and use the invention without undue experimentation. - A specification that meets this requirement is referred to as enabling. Cf. ENABLING SOURCE. [Cases: Patents enabling act. See enabling statute under STATUTE. enabling clause. See CLAUSE. enabling disclosure. See DESCRIPTION (5). enabling power. See POWER OF APPOINTMENT. enabling source. Patents. A document that defeats the patentability of an invention because the information provided made it possible before the patent applica­ tion was filed - for a person skilled in the art to make the invention. Cf. ENABLEMENT REQUIREMENT. enabling statute. 1. See STATUTE. 2. Hist. (cap.) The Lease Act (1540), by which tenants in tail, husbands seised in right of their wives, and others were empowered to make leases for their lives or for 21 years. St. 32 Hen. 8, ch. 28. enact, vb. (15c) l. To make into law by authoritative act; to pass . 2. (Of a statute) to provide . - enactor, n. enacted law. See LAW. enacting clause. See CLAUSE. enacting words. The statutory phraSing denoting that an act is taking effect as law. -The most common enacting

606

words are Be it enacted that . ... [Cases: Statutes 40.J

enactive (en-ak-tiv), adj. 07c) 1. Having the power to estab­ lish a new law; capable ofenacting. 2. ENACTORY (1). enactment, n. (18c) 1. The action or process of making into law <enactment of a legislative bill>. 2. A statute . enactor (en-ak-tClr), n. A person or body that enacts or decrees; esp., one that establishes a new law. enactory, (i-nak-td-ree), adj. (19c) 1. Of, relating to, constituting, or by an enactment; esp., instituting a new right or duty by means of enactment. 2. ENACTIVE (1). enajenacion (e-nah-hen-ah-syohn), n. [Spanish) Spanish law. Alienation; the transfer of land. en arere (en . Formerly also spelled incroachment. See TRESPASS. [Cases: Trespass (,~12.]

encumbrance, n. (16c) A claim or liabilitythatis attached to property or some other right and that may lessen its value, such as a lien or mortgage; any property right that is not an ownership interest. _ An encumbrance cannot defeat the transfer ofpossession, but it remains after the property or right is transferred. Also spelled incumbrance. [Cases: Mortgages (;::;; 1; Secured Trans­ actions ~) LJ - encumber, vb. "Encumbrances are not confined to the law of property, but pertain to the law of obligations also. Choses in action may be mortgaged, settled in trust, or otherwise made the subject-matter of jura in re aliena, no less than land and chattels." John Salmond, Jurisprudence 435-36 n.(k) (Glanville L. Williams ed .. 10th ed. 1947). '''Encumbrance' means a right, other than an ownership interest, in real property. The term includes a mortgage or other lien on real property." UCC § 9-102(a)(32).

mesne encumbrance (meen). An intermediate encum­ brance; an encumbrance that first occurred both earlier and later than other encumbrances. encumbrancer. (1858) One haVing a legal claim, such as a lien or mortgage, against property. end, n. 1. An object, goal, or purpose. 2. A result; a ter­ mination point. endangered species. See SPECIES (1). endangering the welfare of a child. See CHILD ENDAN­ GERMENT.

endangerment, n. (17c) The act or an instance of putting someone or something in danger; exposure to peril or harm. See CHILD ENDANGERMENT; RECKLESS ENDAN­ GERMENT. endanger, vb. endeavor, n. (ISc) A systematic or continuous effort to attain some goal; any effort or assay to accomplish some goal or purpose. endeavor, vb. (ISc) To exert physical or intellectual strength toward the attainment of an object or goal. en declaration de simulation (on dek-Iah-rah-syawn d65.] English rule. The requirement that a lOSing litigant must pay the winner's costs and attorney's fees. - Also termed loser-pays rule. Cf. AMERICAN RULE (1). [Cases: Costs C-::> 194.14.] Englishry, presentment of. PRESENTMENT OF ENG­ LISHRY.

engros (on groh). [French] (18c) Total; by wholesale; IN GROSS. - Also spelled en grosse. Cf. EN BLOC. engross, vb. (15c) 1. Hist. To handwrite (a document, esp. a deed) in a style characterized by large letters .• This method of writing, which was derived from ancient court hand, was also used in transcribing wills well into the 19th century. See COURT HAND. 2. To prepare a copy of (a legal document, such as a deed) for execu­ tion. 3. To prepare a copy of (a bill or mandate) before a final legislative vote. 4. Hist. To buy large quantities of (a stock or commodity) in an effort to corner the market and control the price. 5. To absorb or fully occupy. - Formerly also spelled ingross. Cf. ENROLL (2). - engrossment, n. engrossed bill. See BILL (3). engrosser, n. L A person who engrosses legal docu­ ments. 2. Hist. A person who buys large quantities of a commodity in an effort to control the price. Engrosser of the Great Roll. See CLERK OF THE PIPE. engrossing, n. Hist. The practice of buying large quan­ tities of commodities or merchandise with the intent of gaining a monopoly and selling them at a very high price.• Engrossing was a misdemeanor in England

enlarge

until 1834.

Also termed engrossment. See CORNER­

ING THE MARKET.

"Engrossing ... is the getting into one's possession, or buying up, of corn or other dead victuals, with intent to sell them again. This must of course be injurious to the public, by putting it in the power of one or two rich men to raise the price of provisions at their own discretion." 4 William Blackstone, Commentaries on the Laws of England 158 (1769).

engrossment, n. (16c) L The preparation of a legal document (such as a deed) for execution. 2. The drafting of a resolution or bill just before a final vote on the matter in the legislature. 3. ENGROSSING. enhanced, adj. Made increased . enhanced damages. See DAMAGES. enhancement. The act of augmenting; the state of being enhanced . enheritance (on-nair-ee-tahns), n. [Law French] See INHERITANCE.

enitia pars (a-nish-ee-a pahrz). [Latin] The share of the eldest.• In English law, this describes the lot or share chosen by the eldest of coparceners when they make a voluntary partition. The first choice (primer election) belongs to the eldest. enjoin, vb. (l3c) 1. To legally prohibit or restrain by injunction . [Cases: Injunction (;::J 1.] 2. To prescribe, mandate, or strongly encourage . - Also spelled injoin. enjoinment (for sense 1), n. - enjoinder (for sense 2), n. enjoinable, adj. Capable of being prohibited by injunc­ tion . [Cases: Injunction 26-105.] enjoy, vb. (15c) To have, possess, and use (something) with satisfaction; to occupy or have the benefit of (property). enjoyment, n. (16c) 1. Possession and use, esp. of rights or property. 2. The exercise of a right. adverse enjoyment. (18c) The possession or use ofland under a claim of right against the property owner. [Cases; Easements (;::J8.] beneficial enjoyment. (I8c) The possession and benefit ofland or other property, but without legal title. present enjoyment. (18c) The immediate possession and use ofland or other property. quiet enjoyment. (l8c) The possession ofland with the assurance that the possession will not be disturbed by a superior title. See covenant for quiet enjoyment under COVENANT (4). [Cases: Covenants (:-:::>43,65.] en juicio (en hwee-syoh), adv. [Spanish] Judicially; in a court oflaw. enlarge, vb. (14c) 1. To increase in size or extend in scope or duration . 2. To free from custody or impris­ onment . Cf. AT LARGE. ­ enlargement, n. enlargement of time. (ISc) A usu. court-ordered exten­ sion of the time allowed to perform an action, esp. a procedural one. enlarger l'estate (en-Iahr-j.:>f l.:>-stayt). [Law French] Hist. A release that enlarges an estate and consists of a con­ veyance of the ulterior interest to the tenant. • If an estate was held by a tenant for life or years, with the remainder to another in fee, and jfthe one in remain­ der released all rights to the tenant and his or her heirs (through an enlarger ['estate), the tenant then held the estate in fee. enlisted member. Military law. A person in an enlisted grade; a person in military service below the grade of officer or warrant officer. [Cases: Armed Services 21.] - Also termed enlisted man. enlistment, n. (ISc) Voluntary entry into a branch of the armed services. [Cases: Armed Services enlist, vb. en masse (en mas). [French] (ISc) In a mass; in a large group all at once; all together. en mort mayne (en mort mayn). [French "in dead hand"] In mortmain. See MORTMAIN. Enoch Arden law (ee-n.:>k ahrd-.:>n). (1923) A statute that grants a divorce or an exemption from liability so that a person can remarry when his or her spouse has been absent without explanation for a speclfied number of years (usu. five or seven).• This type oflaw is named after a Tennyson poem, in which the eponymous hero, having been shipwrecked for years on a desert island, returns home to find that his wife has remarried. He selflessly conceals his identity from her so that she can remain with her new husband. - Also spelled Enoc Arden law. See presumptive death under DEATH; ABAN­ Cf. SEVEN-YEARS' ABSENCE RULE. [Cases: Divorce Marriage n.] enorm (i-norm), adj. (ISc) Hist. (Of a crime or other wrong) monstrously wicked. enormia (i-nor-mee-.:», n. [Latin] Common-law pleading. Unlawful or wrongful acts; wrongs .• This word, esp. as part of the phrase et alia enormia ("and other outrages"), appeared regularly in writs and declara­ tions of trespass. enorm lesion (i-norm lee-zh.:>n). See LAESIO ENORMIS. enormous, adj. Aggravated; excessively large <enormous crimes>. en owel main (en ow-al mayn). [Law French] In equal hand. enpleet (en-pleet), vb. Hist. See IMPLEAD. enquete (on-ket), n. [French] Eccles. law. An examina­ tion of witnesses (taken down in writing) by or before an authorized judge for the purpose of gathering tes­

timony to be used in a trial. Also termed enque$t (on[g]-kwes[t]). en recouvrement (on ray-koo-vr.:>-mon). [French "for purpose of recovery"] French law. An indorsement on a bill of exchange that does not transfer the property in the bill of exchange but merely gives the indorsee the authority to recover the amount of the bilL enregistrement (on-ray-zhees-tr.:>-mon), n. [French] French law. Registration. _ This formality is performed by a clerk who inscribes a government register with a summary analysis of a deed or other document. The clerk then puts a stamped or sealed note on the deed or document, indicating the date on which it was reg­ istered. enrichment. (l7c) The receipt of a benefit. Cf. U:'>IJUST ENRICHMENT.

enroll, vb. (I4c) 1. To register or transcribe (a legal document, as a deed) into an official record on execu­ tion. - Formerly also spelled in roll. 2. To prepare (a bill passed by the legislature) for the executive's signature. Cf. ENGROSS. [Cases: Statutes enrolled, adj. Registered; recorded. enrolled agent. One who, though neither a certified public accountant nor an attorney, has been admitted to practice before the IRS, either by passing an exami­ nation or by working for the IRS in a technical area for at least five years.• The enrolled agent is one of four types of persons who are allowed to practice before the IRS, the other three being attorneys, certified public accountants, and persons who are admitted to repre­ sent either themselves or others in a particular case. [Cases: Internal Revenue ~~4444.1 enrolled bill. See BILL (3). enrolled-bill rule. (1914) The conclusive presumption that a statute, once formalized, appears precisely as the legislature intended, thereby preventing any challenge to the drafting of the bill. [Cases: Statutes 37(2.l).] sentencing entrapment. Entrapment of a defendant who is predisposed to commit a lesser offense but who is unlawfully induced to commit a more serious offense that carries a more severe sentence. - Also termed sentence-factor manipulation. entrebat (on-trd-ba), n. [Law French] An intruder or interloper. entrepOt (on-trd-poh), n. [French] (18c) French law. A building or place where goods from abroad may be deposited and from which those goods may then be exported to another country without paying a duty. entrepreneur (on-trd-prd-n;)r or -noor), n. (l9c) One who initiates and assumes the financial risks of a new enterprise and who usu. undertakes its management. entrepreneurial rights. See NEIGHBORING RIGHTS. entrust, vb. (l6c) To give (a person) the responsibility for something, usu. after establishing a confidential relationship. - Also spelled (archaically) intrust. See NEGLIGENT ENTRUSTMENT. - entrustment, n. entrusting, n. Commercial law. The transfer of posses­ sion of goods to a merchant who deals in goods of that type and who may in turn transfer the goods and all rights to them to a purchaser in the ordinary course of business. UCC § 2-403(2). [Cases: Sales C=>234(7).] entry, n. (Bc) 1. The act, right, or privilege of entering real property . forcible entry. See FORCIBLE ENTRY. lawful entry. (17c) 1. The entry onto real property by a person not in possession, under a claim or color of right, and without force or fraud. 2. The entry of premises under a search warrant. See SEARCH WARRANT. open entry. (l8c) A conspicuous entry onto real property to take possession; an entry that is neither clandestine nor carried out by secret artifice or strata­ gem and that (by law in some states) is accomplished in the presence of two witnesses. reentry. See REENTRY. unlawful entry. (l7c) 1. The crime of entering another's real property, by fraud or other illegal means, without the owner's consent. Cf. TRESPASS (1). 2. An alien's

crossing of a border into a country without proper documents. [Cases: Aliens, Immigration, and Citi­ zenship C=>771.] 2. An item written in a record; a notation . blind entry. An accounting entry that indicates only the debited and credited amounts without any expla­ nation. compound journal entry. A journal entry requiring more than one debit and credit (as when revenue is received partly in cash and partly in securities). journal entry. An entry in an accounting journal of equal debits and credits, with occasional explanations of the recorded transactions. 3. The placement of something before the court or on the record. 4. Copyright. The deposit of a title of work with the Register of Copyrights to secure its protec­ tion. [Cases: Copyrights and Intellectual PropertyC=> 50.10.] 5. Immigration. Any entrance of an alien into the United States, whether voluntary or involuntary. [Cases: Aliens, Immigration, and Citizenship C=>220, 251, 771.] 6. Criminal law. The unlawful coming into a building to commit a crime. [Cases: Burglary C=> 9(2).] entry, right of. See POWER OF TERMINATION.

entry, writ of. See WRIT OF ENTRY.

entry ad communem legem (ad b-myoo-ndm lee-jdm).

[Latin] Hist. 1. Entry at common law. 2. AD COMMUNEM LEGEM. entry ad terminum qui praeteriit (ad t;)r-md-ndm kWI pri-ter-ee-it). See AD TERMINUM QUI PRAETERIIT. entry fiction. The assumption, for purposes of immigra­ tion and deportation proceedings, that an excludable alien is to be treated as if detained at the border despite his or her physical presence in the United States. entry for marriage in speech. See causa matrimonii praelocuti under CAUSA (1). entry in casu consimili (en-tree in kay-s[y]oo kdn-sim­ d-lr). [Latin] See CASU CONSIMILI. entryman (en-tree-mdn), n. Archaic. A person who enters public land and stakes a claim with the inten­ tion of settling. entry of judgment. (l7c) The ministerial recording of a court's final decision, usu. by noting it in a judgment book or civil docket. Cf. RENDITION OF JUDGMENT. [Cases: Federal Civil Procedure C=>262l; Judgment C=>270-284.] entry on the roll. Hist. 1. A clerk's notation on a parch­ ment roll of the proceedings and issues in a particular case.• Before parties began submitting written plead­ ings, they would appear (in person or through counsel) in open court and state their respective contentions orally until they settled on the issue or precise point in dispute. During the progress of these oral statements, an appointed officer of the court would make minutes of the various proceedings on a parchment roll that

then became the official record of the suit. Even after the practice of oral pleadings had fallen into disuse, proceedings continued to be entered "on the roll." This practice was abolished early in the 19th century. 2. A future interest created in a transferor who conveys an estate on condition subsequent. enumerate (i-n[y]oo-m<J-rayt), vb. To count off or deSig­ nate one by one; to list. - enumeration, n. enumerated motion. See MOTION (1). enumerated power. See POWER (3). enumerator. A person appointed to collect census papers or schedules. enunciate (i-nelll-see-ayt), vb. (17c) 1. To state publicly; to announce or proclaim . 2. To articulate or pro­ nounce <enunciate your syllables more clearly when you speak>. enunciation, n. - enunciable, adj. enunciator, n. enure. See INURE. en ventre sa mere (on von-tr 1503.] equa1-footing doctrine. (I 949) The principle that a state admitted to the Union after 1789 enters with the same rights, sovereignty, and jurisdiction within its borders as did the original 13 states. equality. (l5c) The quality or state of being equal; esp., likeness in power or political status. See EQUAL PRO­ TECTION.

"We need not repeat the burning irony of Anatole France: 'The law in its majesty draws no distinction but forbids rich and poor alike from begging in the streets or from sleeping in the public parks.' Equality is meaningless under unequal conditions." Morris R. Cohen, Reason and Law 101 (1961).

political equality. The sharing of governmental deci­ sions in such a way that, in the setting ofgovernmen­ tal policies, the preference of each citizen is assigned an equal value, equality before the law. (18c) The status or condition of being treated fairly according to regularly established norms ofjustice; esp., in British constitutional law, the notion that all persons are subject to the ordinary law of the land administered by the ordinary law courts, that officials and others are not exempt from the general duty of obedience to the law, that discretionary gov­ ernmental powers must not be abused, and that the task of superintending the operation of law rests with an impartial, independent judiciary.

616

law. _ This doctrine does not, of course, mean that all nations are equal in power or influence, but merely that, as nations, they all have the same legal rights. equalization, n. (lSc) 1. The raising or lowering of assessed values to achieve conformity with values in surrounding areas. 2. Tax. The adjustment of an assess­ ment or tax to create a rate uniform with another. ­ Also termed equalization oftaxes; fair and proper legal assessment. [Cases: Taxation (~;)2621-2634.] equalization board. (1875) A local governmental agency responsible for adjusting the tax rates in different dis­ tricts to ensure an equitable distribution of the tax burden. Also termed board ofequalization. [Cases: Taxation (;:::::>2621-2634.] equalization oftaxes. See EQUALIZATION (2). equalize, vb. To make equal; to cause to correspond or be the same in amount or degree. equal-knowledge rule. Georgia law. The principle that a complainant who was at least as aware as the defen­ dant of the danger has no grounds for recovery because the consequences could have been readily avoided. Cf. SUPERIOR-KNOWLEDGE RULE. [Cases: Negligence 506(2).] equally divided. (I6c) 1. (Of property) apportioned per capita not per stirpes among heirs on the testator's death.• A provision in a will calling for property to be divided "share and share alike" has the same effect. [Cases: Wills C::>530.] 2. (Of a court, legislature, or other group) having the same number of votes on each side of an issue Of dispute. equal-management rule. The doctrine that each spouse alone may manage community property unless the law provides otherwise. Cf. HEAD-AND-MASTER RULE. [Cases: Husband and Wife (,~265.] equal-opportunity employer. See EMPLOYER. equal-or-superior-knowledge rule. See SGPERIOR­ KNOWLEDGE RULE.

"A number of distinct meanings are normally given to the provision that there should be equality before the law. One meaning is that equality before the law only connotes the equal subjection of all to a common system of law, whatever its content.... A second theory asserts that equality before the law is basically a procedural concept, pertaining to the application and enforcement of laws and the operation of the legal system .... A third meaning normally borne by declarations that all are equal before the law, perhaps no more than a variant of the second, is that State and individual before the law should be equal." Polyvios G. Polyviou, The Equal Protection of the Laws 1-2 (1980).

Equal Pay Act. A federal law mandating that all who perform substantially the same work must be paid equally. 29 USCA § 206. [Cases: Labor and Employ­ ment (;:::::>2452.] equal protection. (1866) The 14th Amendment guaran­ tee that the government must treat a person or class of persons the same as it treats other persons or classes in like circumstances. - In today's constitutional juris­ prudence, equal protection means that legislation that discriminates must have a rational basis for doing so. And if the legislation affects a fundamental right (such as the right to vote) or involves a suspect classification (such as race), it is unconstitutional unless it can with­ stand strict scrutiny. - Also termed equal protection of the laws; equal protection under the law. See RATIONAL­ BASIS TEST; STRICT SCRUTINY. [Cases: Constitutional Law C--:c 3000-3833.]

equality of states. Int'llaw. The doctrine that all fully independent nations are equal under international

"Equal protection does not require that all persons be dealt with identically, but it does require that a distinction made have some relevance to the purpose for which the clas­

617

equitable distribution sification is made." Baxstrom v. Herold, 383 U.S. 107, 111, 86 S.Ct. 760, 763 (1966). "As in all equal protection cases, ... the crucial question is whether there is an appropriate governmental interest suitably furthered by the differential treatment." Police Dep'r v. Mosley, 408 U.S. 92, 95, 92 S.Ct. 2286, 2290 (1972). "[Tlhe equal protection principle is exclusively associated with written Constitutions and embodies guarantees of equal treatment normally applied not only to the procedural enforcement of laws but also to the substantive content of their provisions. In other words, the equal protection of the laws is invariably treated as a substantive constitutional principle which demands that laws will only be legitimate if they can be described as just and equal." Polyvios G. Polyviou, The Equal Protection of the Laws 4 (1980).

Equal Protection Clause. (1899) The 14th Amendment provision requiring the states to give similarly situated persons or classes similar treatment under the law. Cf. DUE PROCESS CLAUSE. [Cases; Constitutional Law 3000-3833.J equal protection of the laws. See EQUAL PROTECTION. equal protection under the law. See EQUAL PROTEC­ TION.

Equal Rights Amendment. A failed constitutional amendment that, had it been ratified, would have con­ stitutionally prohibited sex-based discrimination .• Congress passed the Amendment in 1972, but it failed in 1982, having been ratified by only 35 of the required 38 states. - Abbr. ERA. equal-shares clause. Insurance. A clause requiring an insurer to pay its proportionate share of a claimed loss. Equal Time Act. A federal law requiring that a broad­ casting-facility licensee who permits a legally quali­ fied candidate for public office to use the facility for broadcasting must afford an equal opportunity to all other candidates for the office. 47 USCA § 315. [Cases; Telecommunications C= 1153(3).] equal-time doctrine. See FAIRNESS DOCTRINE. eques (ee-kweez), n. [Latin] Hist. A knight. equilocus (ee-kw;l-loh-k;:ls), n. [Latin] An equal. equinox (ee-kw;l-noks orek-w;:l-noks), n. (14c) One ofthe two periods of the year when the time from the sun's rising to its setting is equal to that from its setting to its rising.• The vernal equinox is about March 21, and the autumnal equinox is about September 22. equip, vb. (16c) To furnish for service or against a need or exigency; to fit out; to supply with whatever is neces­ sary for efficient action. equipment, n. (17c) The articles or implements used for a specific purpose or activity (esp. a business operation). • Under the UCC, equipment includes goods if (1) the goods are used in or bought for a business enterprise (including farming or a profession) or by a debtor that is a nonprofit organization or a governmental subdivi­ sion or agency, and (2) the goods are not inventory, farm products, or consumer goods. UCC § 9-102(a)(33). [Cases; Secured Transactions C= 16.J

equipment trust. A financing device commonly used by railroads in which a trustee and the railroad together buy equipment from a manufacturer, with the trustee providing most of the purchase price, and the trustee then leases the equipment to the railroad, which pays a rental fee comprising interest, amortization for serial retirement, and the trustee's fee. See EQt:IPMENT TRUST CERTIFICATE; equipment trust bond under BOND (3). equipment trust bond. See BOND (3). equipment trust certificate. A security, usu. issued by a railroad, to pay tor new equipment.• Title to the equip­ ment is held by a trustee until the note has been paid off. Also termed car trust certificate; trust certificate. See EQUIPMENT TRUST. equitable (ek-wi-tiJ-biJl), adj. (I6c) 1. Just; consistent with principles of justice and right. 2. Existing in equity; available or sustainable by an action in equity, or under the rules and principles of equity. equitable abstention. See ABSTENTION. equitable action. See action in equity under ACTION (4). equitable-adjustment theory. (1979) The doctrine that in settling a federal contract dispute, the contracting officer should make a fair adjustment within a reason­ able time before the contractor has to settle with its subcontractors, suppliers, and other creditors. [Cases; United States (~:::;>70(20).J equitable adoption. See adoption by estoppel under ADOPTION (1).

equitable asset. See ASSET. equitable assignment. See ASSIGNMENT (2). equitable-benefit doctrine. Bankruptcy. The principle that allows a bankruptcy court to grant preferred status to claims for service rendered by persons other than bankruptcy officers, to the extent that the service ben­ efited the estate, when the person filing the claim acted primarily for the benefit ofthe estate as a whole. [Cases; Bankruptcy C=;:,2871.] equitable construction. See liberal construction under CONSTRUCTION.

equitable conversion. See CONVERSION (1). equitable defense. See DEFENSE (1). equitable disseisin. See DISSEISIN. equitable distribution. (1893) Family law. The division of marital property by a court in a divorce proceed­ ing, under statutory guidelines that provide for a fair, but not necessarily equal, allocation of the property between the spouses.• With equitable distribution, when a marriage ends in divorce, property acquired during the marriage is divided equitably between the spouses regardless of who holds title to the property. The courts consider many factors in awarding property, including a spouse's monetary contributions, nonmon­ etaryassistance to a spouse's career or earning poten­ tial, the efforts of each spouse during the marriage, and the length of the marriage. The court may take into account the relative earning capacity of the spouses

equitable recoupment. (1878) 1. Tax. A doctrine allowing a taxpayer to offset previously overpaid taxes against current taxes due, even though the taxpayer is time-barred from claiming a refund on the previous taxes. [Cases: Internal Revenue C=>4829.1O.] 2. Tax. A doctrine allowing the government to offset taxes previ­ ously uncollected from a taxpayer against the taxpayer's current claim for a refund, even though the government is time-barred from collecting the previous taxes .• In OF APPROXIMATION. both senses, this type of recoupment can be asserted only if the statute oflimitations has created an ineq­ equitable dower. See equitable jointure under JOINTURE. uitable result. See RECOUPMENT (2). [Cases: Internal equitable duty. See DUTY (1). Revenue C=>4845.] 3. A principle that diminishes a equitable easement. See EASEMENT. party's right to recover a debt to the extent that the equitable ejectment. See EJECTMENT. party holds money or property of the debtor to which the party has no right. • This doctrine is ordinarily a equitable election. See ELECTION (2). defensive remedy going only to mitigation of damages. equitable estate. See ESTATE (1). The doctrine is sometimes applied so that a claim for equitable estoppel. See ESTOPPEL. a tax refund that is barred by limitations may none­ theless be recouped against a tax claim of the govern­ equitable foreclosure. See FORECLOSURE. ment. - Also termed equitable-recoupment doctrine. equitable fraud. See constructive fraud (1) under See SETOFF; RECOUPMENT (3). [Cases: Set-off and Coun­ FRAUD. terclaim equitable-fund doctrine. See COMMON-FUND DOCT­ eqnitable relief. See equitable remedy under REMEDY. RINE. equitable remedy. See REMEDY. equitable indemnity. See INDEMNITY.

equitable remuneration. See compulsory license (1) equitable interest. See INTEREST (2).

under LICENSE. equitable jettison. See JETTISON.

equitable rescission. See RESCISSION. equitable jointure. See JOINTURE.

equitable-restraint doctrine. See Younger abstention (1) equitable levy. See equitable lien under LIEN.

under ABSTENTION. equitable lien. See LIEN.

equitable reversion. See REVERSION (1). equitable life estate. See ESTATE (1).

equitable right. See RIGHT. equitable life tenant. See LIFE TENANT.

equitable right to setoff'. (1895) The right to cancel cr05S­ demands, usu. used by a bank to take from a customer's equitable mortgage. See MORTGAGE.

deposit accounts the amount equal to the customer's equitable owner. See benefiCial owner (1) under

debts that have matured and that are owed to that bank. OWNER. See SETOFF. [Cases: Banks and Banking C=>134; Set-off equitable ownersbip. See beneficial ownership (1) under and Counterclaim C=>8. 1 OWNERSHIP. equitable seisin. See SEISIN. equitable parent. See PARENT. equitable servitude. See restrictive covenant under equitable-parent doctrine. Family law. The principle COVENANT (4). that a spouse who is not the biological parent of a equitable subrogation. See legal subrogation under SUB­ child born or conceived during the marriage may, in a ROGATION. divorce action, be considered the child's natural father equitable title. See TITLE (2). or mother if (1) the other spouse and the child both acknowledge a parent-child relationship, esp. when equitable tolling. (1967) 1. The doctrine that the statute that other spouse has cooperated in the development oflimitations will not bar a claim ifthe plaintiff, despite of this relationship before the divorce action, (2) the diligent efforts, did not discover the injury until after nonbiologically related spouse wants parental rights, the limitations period had expired, - Equitable tolling and (3) he or she is willing to take on the responsibility does not require misconduct by the defendant. [Cases: of paying support, • The doctrine sometimes applies Limitation of Actions C=> 1045.] 2. The doctrine that to nonspousal partners as well. Very few jurisdictions if a plaintiff files a suit first in one court and then refiles apply the doctrine. See Carolee Kvoriak Lezuch, Michi­ in another, the statute of limitations does not run while gan's Doctrine ofEquitable Parenthood, 45 Wayne L. the litigation is pending in the first court if various requirements are met. • Among those requirements Rev. 1529 (1999). Also termed eqUitable-parenthood are (1) timely notice to the defendant; (2) no prejudice doctrine. [Cases: Child Custody C=>274; Child Support Children Out-of-Wedlock to the defendant; and (3) reasonable and good-faith 1; Parent and conduct on the part of the plaintiff. Child C=> 15.] and the fault of either spouse. Equitable distribution is applied in 47 states (i.e., all the states except California, Louisiana, and New Mexico, which are "equal division" community-property states). - Also termed equitable division; assignment ofproperty. Cf. TITLE DIVISION; COMMUNITY PROPERTY. [Cases: Divorce C=>248.] equitable division. See EQUITABLE DISTRIBUTION. equitable doctrine of approximation. See DOCTRINE

equitable waste. See WASTE (1). equity, n. (l4c) 1. Fairness; impartiality; evenhanded dealing 412.2(3),517.2(3),518.] escot (e-skot), n. (17c) Hist. English law. A tax paid in boroughs and corporations to support the commu­ nity. escribano (es-kree-bah-noh), n. [Spanish] Spanish law. A notary; speci£., an officer who has authority to set down in writing, and attest to, transactions and con­ tracts between private persons, as well as judicial acts and proceedings. escritura (es-kree-toor-ah), n. [Spanish] Spanish law. A written instrument, such as a contract; esp., a deed that either is prepared by an escribano or notary of a corpo­ ration or council (concejo) or is sealed with a monarchi­ calor governmental seaL escritura publica (es-kree-toor-ah p3b-li-ka). See PUBLIC WRITING (2).

escroquerie (es-kroh-ka-ree), n. [French] Fraud; swin­ dling; cheating. escrow (es-kroh), n. (16c) 1. A legal document or property delivered by a promisor to a third party to be held by the third party for a given amount of time or until the occurrence of a condition, at which time the third party is to hand over the document or property to the promisee . [Cases: Deposits and Escrows 11-26.J 2. An account held in trust or as security . - Also termed escrow account; impound account; reserve account. See escrow account under ACCOU;:\IT. [Cases: Deposits and Escrows C=: 1LJ 3. The holder of such a document, property, or deposit . Also termed escrow agent. [Cases: Deposits and Escrows C=:13.] 4. The general arrangement under which a legal document or property is delivered to a third person until the occurrence of a condition . escrow, vb. 'Like 'scroll' and 'scrawl: the word 'escrow' is derived from the Norman·French word for a writing or a written instru­ ment. It has come in practice to refer to a security device: one or both parties to a transaction deposit property or an instrument with a third party until some condition has occurred. The property or instrument may be referred to as 'the escrow'; the delivery is said to be 'in escrow.'" Restate· ment (Second) of Contracts § 103 em!. a (1979).

escrow account. See ACCOUNT. escrow agent. See AGENT (2). escrow agreement. (1882) Ibe instructions given to the third-party depositary of an escrow. [Cases: Deposits and Escrows (;:..-, 15.] escrow contract. See CONTRACT. escrow deposit. See escrow account under ACCOUNT. escrowee. See escrow agent under AGENT (2). escrow holder. See escrow agent under AGENT (2). escrowl (es-krohl), n. Hist. 1. An escrow. 2. A scroll. escrow officer. See escrow agent under AGENT (2). escuage (es-kyoo-ij). [French, fro Latin escuagium] See SCUTAGE.

E-Sign Act. The short name for the Electronic Signa­ tures in Global and National Commerce Act, a 2000 federal statute that establishes the legal equivalency of electronic contracts, electronic signatures, and other electronic records with their paper counterparts.• The E-Sign Act applies to all types of transactions, whether in interstate or foreign commerce, unless a specific exception applies. Among the few exceptions are documents related to family law and probate law, most documents required by the Uniform Commer­ cial Code, court documents, and a list of notices that directly impact the lives of consumers (e.g., a notice of termination of utility services or a notice of eviction). [Cases: Signatures C=: 1.] esketores (es-ka-tor-eez), n. pl. Hist. Robbers; destroyers of others' lands or fortunes. eskipper (a-skip-<Jr), vb. To ship. Also termed eskip­ pare (es-b-pair-ee). eskippeson (a-skip-[<J]-san), n. Shippage; passage by sea. - Also termed skippeson. eslisor (es-h-zar). See ELISOR. esne (ez-nee), n. Hist. A hireling of servile condition; a hired laborer or a slave. esnecy (es-ni-see), n. Hist. Seniority: the condition, right, or privilege of the eldest-born .• The term esp. applied to the privilege of the eldest among coparceners to make a first choice of shares upon a voluntary parti­ tion. - Also termed aesnecia. ESOP (ee-sop). abbr. See employee-stock-ownership plan under EMPLOYEE BENEFIT PLAN.

essoin day

625

espera (es-pd-fd), n. A period fixed by law or by a court within which certain acts are to be performed (such as payment of a debt). espionage (es-pee-d-nahzh). (l8c) The practice of using spies to collect information about what another govern­ ment or company is doing or plans to do. industrial espionage. (1962) Intellectual property. One company's spying on another to steal trade secrets or other proprietary information. Espionage Act. A federal law that criminalizes and punishes espionage, spying, and related crimes. 18 USCA §§ 793 et seq.• Two Espionage Acts were passed. The 1917 act criminalized false statements intended to interfere with the war effort; to willfully cause or attempt to cause dissension in the armed forces; or to willfully obstruct national recruiting and enlist­ ment activities. This act remains enforceable "when the United States is at war." The 1918 act criminalized speech intended to obstruct war-bond sales; to generate scorn or contempt for democratic government, the flag, or the uniform of the Army or Navy; to urge reduced production of war materials with the intent to hinder the war effort; or to express support for a national enemy or opposition to the United States' cause. The act's constitutionality was upheld by the U.S. Supreme Court before it was repealed in 1921. [Cases: War and National Emergency C=>48.] esplees (es-pleez), n. pl. (17c) Archaic. 1. Products yielded from land. 2. Rents or other payments derived from land. 3. Land itself. - Also termed explees. espousals (d-spow-zdlz), n. (14c) Mutual promises between a man and a woman to marry one another. [Cases: Breach of Marriage Promise C=>4, S.] "Espousals were of two kinds: sponsalia per verba de futuro, which take place if man and woman promise each other that they will hereafter become husband and wife; sponsalia per verba de praesenti, which take place if they declare that they take each other as husband and wife now, at this very moment." 2 Frederick Pollock & Frederic William Maitland, History of English Law Before the Time of Edward 1368 (2d ed. 1899).

espouse, vb. (lSc) 1. To marry. 2. To dedicate oneself to and advocate for (a cause). esquire (es-kwIr or e-skwIr). (ISc) 1. Hist. A candidate for knighthood who assisted knights in martial endeav­ ors. 2. Hist. A member of the gentry whose rank was inferior to that of a knight. 3. Archaic. A landed gentle­ man; a member ofthe landed gentry. 4. (usu. cap. as an honorific) A title of courtesy commonly appended after the name of a lawyer. - Abbr. Esq. "Heralds and experts on honour for a long time regarded serjeants either as inferior to esquires or at most as being equals by reason of office. James Whitelocke, a barrister with historical interests and a future serjeant, said in 1601 that becoming a serjeant carried with it the status of esquire, so that the proper description was 'A.B. esquire, serjeant at law.' Chief Justice Dyer, however, argued in 1580 that the name of esquire was 'drowned' on creation as a serjeant, the latter being a higher degree; and the same point of view was urged in 1611 by the serjeants in a pre· cedence dispute. It was probably not until the eighteenth century that the heralds accepted the priority of serjeants

before esquires. By that time the rank of esquire had begun its decline, and according to the courts it belonged to all barristers at law by virtue of their profession.: J,H. Baker, The Order of Serjeants at Law 52 (1984).

essence, of the. See OF THE ESSENCE. essence test. Labor law. A test under which an arbitra­ tor's interpretation of a collective-bargaining agree­ ment must be upheld if it derives in any rational way from the agreement, viewed in light of the agreement's language, its context, and any other evidence of the parties' intention. [Cases: Labor and Employment IS92; Labor and Employment 1623(1).] essendi quietum de tolonio (e-sen-dI kWI-ee-tdm dee td-Ioh-nee-oh). [Latin "a writ to be free of a toll"] Hist. A writ available to a citizen or a burgess of any city or town who, by charter or prescription, is exempt from a particular toll. essential finding. See FINDING OF FACT. essentialia (e-sen-shee-ay-Iee-d). [Law Latin "essentials"] Scots law. Terms or qualities essential to the existence of a particular right or contract. Cf. ACCIDENTALIA. "Essentialia. This term, applied to a contract, or right, or other subject of law, signifies those things which are essential to the very being of the contract or right, as such, and any alteration in which would make the contract or right resolve into one of another kind." William Bell, Bell's Dictionary and Digest of the Law of Scotland 406 (George Watson ed., 7th ed. 1890).

essentialia feudi (e-sen-shee-ay-Iee-d fyoo-dl). [Law Latin] Scots law. The essential terms of a feudal right. Cf. ACCIDENTALIA FEUDI. essential mistake. See MISTAKE. essential term. See fundamental term under TERM (2). essoin (e-soyn), n. [fr. Old French essoi(g)ne "excuse"] (14c) Hist. 1. An excuse for not appearing in court on an appointed day in obedience to a summons. 2. The offering or presentation of such an excuse. - Also spelled essoign. 'The first return-day of every term, properly speaking, is the first day of that term; and on that day the court used formerly to sit ... to hear the essoigns, or excuses, of such as did not appear according to the summons of the writ. This day therefore came to be called the essoign-day of the term." 1 George Crompton, Practice Common-Placed:

Rules and Cases of Practice in the Courts of King's Bench and Common Pleas liv (3d ed. 1787).

essoin, vb. [fr. Old French essoi(g)nier "to excuse"] (14c) Hist. To present an excuse for not appearing in court as ordered. "Upon the summons, the defendant either appeared, or essoigned, or made default. If he did the former, the plain­ tiff declared against him, and the cause was proceeded in by the court; and if he did the latter, the plaintiff had liberty to take out further process against him. But if he essoigned, that is, sent an excuse to the court why he could not attend, he was to send it by the return day of the writ which if he did, a further process did not issue against him." 1 George Crompton, Practice Common-Placed: Rules and Cases of

Practice in the Courts of King's Bench and Common Pleas liv (3d ed. 1787).

essoin day. Hist. English law. The first general return day of the term, when the courts sat to receive essoins .•

essoin de malo villae

By the Law Terms Act (1830), essoin days were elimi­ nated as a part of the term. St. 11 Geo. 4; 1 Will. 4, ch. 70, § 6. essoin de malo villae (dee mal-oh viI-eel. Hist. A proce­ dure by which a defendant, who was in court the first day but was then taken ill without pleading, would send two essoiners to state in court that the defendant was detained by sickness in a particular village and thus unable to attend. - This essoin would be accepted unless the plaintiff could show its falsity. essoiner (e-soyn- 14.2-14.7; Joint Tenancy Tenancy in Common landed estate. An interest in real property, esp. suburban or rural land, as distinguished from real estate situated in a city. - Also termed landed property. leasehold estate. See LEASEHOLD.

estate

legal estate. An interest enforced in law rather than in equity. legal life estate. See life estate. life estate. (l8c) An estate held only for the duration of a specified person's life, usu. the possessor's. - Most life estates created, for example, by a grant "to Jane for life" are beneficial interests under trusts, the corpus often being personal property, not real property. ­ Also termed estate for life; legal life estate; life tenancy. See LIFE TENANT. [Cases: Ufe Estates C=o 1.] life estate pur autre vie (p;:lr oh-tr;:l vee). (1888) A life estate for which the measuring lite - the life whose duration determines the duration of the estate - is someone's other than the possessor's. Also spelled life estate per autre vie. [Cases: Ufe Estates C=o 1.] marital estate. See marital property under PROPERTY. next eventual estate. (1836) An estate taking effect upon an event that terminates the accumulation of undisposed rents and profits; an estate taking effect when the existing estate terminates. nonancestral estate. An estate from any source other than the owner's ancestors. - Also termed nonances­ tral property. nonfreehold estate. Any estate in real property without seisin, such as an estate for years, from period to period, at will, or at sufferance; any estate except a fee simple, fee tail, or life estate. original estate. An estate that is the first of one or more derivative estates, bearing to each other the relation of a particular estate and a reversion. particular estate. An estate or interest less than a fee simple, such as a fee tail, a life estate, or a term for years. _ It is so called because the estate is a mere part (particula) of the fee Simple. periodic estate. See periodic tenancy under TENANCY. possessory estate. (18c) An estate giving the holder the right to possess the property, with or without an own­ ership interest in the property. present estate. An estate in immediate possession; one vested at the present time, as distinguished from a future estate. See present interest under INTEREST (2).

qualified estate. Any estate that is not absolute and unconditional; a limited or conditional estate. reversionary estate. See REVERSION. separate estate. 1he individual property of one oftwo persons who stand in a marital or business relation­ Divorce ship. See SEPARATE PROPERTY. 252.3(3); Husband and Wife 10-202.] settled estate. An estate created or limited under a settlement; an estate in which the powers of alien­ ation, devising, and transmission according to the ordinary rules of descent are restrained by the settle­ ment's terms.

628

stipendiary estate (stI-pen-dee-er-ee). Hist. An estate granted in return for services, usu. of a military kind. vested estate. (18c) An estate with a present right of enjoyment or a present fixed right of future enjoy­ ment. 2. All that a person or entity owns, including both real and personal property. bankruptcy estate. See BANKRUPTCY ESTATE. 3. The property that one leaves after death; the col­ lective assets and liabilities of a dead person. [Cases: Executors and Administrators C=o38-73.] "The word 'estate' was probably adopted because in early days it was possible to ascertain a man's status or position in life by discovering the particular kind of tenure by which he held his lands. The quality of his tenure gave a clue to his status. The baron for example ought in theory to be the holder of a barony; he has the status of a baron because he has the estate of a baron .... [O]ne of the distinguishing marks of [the] freehold estates was the uncertainty of their duration. They were invariably held either for life, or for some other space of time dependent upon an event which might not happen within a lifetime, and thus a freehold estate came to be regarded as one which involved the per­ formance of free services only, but as one which endured for an uncertain time. In this way, the word 'estate' came to denote the quantity of a man's interest in land." C.c. Cheshire, Modern Law of Real Property 26 (3d ed. 1933).

adjusted gross estate. 1. The total value of a decedent's property after subtracting administration expenses, funeral expenses, creditors' claims, and casualty losses. _ The value of the adjusted gross estate is used in computing the federal estate tax. Cf. net probate estate under PROBATE ESTATE. 2. See gross estate (1). ancestral estate. An estate that is acquired by descent or by operation of law with no other consideration than that ofblood. augmented estate. A refinement of the elective share to which a surviving spouse is entitled, whereby the "fair share" is identified as something other than the traditional one-third of the probate estate .• The current version of the Uniform Probate Code uses a sliding scale that increases with each year of marriage. Under the UPC, a surviving spouse has accrued full marital-property rights after 15 years of marriage. This percentage of spousal entitlement is applied to a reconceptualization of the decedent's estate to take into account more than just the assets remaining in the probate estate at death. Also added into the calcu­ 1ation are the value ofcertain inter vivos transfers that the decedent made to others in a way that depleted the probate estate; the value of similar transfers made to others by the spouse as well as the value of the marital property owned by the spouse at the decedent's death; and the value ofinter vivos transfers of property made by the decedent to the spouse. The Uniform Probate Code adopted this version of the augmented-estate concept in an attempt to equalize the treatment of surviving spouses in non-community-property states vis-a.-vis community- property states. Unif. Probate

629

estoppel

Code § 2-202. See ELECTIVE SHARE. [Cases: Wills ~~ 778-803.] decedent's estate. (18c) The real and personal property that a person possesses at the time of death and that passes to the heirs or testamentary beneficiaries. [Cases: Executors and Administrators (...'":::'38-73.] estate of inheritance. An estate that may descend to heirs. gross estate. 1. The total value of a decedent's property without any deductions. 2. Loosely, adjusted gross estate. [Cases: Internal Revenue (;::=>4168-4182.30.] heirless estate. The property of a person who dies intes­ tate and without heirs. See ESCHEAT. net estate. See net probate estate under PROBATE ESTATE.

netprobate estate. See PROBATE ESTATE. probate estate. See PROBATE ESTATE. residuary estate. (18c) The part of a decedent's estate remaining after payment of all debts, expenses, stat­ utory claims, taxes, and testamentary gifts (special, general, and demonstrative) have been made. - Also termed residual estate; residue; residuary; residuum. [Cases: Wills taxable estate. (18c) A decedent's gross estate reduced by allowable deductions (such as administration costs and ESOP deductions). IRC (26 USCA) § 2051. _ The taxable estate is the amount that is subject to the federal unified transfer tax at death. [Cases: Internal Revenue C::::'4168-4182.30.] 4. A tract ofland, esp. one affected by an easement. "The old definitions of this word [estate] generally confine it to lands or realty. Thus, according to lord Coke. 'state or estate signifieth such inheritance, freehold. term for years, &c., as any man hath in lands or tenements.' Co. Utt. 345a. So Cowell defines it to be 'that title or interest which a man hath in lands or tenements; and the same definition is given in the Termes de la Ley. And this limited sense of the word has been relied on, in argument, in some cases .... But. according to the settled modern doctrine, the term estate is of much more extensive import and application, being indeed genus generalissimum. and clearly compre· hending things personal as well as real; person as well as real estate." 1 Alexander M. Burrill, A Law Dictionary and Glossary 561 (2d ed. 1867).

dominant estate. (18c) An estate that benefits from an easement. Also termed dominant tenement; dominant property; upper estate. Cf. servient estate. [Cases: Easements (;::=> 1,38.] lower estate. See servient estate.

real estate. See real property under PROPERTY.

servient estate (s;Jr-vee-;mt). (I8c) An estate burdened

Also termed servient tenement; by an easement. servient property; lower estate. Cf. dominant estate. lCases: Easements 38.] upper estate. See dominant estate. estate duty. See DUTY (4).

estate freeze. (I986) An estate-planning maneuver

whereby an owner of a closely held business exchanges

common stock for dividend-paying preferred stock and gives the common stock to his or her children, thus seeking to guarantee an income in retirement and to avoid estate tax on future appreciation in the business's value. estate from period to period. See periodic tenancy under TENANCY.

estate in expectancy. See FUTURE INTEREST. estate in freehold. See FREEHOLD. estate in lands. (16c) 1. Property that one has in lands, tenements, or hereditaments, [Cases: Estates in Property 1.] 2. The conditions or circumstances under which a tenant stands in relation to the leased property. estate in remainder. See REMAINDER (1). estate planning. (1938) 1. The preparation for the dis­ tribution and management of a person's estate at death through the use ofwills, trusts, insurance policies, and other arrangements, esp. to reduce administration costs and transfer-tax liability. [Cases: Wills 1-202.]2. A branch of law that involves the arrangement of a person's estate, taking into account the laws of wills, taxes, insurance, property, and trusts. estates of the realm. I. The lords spiritual, the lords temporal, and the commons of Great Britain. Also termed the three estates. 2. In feudal Europe, the clergy, nobles, and commons. - Because the lords spiritual had no separate assembly or negative in their political capacity, some authorities reduce the estates in Great Britain to two, the lords and commons. In England (until about the 14th century), the three estates of the realm were the clergy, barons, and knights. In legal practice, the lords spiritual and lords temporal are usu. collectively designated simply as lords. estate's property. See PROPERTY OF THE ESTATE. estate tax. See TAX. estate trust. See TRUST. ester in judgment (es-t32(2).] ethical drug. See DRUG. ethical jurisprudence. See JURISPRUDENCE. ethical relativism. See MORAL RELATIVISM. ethical wall. (1988) A screening mechanism maintained by an organization, esp. a law firm, to protect client confidences from improper disclosure to lawyers or staff who are not involved in a particular representa­ tion.• The screening mechanism is designed to prevent lawyer or law-firm disqualification from certain rep­ resentations because of conflicts of interest. - Also termed screening mechanism; Chinese wall. [Cases: Attorney and Client C=>21.15.] ethics. See LEGAL ETHICS. ethnic cleansing. (1991) The officially sanctioned forcible and systematic diminution or elimination of targeted ethnic minorities from a geographic area, usu. by con­ fiscating real and personal property, ordering or con­ doning mass murders and mass rapes, and expelling the survivors .• In theory, the purpose ofethnic cleans­ ing is to drive all members of the victimized group out of a territory. In practice, ethnic cleansing is nearly syn­ onymous with genOcide as mass murder is a charac­ teristic ofboth. Ethnic cleansing additionally includes mass rapes for two cultural reasons: (1) the victims are often put to death by their relatives or commit suicide, and (2) any children born are regarded as belonging to the father's ethnic group, not the mother's. Both acts ­ murder and rape - are intended to diminish or extin­ guish the victimized minority. Cf. GENOCIDE. ethnic profiling. See RACIAL PROFILING. et hoc paratus est verificare (et hok p675; Federal Civil Procedure C=>2011; Trial C=>56.] demeanor evidence. (1909) The behavior and appear­ ance of a witness on the witness stand, to be con­ sidered by the fact-finder on the issue of credibility. [Cases: Criminal Law C=>553; Evidence C=>588.] demonstrative evidence (di-mon-strJ-tiv). (17c) Physical evidence that one can see and inspect (i.e. an explanatory aid, such as a chart, map, and some computer simulations) and that, while of probative value and usu. offered to clarify testimony, does not playa direct part in the incident in question .• This term sometimes overlaps with and is used as a synonym of real evidence. - Also termed illustra­ tive evidence; autoptic evidence; autoptic proference; real evidence; tangible evidence. See nonverbal testi­ mony under TESTIMONY. Cf. real evidence; testimonial evidence. [Cases: Criminal Law C=>404.5-404.85; Evidence C=> 188-198.] ''There remains a source of proof, distinct from either circumstantial or testimonial evidence, viz., what the tribunal sees or hears by its own senses. Whether this should be termed 'evidence' or not is a question of words, open to difference of view. But it is universally conceded to be an available source of proof. Bentham's term for it, 'real evidence,' came into wide vogue, but is ambiguous. The term 'autoptic proference' (etymologically meaning 'showing to the tribunal's own vision') is preferable." John H. Wigmore, A Students' Textbook of the Law of Evidence 39 (1935).

derivative evidence. (1961) Evidence that is discovered as a result of illegally obtained evidence and is there­ fore inadmissible because of the primary taint. See EXCLUSIONARY RULE; FRUIT-OF-THE-POISONOUS-TREE

[Cases: Criminal Law C=>394.1(3).] direct evidence. (16c) 1. Evidence that is based on personal knowledge or observation and that, if true, proves a fact without inference or presumption. ­ Also termed positive evidence. Cf. circumstantial DOCTRINE.

evidence; negative evidence. [Cases: Criminal Law~ 549; Evidence ~5S7.] 2. See original evidence (1). "A little reflection shows that no disputed case will ordinar­ ily be proved solely by circumstantial or solely by testimo­ nial evidence. Ordinarily there is evidence of both kinds. The matter has been obscured by the use of the term 'direct evidence,' - a term sometimes used to mean testimonial evidence in general, but sometimes also limited to apply only to testimony directly asserting the fact-in-issue .... The term 'direct' evidence has no utility." John H. Wigmore, A Students' Textbook of the Law of Evidence 40 (1935).

documentary evidence. (1Sc) Evidence supplied by a writing or other document, which must be authen­ ticated before the evidence is admissible. [Cases: Criminal Law ~429-446; Evidence ~325-3S3.] downright evidence. See DOWNRIGHT EVIDENCE. evidence aliunde. See extrinsic evidence (1). evidence-in-chief (1Sc) Evidence used by a party in making its case-in-chief. [Cases: Criminal Law ~ 6S2; Federal Civil Procedure ~2015; Trial ~61.] exclusive evidence. (1Sc) The only facts that have, or are allowed by law to have, any probative force at all on a particular matter in issue. "[T]here is an important class of rules declaring certain facts to be exclusive evidence, none other being admis­ sible. The execution of a document which requires attesta­ tion can be proved in no other way than by the testimony of an attesting witness, unless owing to the death or some other circumstance his testimony is unavailable. A written contract can generally be proved in no other way than by the production of the writing itself, whenever its produc­ tion is possible." John Salmond, Jurisprudence 48S (Glan­ ville L. Williams ed., 10th ed. 1947).

exculpatory evidence (ek-sk387; Evidence C=> 147,586.] newly discovered evidence. (18c) Evidence existing at the time of a motion or trial but then unknown to a party, who, upon later discovering it, may assert it as grounds for reconsideration or a new trial. See Fed. R. Civ. P. 60(b). [Cases: Criminal Law C=>938; Federal Civil Procedure C=>928, 2350, 2655; New Trial C=> 99.] no evidence. See NO EVIDENCE. oblique evidence. See circumstantial evidence (1). opinion evidence. (1955) A witness's belief, thought, inference, or conclusion concerning a fact or facts. Fed. R. Evid. 701-705. See OPINION (3); OPINION RULE. [Cases: Criminal Law C=>448; Evidence 470-574.] "In a sense all testimony to matter of fact is opinion evidence; i.e. it is a conclusion formed from phenomena and mental impressions.'· James B. Thayer, A Preliminary Treatise on Evidence at the Common Law 524 (1898).

oral evidence. See testimonial evidence. original evidence. (18c) 1. A witness's statement that he or she perceived a fact in issue by one of the five senses, or that the witness was in a particular physical or mental state. - Also termed direct evidence. Cf. HEARSAY. 2. See best evidence. parol evidence (p;:J-rohl or par-;:Jl). (18c) 1. Evidence of oral statements. [Cases: Criminal Law C=>447; Evidence C=>384-469.] 2. See extrinsic evidence (1). See PAROL-EVIDENCE RULE. partial evidence. (17c) Evidence that establishes one of a series of facts. personal evidence. See TESTIMONY.

positive evidence. See direct evidence (1).

preappointed evidence. (1850) Evidence prescribed in

advance (as by statute) for the proof of certain facts. preliminary evidence. (18c) Evidence that is necessary to begin a hearing or trial and that may be received conditionally in anticipation of other evidence linking it to issues in the case. Fed. R. Evid. 104. [Cases: Evidence C=> 117; Federal Civil Procedure C=>2014.] presumptive evidence. (17c) 1. Evidence deemed suf­ ficient to establish another fact unless discredited by other evidence. [Cases: Evidence C=>53-89.] 2. Archaic. Circumstantial evidence as distinct from testimonial evidence. - Also termed probable evidence. prima facie evidence (pn-m;:J fay-sh;:J). (18c) Evidence that will establish a fact or sustain a judgment unless

evidence

639

contradictory evidence is produced. [Cases: Evidence (>584(1).] -The legislative branch may create an evidential presump­ tion, or a rule of 'prima facie' evidence, i.e., a rule which does not shut out evidence, but merely declares that certain conduct shall suffice as evidence until the opponent produces contrary evidence." John H. Wigmore, A Students' Textbook of the Law of Evidence 237 (1935).

primary evidence. See best evidence. privileged evidence. (1897) Evidence that is exempt from production to an opposing party or tribunal (with certain, limited exceptions) because it is covered by one or more statutory or common-law protections, such as the attorney-client privilege. See privileged communication under COMMUNICATION. [Cases: Privileged Communications and Confidentiality 1,2,100.] probable evidence. See presumptive evidence. probative evidence (proh-b;Hiv). (1877) Evidence that tends to prove or disprove a point in issue. Cf. relevant evidence. [Cases: Criminal Law (>338; Evidence (> 99.] proffered evidence (prof-ard). (1904) 1. Evidence that is offered to the court to obtain a ruling on its admis­ sibility. 2. Evidence whose admissibility depends on the existence or nonexistence of a preliminary fact. [Cases: Evidence (::::, 117; Federal Civil Procedure C=J 2011.] proper evidence. See admissible evidence. prospectant evidence (pra-spek-tant). (1924) Evidence that, before someone does an act, suggests that the person might or might not do the act. • This evidence typically falls into any of five categories: (1) moral character or disposition, (2) physical and mental capacity, (3) habit or custom, (4) emotion or motive, and (5) plan, design, or intention. Queen's evidence. English law. Testimony provided by one criminal defendant, usu. under a promise of pardon, against another criminal defendant. - Also termed (when a king reigns) King's evidence. See state's evidence. real evidence. (17c) 1. Physical evidence (such as clothing or a knife wound) that itself plays a direct part in the incident in question. Also termed physical evidence. [Cases: Criminal Law (>405; Evidence C=:: 188.] 2. See demonstrative evidence. "Anything which is believed for any other reason than that someone has said so, is believed on real evidence." John Salmond, jurisprudence 480 (Glanville L. Williams ed., 10th ed. 1947).

rebuttal evidence. (1859) Evidence offered to disprove or contradict the evidence presented by an opposing party.• Rebuttal evidence is introduced in the rebut­ ting party's answering case; it is not adduced, e.g., through cross-examination during the case-in-chief of the party to be rebutted. Also termed rebutting evidence. [Cases: Criminal Law (>683; Federal Civil Procedure C=~)2015; Trial

relevant evidence. (18c) Evidence tending to prove or disprove a matter in issue.• Relevant evidence is both probative and material and is admissible unless excluded by a spedfic statute or rule. Fed. R. Evid. 401-403. - Also termed competent evidence. Cf. material evidence; probative evidence. [Cases: Criminal Law C~ 338; Evidence reputation evidence. (1888) Evidence of what one is thought by others to be .• Reputation evidence may be introduced as proof of character when character is in issue or is used circumstantially. Fed. R. Evid. 405(a). - Also termed reputalional evidence. Cf. character evidence. [Cases: Criminal Law C::;:)375; Evidence C;;) 106; Witnesses retrospectant evidence (re-tra-spek-t<Jnt). (1929) Evidence that, although it occurs after an act has been done, suggests that the alleged doer of the act actually did it <when goods have been stolen, and the thief is sought, a person's later possession of those goods amounts to retrospectant evidence that this person took them >. - Also termed traces. satisfactory evidence. (l7c) Evidence that is sufficient to satisfy an unprejudiced mind seeking the truth. ­ Also termed sufficient evidence; satisfactory proof [Cases: Evidence (::::'584(1).] scientific evidence. (17c) Fact or opinion evidence that purports to draw on specialized knowledge of a science or to rely on scientific principles for its evi­ dentiary value. See DAUBERT TEST. [Cases: Criminal Law (::::>388; Evidence C=:: 150,505-574.] secondary evidence. (17c) Evidence that is inferior to the primary or best evidence and that becomes admissible when the primary or best evidence is lost or inaccessible.• Examples include a copy of a lost instrument or testimony regarding a lost instrument's contents. - Also termed mediate evidence; mediate testimony; substitutionary evidence. See Fed. R. Evid. 1004. Cf. best evidence. [Cases: Criminal Law ~~398, 403; Evidence secondhand evidence. See HEARSAY. secret evidence. (1983) Classified information that may be used against a defendant in an immigration proceeding but withheld from the defendant, the defendant's lawyer, and the public on national-secu­ rity grounds .• The use of secret evidence was made easier under the Anti-Terrorism and Effective Death Penalty Act of 1996. [Cases: Aliens, Immigration, and Citizenship signature evidence. Highly distinctive evidence of a person's prior bad acts .• While ordinarily inad­ missible, signature evidence will be admitted if it shows, for example, that two crimes were committed through the same planning, design, scheme, or modus operandi, and in such a way that the prior act and the current act are uniquely identifiable as those of the defendant. See Fed. R. Evid. 404(b). [Cases: Criminal Law (>369.15; Evidence (> 129(5), 133.]

640

evidence by inspection

slight evidence. (ISc) A small quantity of evidence; esp., the small amount of evidence sufficient to remove a presumption from a case or for a rational fact-finder to conclude that something essential has not been established beyond a reasonable doubt. See SLIGHT­ EVIDENCE RULE.

state's evidence. (1SS6) Testimony provided by one criminal defendant - under a promise of immunity or reduced sentence - against another criminal defendant. See TURN STATE'S EVIDENCE. substantial evidence. (17c) 1. Evidence that a rea­ sonable mind could accept as adequate to support a conclusion; evidence beyond a scintilla. See SUB­ STANTIAL-EVIDENCE RULE. [Cases: Administrative Law and Procedure ~791; Evidence ~597.] 2. The product of adequately controlled investigations, including clinical studies, carried out by qualified experts that establish the effectiveness of a drug under FSA regulations. 21 USCA § 355(e). substantive evidence (s;}b-st;}n-tiv). Evidence offered to help establish a fact in issue, as opposed to evidence directed to impeach or to support a witness's credibil­ ity.[Cases: Criminal Law~337; Evidence ~266.] substitutionary evidence. See secondary evidence. sufficient evidence. See satisfactory evidence. tainted evidence. (IS76) Evidence that is inadmissi­ ble because it was directly or indirectly obtained by illegal means. See FRUIT-OF-THE-POISONOUS-TREE DOCTRINE. [Cases: Criminal Law ~394; Evidence ~154.]

tangible evidence. Physical evidence that is either real or demonstrative. See demonstrative evidence; real evidence. testimonial evidence. (1S31) A person's testimony offered to prove the truth ofthe matter asserted; esp., evidence elicited from a witness. - Also termed com­ municative evidence; oral evidence. Cf. demonstrative evidence. [Cases: Trial ~43.] "An assertion is testimonial evidence whether made out of court or in court, if it is offered with a view to persuading the tribunal of the matter asserted." John H. Wigmore, A Students' Textbook of the Law of Evidence 120 (1935).

traditionary evidence. (1Sc) Evidence derived from a deceased person's former statements or reputation.• Traditionary evidence is admissible to prove ancestry, ancient boundaries, or similar facts, usu. when no living witnesses are available to testify. [Cases: Bound­ aries ~35(2); Evidence ~274, 302.] unwritten evidence. (ISc) Evidence given orally, in court or by deposition. evidence by inspection. See demonstrative evidence under EVIDENCE. evidence code. A relatively comprehensive set of statu­ tory provisions or rules governing the admissibility of evidence at hearings and trials. evidence of debt. See SECURITY (4). evidence of indebtedness. See SECURITY (4).

evidence of insurability. Information - such as medical records or a medical examination - that an insurer may require to establish a potential insured's qualifi­ cation for a particular insurance policy. [Cases: Insur­ ance ~2052.] evidence of title. (17c) The means by which the own­ ership of land is satisfactorily demonstrated within a given jurisdiction. See DEED (2), (3). [Cases: Property ~9.] "There are four kinds of evidence of title: abstract and opinion, certificate oftitle, title insurance and Torrens cer­ tificate. The certificate of title is used extenSively in the Eastern states, and some Southern states. In urban centers in a great many sections of the country, title insurance occupies a dominant position in real estate transactions. In farm areas the abstract and opinion method is common. To a great extent, the acceptability of a particular kind of evidence of title depends on the local custom." Robert Kratovil, Real Estate Law 170 (6th ed. 1974).

evidence rules. See EVIDENCE (4). evidencing feature. Evidence. A group of circumstances that, when taken as a whole, form a composite feature that can be reliably associated with a single object.• This term appears more frequently in criminal cases than in civil. In criminal cases, it usu. refers to evidence that establishes a perpetrator's identity, but in civil cases it often refers to evidence that an event did or did not occur. - Also termed evidencing mark; evi­ dential mark. evidencing mark. See EVIDENCING FEATURE. evidentia (ev-i-den-shee-;}), n. [Law Latin] Evidence. evidential, adj. Of, relating to, relying on, or constituting evidence; EVIDENTIARY (1). evidential fact. See evidentiary fact (2) under FACT. evidential mark. See EVIDENCING FEATURE. evidentiary (ev-i-den-sh;}-ree), adj. (1SlO) 1. Having the quality of evidence; constituting evidence; evidencing. 2. Pertaining to the rules of evidence or the evidence in a particular case. evidentiary fact. See FACT. evidentiary hearing. See HEARING. evince, vb. (17c) To show, indicate, or reveal . evocation (ev--:>224-228.] 2. Bankruptcy. The questioning of a debtor, esp. at the first meeting of cred­ itors, concerning such matters as the bankrupt's debts and assets. [Cases: BankruptcyC=>3040.]3. An inquiry made at the U.S. Patent and Trademark Office, upon application for a patent, into the alleged invention's novelty and utility, and whether it interferes with any other pending application or in-force patent. [Cases: Patents 104.] 4. Banking. The government's fact­ finding mechanism for determining the soundness of a bank's finances and management. [Cases: Banks and Banking 17,235.] 5. Insurance. A periodic investi­ gation by a state insurance commission into the affairs and soundness of an insurance company licensed in that state. [Cases: Insurance 1048.] preliminary examination. Patents. A patent office's initial review of an application, usu. to see whether the specification is properly set out and to prepare a search report. Patents C-~ 104.]

examining board

4. PRELIMINARY HEARING. 5. A test, such as a bar exam­ ination. examination before trial. See DEPOSITION (1). examination-in-chief. See DIRECT EXAMINATION. examination on the voir dire. See VOIR DIRE. examination pro interesse suo (proh in-t1795-1799.] - execute, vb. execution clause. The part ofa deed containing the date, seal (if required), and signatures of the grantor, grant­ or's spouse, and witnesses. [Cases: Deeds (;=:44-53.] execution creditor. See CREDITOR. executione facienda in withernamium (ek-s26.] 2. A corporate officer at the upper levels of manage­ ment. Also termed executive officer; executive employee. executive, adj. executive administration. Collectively, high public officials who administer the chief departments of the government. executive agency. An executive-branch department whose activities are subject to statute and whose con­ tracts are subject to judicial review. _ One example is the National Aeronautics and Space Agency. [Cases: Administrative Law and Procedure (~~301-513; United States executive agreemeut. (1942) An international agree­ ment entered into by the President, without approval by the Senate, and usu. involving routine diplomatic or military matters. Cf. TREATY (1). [Cases: United States (;:::>28.] executive board. See BOARD OF DIRECTORS. executive branch. (ISc) The branch of government charged with administering and carrying out the la,v; EXECUTIVE (1). Cf. JUDICIAL BRANCH; LEGISLATIVE BRANCH.

executive clemency. See CLEMENCY. executive committee. See COMMITTEE. executive department. See EXECUTIVE (1). executive director. A salaried employee who serves as an organization's chief administrative and operating officer and heads its profeSSional staff. - Also termed executive secretary; staffdirector. executive employee. An employee whose duties include some form of managerial authority and active partici­ pation in the control, supervision, and management of the business. Often shortened to executive. executive immunity. See IMMUNITY (1). executive officer. See EXECUTIVE (2). executive order. (1862) An order issued by or on behalf of the President, usu. intended to direct or instruct the actions of executive agencies or government officials, or to set policies for the executive branch to follow. Abbr. ex. ord. [Cases: United States (;:::>28.]

executor

executive pardou. See PARDON. executive power. (17c) Constitutional law. The power to see that the laws are duly executed and enforced. - Under federal law, this power is vested in the Presi­ dent; in the states, it is vested in the governors. The President's enumerated powers are found in the U.S. Constitution, art. II, § 2; governors' executive powers are provided for in state constitutions. The other two great powers of government are the legislative power and the judicial power. [Cases: Constitutional Law ~'= 2620-2626.] executive privilege. See PRIVILEGE (3). executive right. Oil & gas. The exclusive right to lease specified land or mineral rights. _ The executive right is one of the incidents of the mineral interest. [Cases: Mines and Minerals executive secretary. See EXECUTIVE DIRECTOR. executive session. See SESSION (1). executor, n. (l3c) 1. (ek-s7.] 3. Insurance. The probable number of years in one's life. See LIFE EXPECTANCY. expectancy damages. See expectation damages under DAMAGES.

expectancy table. See ACTUARIAL TABLE. expectant, adj. (14c) Having a relation to, or being dependent on, a contingency; CONTINGENT. expectant beneficiary. See expectant distributee under DISTRIBUTEE.

expectant distributee. See DISTRIBUTEE. expectant estate. See FUTURE INTEREST. expectant heir. See HEIR. expectant right. See RIGHT. expectation, n. (16c) l.lhe act oflooking forward; antic­ ipation. 2. A basis on which something is expected to happen; esp., the prospect of receiving wealth, honors, or the like. "[E]xpectation does not in itself amount to intention. An operating surgeon may know very well that his patient will probably die of the operation; yet he does not intend the fatal consequence which he expects. He intends the recovery which he hopes for but does not expect." John

Salmond, Jurisprudence 379-80 (Glanville L Williams ed., 10th ed. 1947).

expectation damages. See DAMAGES. expectation interest. See INTEREST (2). expectation ofHfe. See LIFE EXPECTANCY. expectation of privacy. (1965) A belief in the existence of the right to be free ofgovernmental intrusion in regard to a particular place or thing.• To suppress a search on privacy grounds, a defendant must show the existence of the expectation and that the expectation was reason­ able. [Cases: Searches and Seizures e:-~26.] expected/intended exclusion. See EXCLUSION (J). expediente (ek-sped-ee-en-tee), n. [Spanish] Spanish law. 1. The papers or documents constituting a grant or title to land from the government; esp., a historical record of proceedings relating to a grant of land by the sov­ ereign. 2. A legal or administrative case file; esp., the official record ofall filings and orders in a lawsuit. 3. A maneuver intended to achieve a particular result. expediment (ek-sped-a-m;mt), n. (1848) The whole of one's goods and chattels. expedited proceeding. See SHOW-CAUSE PROCEEDING. expeditio brevis (ek-sp3338.] extraordinary expense. (l6c) An unusual or infre­ quent expense, such as a write-off of goodwill or a large judgment. • As used in a constitutional pro­ vision authoriZing a state to incur extraordinary expenses, the term denotes an expense for the general welfare compelled by an unforeseen condition such as a natural disaster or war. Also termed extraor­ dinary item. fixed expense. See fixed cost under COST. funeral expense. (usu. pi.) (I8c) An expense necessarily and reasonably incurred in procuring the burial, cre­ mation, or other disposition of a corpse, including the funeral or other ceremonial rite, a casket and vault, a monument or tombstone, a burial plot and its care, and a visitation (or wake). [Cases: Cemeteries 18; Dead Bodies C=2.] general administrative expense. (usu. pl.) (1907) An expense incurred in running a business, as distin­ gUished from an expense incurred in manufacturing or selling; overhead .• Examples include executive and clerical salaries, rent, utilities, and legal and accounting services. - Also termed administrative expense; general expense. - Abbr. G & A. medical expense. (1853) 1. An expense for medical treatment or healthcare, such as drug costs and health-insurance premiums .• Medical expenses are tax-deductible to the extent that the amounts (less insurance reimbursements) exceed a certain per­ centage of adjusted gross income. [Cases: Internal Revenue C=' 3366.] 2. (usu. pi.) In dvillitigation, any one of many possible medical costs that the plaintiff has sustained or reasonably expects to incur because of the defendant's allegedly wrongful act, including charges for visits to physicians' offices, medical pro­ cedures, hospital bills, medicine, and recuperative therapy needed in the past and in the future. - Often shortened (in pI.) to medicals. moving expense. (1903) An expense incurred in changing one's residence .• If incurred for business reasons (as when one's job requires relocation), most moving expenses are tax-deductible. [Cases: Internal Revenue (;::::: 3367.]

experimental-use defense

operating expense. (1861) An expense incurred in running a business and producing output. - Also termed current expense. ordinary and necessary expense. (1826) An expense that is normal or usual and helpful or appropriate for the operation of a particular trade or business and that is paid or incurred during the taxable year. • Ordinary and necessary expenses are tax-deduct­ ible. - Also termed ordinary and necessary business expense. [Cases: Internal RevenueC=3318.) organizational expense. (1941) An expense incurred while setting up a corporation or other entity. out-of-pocket expense. (1905) An expense paid from one's own funds. prepaid expense. (1919) An expense (such as rent, interest, or insurance) that is paid before the due date or before a service is rendered. travel expense. (1905) An expense (such as for meals, lodging, and transportation) incurred while away from home in the pursuit of a trade or business. See TAX HOME. [Cases: Internal Revenue C=3339.] expense loading. See LOADING. expense ratio. Accounting. The proportion or ratio of expenses to income. expenses ofadministration. (18c) Expenses incurred by a decedent's representatives in administering the estate. [Cases: Executors and Administrators C-~ 108.] expenses of receivership. (I8c) Expenses incurred by a receiver in conducting the business, including rent and fees incurred by the receiver's counsel and by any master, appraiser, and auditor. [Cases: Receivers (;::; 154.] expense stop. (1990) A lease provision establishing the maximum expenses to be paid by the landlord, beyond which the tenant must bear all remaining expenses. expensilatio (ek-spen-sr-lay-shee-oh), n. [Latin] Roman law. An entry to the debit of one party in the account book of another party, esp. as part of a literal contract. See literal contract (1) under CONTRACT. PI. expensila­ tiones (ek-spen-sI-Iay-shee·oh-neez). expensis militum non levandis (ek-spen-sis mi-lit-260.] experimental-use exception. Patents. An exception to the public-use statutory bar, whereby an inventor is allowed to make public use of an invention for more than one year when that use is necessary to test and improve the invention. [Cases: Patents (;::::>75.] expert, n. (l6c) A person who, through education or experience, has developed skill or knowledge in a par­ ticular subject, so that he or she may form an opinion that will assist the fact-finder. Fed. R. Evid. 702. See DAUBERT TEST. [Cases: Criminal Law (;:::::0478-480; Evidence C-~534.5-546.] expertise (ek-spar-teez),

n. consulting expert. (1897) An expert who, though retained by a party, is not expected to be called as a witness at trial. _ A consulting expert's opinions are generally exempt from the scope of discovery. Fed. R. Civ. P. 26(b)(4)(B). Also termed nontestifying 1266; expert. [Cases: Federal Civil Procedure Pretrial Procedure impartial expert. (1870) An expert who is appointed by the court to present an unbiased opinion. - Also termed court-appointed expert. Fed. R. Evid. 706. [Cases: Federal Civil Procedure (;:::::0 1951; Trial 18.] testifying expert. (1952) An expert who is identified by a party as a potential witness at trial. - As a part of initial disclosures in federal court, a party must provide to all other parties a wide range of informa­ tion about a testifying expert's qualifications and opinion, including all information that the witness considered in forming the opinion. Fed. R. Civ. P. 26(a)(2)(b). [Cases: Federal Civil Procedure Pretrial Procedure expert evidence. See EVIDENCE. expert opinion. See OPINION (3). expert-reliance materials. Facts, documents, and other sources that provide data or information to an expert witness. _ Often shortened to reliance materials. [Cases: Criminal Law C-'-J486; Evidence C:::-:> 155.] expert testimony. See expert evidence under EVIDENCE. expert witness. See WITNESS. expert-witness fee. See FEE (1). ex pietate (eks pI-a-tay-tee). [Latin] Hist. From natural affection and duty. expilare (eks-pa-Iair-ee), vb. [Latin] Roman law. In the law of inheritance, to spoil; to rob; to plunder. See CRIMEN EXPILATAE HEREDITATIS. expilatio (eks-pd-Iay-shee-oh), n. [Latin] Roman law. The offense of unlawfully appropriating goods belong­ ing to a succession .• This offense was not technically theft (furtum) because the property belonged to neither the decedent nor an heir, since the latter had not yet taken possession. PI. expilationes (eks-pd-lay-shee-oh­ neez). - Also termed expilation.

660

expilator (eks-pa-Iay-tar), n. [Latin] Roman law. A robber; a spoiler or plunderer. See EXPILATlO. expiration, n. A coming to an end; esp., a formal termi­ nation on a closing date <expiration of the insurance policy>. - expire, vb. expiration date. (1803) The date on which an offer, option, or the like ceases to exist. - Also termed expiry date. expiry date. See EXPIRATION DATE. expiry of the legal. Scots law. The end of the period during which a debtor can redeem land awarded to a creditor by paying off the debt. explanatory-phrase rule. Trademarks. The principle that a senior user of a family-name trademark is entitled to a judicial remedy for unfair competition if the same family name appears on competing goods or services, the remedy being that the junior user must include on signs, labels, and advertisements an explanation that the company is not affiliated with the senior user's company. _ The rule resolves two conflicting princi­ ples: (1) everyone has the right to use a family name in business, and (2) no one may use a family name in a way that unfairly hurts someone else's business. [Cases: Trademarks (;:::, 1526.] explecia (ek-splee-shee- 2781-2845.] ex post facto law. (18c) A law that impermissibly applies retroactively, esp. in a way that negatively affects a person's rights, as by criminalizing an action that was legal when it was committed. - Ex post facto criminal laws are prohibited by the U.S. Constitution. But ret­ rospective civil laws may be allowed. See RETROACTIVE LAW. [Cases: Constitutional Law C=='2781-2845.] exposure. (17c) The amount ofliability or other risk to which a person is subject .

dangerous exposure. Maritime law. Exposure that is reasonably foreseeable in the ordinary chances, mistakes, or hazards of navigation. exposure of person. See INDECENT EXPOSURE. exposure theory. Insurance. A theory of coverage pro­ viding that an insurer must cover a loss if the insurance

express contract. See CONTRACT. express dedication. See DEDICATION. express dissatisfaction. Wills & estates. A beneficiary's contesting of a will or objecting to any provision ofthe will in a probate proceeding. expressed, adj. (16c) Declared in direct terms; stated in words; not left to inference or implication.

expressio falsi (ek-spres[h]-ee-oh fal-sl or fawl-sI). [Latin] Rist. A false statement. - Such a statement might result in rescission of a contract. Cf. ALLEGATIO FALSI. expression, freedom of. See FREEDOM OF EXPRESSION.

expressio unius est exclusio alterius (ek-spres[h]-ee­ oh YOO-nI-;:lS est ek-skloo-zhee-oh al-ta-rI-;:ls). [Law Latin] A canon of construction holding that to express or include one thing implies the exclusion ofthe other, or ofthe alternative. _ For example, the rule that "each citiZen is entitled to vote" implies that noncitizens are not entitled to vote. - Also termed indusio unius est exdusio alterius; expressum fa cit cessare tacitum. Cf. EJUSDEM GENERIS; NOSCITUR A SOCIIS; RULE OF RANK. [Cases: Contracts C=> 152; Statutes ~ 195.] "Several Latin maxims masquerade as rules of interpre­ tation while doing nothing more than describing results reached by other means. The best example is probably expressio unius est exc/usio alter-ius, which is a rather elaborate, mysterious sounding, and anachronistic way of describing the negative implication. Far from being a

expressive association, freedom of

662

rule, it is not even lexicographically accurate, because it is simply not true, generally, that the mere express conferral of a right or privilege in one kind of situation implies the denial of the equivalent right or privilege in other kinds. Sometimes it does and sometimes it does not, and whether it does or does not depends on the particular circumstances of context. Without contextual support, therefore, there is not even a mild presumption here. Accordingly, the maxim is at best a description, after the fact, of what the court has discovered from context." Reed Dickerson, The Interpreta­ tion and Application ofStatutes 234-35 (1975). "The canon expressio unius est exc/usio alterius is ... based on the assumption of legislative omniscience, because it would make sense only if all omissions in legislative drafting were deliberate. Although this canon seemed dead for a while, it has been resurrected by the Supreme Court to provide a basis for refusing to create private remedies for certain statutory violations. Its recent disparagement by a unanimous Court [in Herman & MacLean v. Huddleston, 459 U.s. 375, 386 n.23, 103 S.O. 683, 690 n. 23 (1983)) puts its future in some doubt but more likely confirms that judicial use of canons of construction is opportunistic." Richard A. Posner, The Federal Courts: Crisis and Reform 282 (] 985).

expressive association, freedom of. See FREEDOM

OF

ASSOCIATION.

expressive crime. See CRIME. express malice. See MALICE. express notice. See NOTICE. express obligation. See conventional obligation under OBLIGATION.

express permission. See PERMISSION. express power. See enumerated power under

POWER

(3).

express private passive trust. See TRUST. express repeal. See REPEAL. express republication. (I8c) A testator's repeating of the acts essential to a will's valid execution, with the avowed intent of republishing the will. See REPUBLICA­ TION (2). [Cases: Wills C=> 197,199.] express trust. See TRUST. expressum facit cessare tacitum. See EXPRESSIO UNIUS EST EXCLUSIO ALTERIUS.

express waiver. See WAIVER (1). express warranty. See WARRANTY (2). expromissio (eks-pr;>-mis[h]-ee-oh), n. Roman law. A type of novation by which a creditor accepts a new debtor in place of a former one, who is then released. expromissor (eks-pr;>-mis-;>r), n. Roman law. One who assumes another's debt and becomes solely liable for it, by a stipulation with the creditor. expromittere (eks-pr2.] 2. A voluntary surrender of rights or claims; the act of renouncing or divest­ ing oneself of something previously claimed as one's own. expropriate, vb. expropriator, n. ex proprio motu (eks proh-pree-oh moh-tyoo). [Latin] Of one's own accord. ex proprio vigore (eks proh-pree-oh vi-gor-ee). [Latin) By their or its own force. ex provisione hominis (eks prnt), expunction (ek-spangk-shfTY (2). extended-term insurance. See LNSURANCE. extended warranty. See WARRANTY (2). extendi facias (ek-sten-dI fay-shee-ds). [Latin "you are to cause to be executed"] See EXTENT (3). extend the limits of debate. See EXTEND DEBATE. extension, n. (17c) 1. The continuation of the same contract for a specified period. Cf. RENEWAL (3). [Cases: Contracts C=>217, 242.J 2. Patents. A continuation of the life of a patent for an additional statutorily allowed period. [Cases: Patents C=> 133.] 3. Tax. A period of additional time to file an income-tax return beyond its due date. 4. A period of additional time to take an action, make a decision, accept an offer, or complete a task. [Cases: Internal RevenueC=>4474; Taxation 3539, 3688.] extend, vb. extension agreement. (1869) An agreement provid­ ing additional time for the basic agreement to be per­ formed. [Cases; Contracts C=>242.] extensive interpretation. See INTERPRETATION. extensores (ek-sten-sor-eez), n. pl. Hist. Officers appointed to appraise and divide or apportion land; extenders or appraisers. extent. Hist. 1. A seizure of property in execution of a writ. 2. A writ issued by the Exchequer to recover a debt owed to the Crown, under which the debtor's lands, goods, or body could all be seized to secure payment. Also termed writ of extent; extent in chief 3. A writ giving a creditor temporary possession of the debtor's property (esp. land). - Also termed extendi facias. extenta manerii (ek-sten-td ma-neer-ee-I). [Latin "the extent of a manor»] An English statute (4 Edw., St. 1) directing the making of a survey ofa manor and all its appendages. extent in aid. Hist. A writ that a Crown debtor could obtain against a person indebted to the Crown debtor so that the Crown debtor could satisfy the debt to the Crown.• This writ, haVing been much abused because ofsome peculiar privileges that Crown debtors enjoyed, was abolished in 1947 by the Crown Proceedings Act. extent in chief. See EXTENT (2). extenuate (ek-sten-yoo-ayt), vb. (16c) To make less severe; to mitigate. extenuating circumstance. See mitigating circumstance under CIRCUMSTANCE.

extenuation

extenuation lek-sten-yoo-ay-sh;:m), n. The act or fact of making the commission of a crime or tort less severe. extern. See CLERK (4). external act. See ACT. externality. (usu. pI.) (1957) A consequence or side effect of one's economic activity, causing another to benefit without paying or to suffer without compensation. ­ Also termed spillover; neighborhood effect.

negative externality. (1970) An externality that is det­

rimental to another, such as water pollution created by a nearby factory. positive externality. (1970) An externality that benefits another, such as the advantage received by a neigh­ borhood when a homeowner attractively landscapes the property. external obsolescence. See economic obsolescence under OBSOLESCENCE.

external sovereignty. See SOVEREIGNTY (3). exterritorial. See EXTRATERRITORIAL. exterritoriality. See EXTRATERRITORIALITY. exterus (ek-star-as), n. [Latin] A foreigner or alien; one born abroad. ex testamento (eks tes-ta-men-toh), adv. [Latin] By, from, or under a will or testament <succession ex tes­ tamento is the mode ofdevolution that the property of deceased persons ought primarily to follow>. Cf. AB INTESTATO.

extinct, adj. (15c) 1. No longer in existence or use. 2. (Of a debt) lacking a claimant. extinctive fact. See divestitive fact under FACT. extinctive prescription. See PRESCRIPTION (4). extinguish, vb. 1. To bring to an end; to put an end to. 2. To terminate or cancel. 3. To put out or stifle. extiuguishment, n. (16c) The cessation or cancellation of some right or interest. • For example, the extinguish­ ment of a legacy occurs when the item bequeathed no longer exists or no longer belongs to the testator's estate. extinguishment of copyhold. The destruction of copyhold by a uniting of freehold and copyhold inter­ ests in the same person and in the same right.• In England, under the 1922 Law of Property Act, copy­ holds were enfranchised and became either leasehold or, more often, freehold. See COPYHOLD. extinguishment oflegacy. See ADEMPTION. extinguishment of lien. (1800) A lien's discharge by operation oflaw. [Cases: Liens C==> 16.] extirpation (ek-st;>r-pay-shan), n. (16c) 1. The act of com­ pletely removing or destroying something. 2. Damage to land intentionally done by a person who has lost the right to the land. extirpatione (ek-star-pay-shee-oh-nee), n. [Latin] Hist. A writ issued either before or after judgment to restrain a person from maliciously damaging any house or

664 extirpating any trees on land that the person had lost the right to possess. extort, vb. (I5c) 1. To compel or coerce (a confession, etc.) by means that overcome one's power to resist. 2. To gain by wrongful methods; to obtain in an unlawful manner; to exact wrongfully by threat or intimida­ tion. extortive, adj. extortion, n. (14c) 1. The offense committed by a public official who illegally obtains property under the color of office; esp., an official's collection ofan unlawful fee. ­ Also termed common-law extortion. [Cases: Extortion and Threats 1.] "The dividing line between bribery and extortion is shadowy. If one other than the officer corruptly takes the initiative and offers what he knows is not an authorized fee, it is bribery and not extortion. On the other hand, if the officer corruptly makes an unlawful demand which is paid by one who does not realize it is not the fee authorized for the service rendered, it is extortion and not bribery. In theory it would seem possible for an officer to extort a bribe under such circumstances that he would be guilty of either offense whereas the outraged citizen would be excused." Rollin M. Perkins & Ronald N. Boyce, Criminal Law 538 (3d ed. 1982).

2. The act or practice of obtaining something or com­ pelling some action by illegal means, as by force or coercion. Also termed statutory extortion. [Cases: Extortion and Threats C==>25.1.] - extortionate, adj. "The distinction traditionally drawn between robbery by intimidation and blackmail or extortion is that a person commits robbery when he threatens to do immediate bodily harm, whereas he commits blackmail or extortion when he threatens to do bodily harm in the future." James Lindgren, "Blackmail and Extortion," in 1 Encyclopedia of Crime and Justice 115, 115 (Sanford H. Kadish ed., 1983).

extortionate credit transaction. See LOANSHARKING. extra (ek-stra), prep. [Latin] (1852) Beyond; except; without; out of; additional. extra allowance. In New York practice, a sum in addition to costs that may, in the court's discretion, be awarded to the successful party in an unusually difficult case. See ALLOWANCE (5). [Cases: Costs C==> 164(3).] extra commerdum (eks-tra ka-mar-shee-dm). [Latin] Outside commerce .• This phrase was used in Roman and civil law to describe property dedicated to public use and not subject to private ownership. extract (ek-strakt), n. 1. A portion or segment, as of a writing. 2. Scots law. See ESTREAT. extract (ek-strakt), vb. To draw out or forth; to pull out from a fixed position. extracta curiae (ek-strak-ta kyoor-ee-ee). Hist. The issues or profits of holding a court, arising from cus­ tomary dues, fees, and amercements. extraction. Intellectual property. The transfer of data from a database from the server where the database resides to a different computer or medium. '''Extraction' is something of a misnomer, given that the extracted contents will remain on the original database, and are accordingly copied from, not removed from, it. It is also somewhat Illogical that the contents must be removed to another medium. Removal to the same medium should

also constitute extraction," Ingrid Winternitz, Electronic Publishing Agreements 28 (2000).

extra curtem domini (eks-tr;l k3r-tem dom-;l-m). [Law Latin) Hist. Beyond the domain of the superior. _ A vassal was not usu. required to perform a service (such as transporting grain) beyond the superior's jurisdiction. extradite (ek-str;l-dIt), vb. (1864) 1. To surrender or deliver (a fugitive) to another jurisdiction. [Cases: Extradition and Detainers (;::::;4, 23.] 2. To obtain the surrender of (a fugitive) from another jurisdiction. extradition (ek-str;l-dish-"m). (18c) The official surrender of an alleged criminal by one state or nation to another haVing jurisdiction over the crime charged; the return of a fugitive from justice, regardless of consent, by the author­ 1t
es where the fugitive is found. Cf. RENDITION (2). international extradition. Extradition in response to a demand made by the executive of one nation on the executive of another nation. _ 1his procedure is generally regulated by treaties. [Cases: Extradition and Detainers (;::::; 1-20.] interstate extradition. Extradition in response to a demand made by the governor of one state on the governor of another state. _ This procedure is provided for by the U.S. Constitution, by federal statute, and bv state statutes. [Cases: Extradition and Detainers 021-42.] Extradition Clause. (1878) The clause of the u.s. Con­ stitution providing that any accused person who flees to another state must, on request of the executive authority of the state where the crime was committed, be returned to that state. U.S. Const. art. IV, § 2, d. 2. [Cases: Extradition and Detainers extradition treaty. (1847) A treaty governing the precon­ ditions for, and exceptions to, the surrender ofa fugitive from justice by the country where the fugitive is found to another country claiming criminal jurisdiction over the fugitive. [Cases: Extradition and Detainers extradition warrant. See WARRANT (1). extra dividend. See extraordinary dividend under DIVI­ DEND. extradotal property. See PROPERTY. extra-elements test. Intellectual property. A judicial test for determining whether a state-law claim is pre­ empted by federal intellectual-property statutes under the Sears-Compco doctrine, the criterion being that if the claim requires proof of an extra element that makes the action qualitatively different from an infringement action based on federal law, the state action is not pre­ empted. [Cases: States C== 18.84.] extra familiam (eks-tr;l f. Also termed out-oj-court. extrajudicial admission. See ADMISSION (1). extrajudicial confession. See CONFESSION. extrajudicial enforcement. See SELF-HELP. extrajudicial evidence. See EVIDENCE. extrajudicial oath. See OATH. extrajudicial opinion. See OPINION (1). extrajudicial remedy. See REMEDY. extrajudicial statement. (1838) Any utterance made outside of court. - It is usu. treated as hearsay under the rules of evidence. [Cases: Criminal Law (;:':419.] extra judicium (ek-str;l joo-dish-ee-;lm). [Latin] Extrajudicial; out of court; beyond the jurisdiction. extra jus (ek-stra j3S). [Latin] Beyond the law; more than the law requires. extralateral right. See APEX RGLE. extralegal, adj. (l7c) Beyond the province oflaw. extra legem (ek-str;llee-j;lm). [Latin] Out ofthe law; out of the protection of the law. extramural powers (ek-str;l-myuur-;ll). Powers exercised by a municipality outside its corporate limits. [Cases: MuniCipal Corporations C=::~57.J extranational, adj. Beyond the territorial and governing limits of a country. extraneous (ek-stray-nee-;ls), adj. See EXTRINSIC. extraneous evidence. See extrinsic evidence (1) under EVIDEKCE. extraneous offense. See OFFENSE (1). extraneous question. (1808) A question that is beyond or beside the point to be decided. extraneus (ek-stray-nee-as), n. & adj. [Latin "outside"] 1. Hist. A person who is foreign-born; a foreigner. 2. Roman law. An heir not born in the family of the testator; a citizen of a foreign state. extraordinary average. See AVERAGE. extraordinary care. See great care under CARE. extraordinary circumstances. See CIRCUMSTANCE. extraordinary danger. See extraordinary hazard_under HAZARD (1). extraordinary diligence. See DILIGENCE. extraordinary dividend. See DIVIDEND.

extraordinary expense

extraordinary expense. See EXPENSE. extraordinary flood. A flood whose occurrence is not predictable and whose magnitude and destructiveness could not have been anticipated or provided against by the exercise of ordinary foresight; a flood so unusual that a person of ordinary prudence and experience could not have foreseen it. See ACT OF GOD. extraordinary gain. See GAIN (3). extraordinary grand jury. See special grarld jury under GRAND JURY. extraordinary hazard. See HAZARD (1). extraordinary item. See extraordinary expense under EXPENSE. extraordinary loss. See LOSS. extraordinary majority. See supermajority under MAJORITY. extraordinary relief. See RELIEF. extraordinary remedy. See REMEDY. extraordinary rendition. See RENDITION. extraordiuary repair. (1828) As used in a lease, a repair that is made necessary by some unusual or unfore­ seen occurrence that does not destroy the building but merely renders it less suited to its intended use; a repair that is beyond the usual, customary, or regular kind. 150(l), 152(4).] [Cases: Landlord and Tenant extraordinary risk. See extraordinary hazard under HAZARD (1). extraordinary session. See special session under SESSION (I). extraordinary writ. See WRIT. extraparochial (ek-str~-Pd-roh-kee-~l), ad). Out of a parish; not within the bounds or limits of any parish. extra paternam jamiliam (eks-trd pd-tar-ndm f~-mil­ ee-dm). [Law Latin) Hist. Outside the father's family. Cf. INTRA PATERNAM FAMILIAM. extrapolate (ek-strap-d-Iayt), vb. (19c) 1. To estimate an unknown value or quantity on the basis of the known range, esp. by statistical methods. 2. To deduce an unknown legal principle from a known case. 3. To speculate about possible results, based on known facts. - extrapolative (-lay-tiv or -Id-tiv), extrapola­ tory (-ld-tor-ee), adj. extrapolator (-Iay-tdr), n. extrapolation (ek-strap-a-Iay-shdn), n. (19c) 1. The process of estimating an unknown value or quantity on the basis of the known range of variables. 2. The process by which a court deduces a legal principle from another case. 3. The process ofspeculating about possible results, based on known facts. extra praesentiam mariti (eks-trd pri-zen-shee-dm ma-rI-tI or mar-a-tIl. [Latin) Out of her husband's presence. extra quattuor maria (eks-trd kwah-too-ar mar-ee-d). [Latin] Beyond the four seas; out of the kingdom of England. _ 1be reference is to the seas surrounding Great Britain. The phrase was traditionally used when

666

explaining a husband's impossibility of access to his wife at the time of conception. extra regnum Ceks-trd reg-ndm). [Latin] Out of the realm. extras. Construction law. Contractual amendments in the nature of additions that were not originally part of the contract, requested by an owner of a building under construction. Cf. CHANGE ORDER (1). [Cases: Contracts extra session. See special session under SESSION (1). extraterritorial, ad). (19c) Beyond the geographic limits of a particular jurisdiction. - Also termed exterrito­ rial. [Cases: Courts C=>29.] extraterritoriality. (l9c) The freedom of diplomats, foreign ministers, and royalty from the jurisdiction of the country in which they temporarily reside. - Also termed exterritoriality. See diplomatic immunity under IMMUNITY (1). extraterritorial jurisdiction. See JURISDICTION. extraterritorial recognition of rights. See private inter­ national law under INTERNATIONAL LAW. extra territorium (eks-trd ter-d-tor-ee-dm). [Latin] Beyond or outside the territory. Extravagantes (ek-strav-d-gan-teez), n. pl. [Law Latin "wanderings"] Eccles. law. Papal constitutions and decretal epistles of Pope John xxn and certain of his successors.• These epistles were so called because they were not digested or arranged with the other papal decretals, but appeared detached from canon law. Ihe term remained even after the epistles were later included in the body of canon law. extra viam (eks-tra vI-dm). [Latin "out of the way"] A plaintiff's responsive pleading in a trespass action, asserting that the defendant's claim of a right-of-way across the plaintiff's land is not a defense to the action because the defendant strayed from the supposed right­ of-way. [Cases: Trespass C=>42.] extra vires (eks-trd VI-reez orveer-eez). See ULTRA VIRES. extra work. See WORK (1). extreme cruelty. See CRUELTY. extreme force. See deadlyforce under FORCE. extrinsic, adj. (I7c) From outside sources; of or relating to outside matters. - Also termed extraneous. extrinsic ambiguity. See latent ambiguity under AMBI­ GUITY. extrinsic evidence. See EVIDENCE. extrinsic fraud. See FRAUD. extrinsic test. Copyright. A test for determining whether two ideas or works are substantially similar by listing and analyzing like and unlike elements .• The test may be applied and decided by the trier oflaw rather than the trier of fact. Cf. INTRINSIC TEST. ex turpi causa (eks t;)r-pI kaw-zd). [Latin] From an immoral consideration .• This phrase, a shortened form

of the maxim ex turpi causa non oritur actio ("from an immoral consideration an action does not arise"), expresses the principle that a party does not have a right to enforce performance of an agreement founded on a consideration that is contrary to the public interest. [Cases: Action . eyewitness. (16c) One who personally observes an event. Cf. EARWITNESS. eyewitness identification. (I939) A naming or descrip­ tion by which one who has seen an event testifies from memory about the person or persons involved. eygne (ayn), n. See EIGNE. eyre (air). [Old French eire "journey, march"] 02c) Hist. A system ofroyal courts sent out into the counties by the Crown to investigate allegations of wrongdOing, to try cases, and to raise revenue for the Crown through the levy of fines. - The eyre system was abolished in the 13th century. See ARTICLES OF THE EYRE; JUSTICE IN EYRE. 'In 1176 the itinerant justices were organised into six circuits .... The justices assigned to these circuits, who numbered as many as twenty or thirty at a time in the 1180s, were known as justiciae errantes (later justidarU in itinere, justices in eyre); and the French word 'eyre' became the name of one of the most prominent forms of royal justice until the time of Edward III. Every so often a 'general eyre' would visit a county, bringing the kiog's government with it.... The general eyre, were not merely law courts; they were a way of supervising local government through itinerant central government." J.H. Baker, An Introduction to English Legal History 19 (3d ed. 1990)

eyrer (air-ar), vb. [Law French] (12c) Hist. To travel or journey; to go about.

F

F. 1. abbr. The first series of the Federal Reporter, which includes federal decisions (trial and appellate) from 1880 to 1924.2. Hist. A letter branded on a felon who claimed benefit of clergy so that the felon could claim the benefit only once.• Additionally, those convicted for an affray (fray) or falsity were so branded. "He that shall maliciously strike any person with a Weapon in Church or Churchyard. or draw any Weapon there with intent to strike, shall have one of his Ears cut off; and, if he have no Ears, then shall be marked on the Cheek with a hot Iron, having the Letter F, whereby he may be known for a Fray-maker or Fighter." Thomas Blount, Noma-Lexicon: A Law-Dictionary (1670).

"F, Is a Letter wherewith Feions, &c. are branded and marked with an hot Iron, on their being admitted to the Benefit of Clergy." Giles Jacob, A New Law-Dictionary (8th ed. 1762).

F.2d. abbr. The second series of the Federal Reporter, which includes federal appellate decisions from 1924 to 1993. F.3d. abbr. 'llie third series ofthe Federal Reporter, which includes federal appellate decisions from 1993. FAA. abbr. 1. FEDERAL AVIATION ADMINISTRATION. 2. FEDERAL ARBITRATION ACT. 3. FREE OF ALL AVERAGE. fabricare (fab-rd-kair-ee), vb. [Law Latin "to make"] Hist. 1. To make a coin lawfully or unlawfully, 2. To forge, esp. a bill oflading.• The term sometimes appeared in indictments:fabricavit et contrafecit ("[he] forged and counterfeited "). fabricate, vb. (15c) To invent, forge, or devise falsely.• To fabricate a story is to create a plaUSible version of events that is advantageous to the person relating those events. The term is softer than lie. See LIE (1). fabricated evidence. See EVIDENCE. fabricated fact. See fabricated evidence under EVIDENCE.

fabric land. See LAND. fabula (fab-Yd-Id). [Law Latin] Hist. A contract or covenant, esp. a nuptial contract. FAC. abbr. Failure to answer a (traffic) citation .• In some jurisdictions, ifsomeone fails to respond after receiving a ticket, the court notifies the relevant administrative agency, which records this information and suspends the defendant's driver's license until the FAC is vacated and any fines or fees are paid. FACE. abbr. FREEDOM OF ACCESS TO CLINIC ENTRANCES ACT.

face, n. (Be) 1. The surface of anything, esp. the front, upper, or outer part . 2. Byexten­ sion, the apparent or explicit part ofa writing or record . 3. The inscribed side of a document, instrument, or

judgment . face amount. 1. PAR VALUE. 2. Insurance. The amount payable under an insurance policy. - Also termed face

value;face amount insured by the policy;face ofpolicy. [Cases: Insurance (;:::>2037.] face-amount certificate. See STOCK CERTIFICATE (1). face-amount certificate company. See COMPANY. face-amount certificate ofthe installment type. See faceamount certificate (1) under STOCK CERTIFICATE (1). face amount insured by the policy. See FACE AMOUNT. face of policy. See FACE AMOUNT. face rate. See nominal rate under INTEREST RATE. face value. 1. FACE AMOUNT. 2. PAR VALUE. facial, adj. (19c) Apparent; of or relating to the face of things; prima facie . facial attack. (1966) A challenge to the sufficiency of a complaint, such as a motion to dismiss in federal practice. [Cases: Federal Civil Procedure (;:::> 1742(1); Federal Courts ~32.] facial challenge. See CHALLENGE (1). facially sufficient, adj, (1972) (Of a document) appearing valid on its face .• A search-warrant affidavit's facial sufficiency will not protect it from attack ifthe affidavit is based on false testimony by the officer making the affidavit. See FRANKS HEARING. facially void. See VOID. facias (fay-shee-<Js). [Law Latin] That you cause .• Facias is used in writs as an emphatic word. See FIERI FACIAS; LEVARI FACIAS; SCIRE FACIAS. It also appears in the phrase ut facias ("so that you do"). See DO UT FACIAS; FACIO UT DES; FACIO UT FACIAS.

facies (fay-shee-eez). (17c) [Latin] The outward appear­ ance or surface of a thing. fadle (jas-dl), ad). (l6c) Scots law. (Of a mentally deficient person) so susceptible to outside influence as to need legal protection (such as a guardian). facilitate, vb. (17c) Criminal law. To make the commis­ sion of a crime easier.• Property (such as a vehicle or home) that facilitates the commission of certain offenses may be forfeited. - facilitator, n. facilitated negotiation. See MEDIATION, facilitation, n. (l7c) 1. The act or an instance of aiding or helping; esp., in criminal law, the act of making it easier for another person to commit a crime. 2. CON­ CILIATION.

669

fact

facility and circumvention. Scots law. Conduct intended to persuade a person vulnerable to outside influence to act against his or her own interest. • Any contract brought under conditions of facility and circumvention would be void. ~. Sometimes shortened to facility. facility-of-paymentdause. 1. Insurance. An insurance­ policy provision allowing the appointment of a person to receive payment from the insurer on the beneficiary's behalf. [Cases: Insurance (:;::;J 3468.] 2. Trusts. A trust provision that allows anyone who owes money to an incapacitated trust beneficiary to discharge the debt by paying the money owed to the custodial trustee. facio ut des (fay-shee-oh 267.]2. A fact that constitutes the transaction or event on which a claim or defense is based. physicalfact. (1857) A fact having a physical existence, such as a fingerprint left at a crime scene. predicatefact (pred-J-kit). (1899) 1. A fact from which a presumption or inference arises. [Cases: Criminal Law (;:::>305.1; Evidence (;:::>53.] 2. A fact necessary to the operation of an evidentiary rule .• For example, there must actually be a conspiracy for the co-con­ spirator exception to the hearsay rule to apply. - Also termed foundational fact; evidentiary fact. [Cases: Evidence . 2. An agent who is employed to sell property for the principal and who possesses or controls

the property; a person who receives and sells goods for a commission .• A factor differs from a broker because the factor possesses or controls the property_ - Also termed commission merchant; del credere bailiff. Cf. BROKER. [Cases: Factors C:~) 1.] "A factor by the rules of common law and of mercantile usage is an agent to whom goods are consigned for the purpose of sale, and he has possession of the goods, power to sell them in his own name, and a general discretion as to their sale. He may sell them on the usual terms of credit, may receive the price, and give a good discharge to the buyer." William R. Anson, Principles of the Law of Contract 523 (Arthur L. Corbin ed., 3d Am. ed. 1919).

3. One who buys accounts receivable at a discount . [Cases: Factors 1,5.]4. A gar­ nishee . 2. Free ofbias or prejudice . fair, n. (Be) Hist. A privileged market for the buying and selling of goods.• A fair was an incorporeal heredita­ ment granted to a town by royal patent or franchise or established by prescription. The franchise to hold a fair conferred important privileges, and a fair, as a legally recognized institution, possessed distinctive legal char­ acteristics, most ofwhich are now obsolete. C( market overt under MARKET. fair-and-equitable requirement. (I7c) Bankruptcy. A Bankruptcy Code standard requiring a forced, non­ consensual Chapter 11 plan (a "cramdown" plan) to provide adequately for each class of interests that has not accepted the plan.• In determining whether a cramdown plan is fair and equitable and thus can be confirmed, a bankruptcy court must apply the Code's detailed statutory criteria, consider the plan as a whole, and weigh all the circumstances surrounding the treat­ ment of each impaired class of interests. In addition to the fair-and-equitable requirement, the Chapter 11 cramdown plan must (1) be accepted by at least one impaired class of claims, and (2) not discriminate unfairly among impaired classes that have not accepted the plan. 11 USCA § 1129{b). See CRAMDOWN. [Cases: Bankruptcy ~---:J 3563.] fair and impartial jury. See impartial jury under JURY. fair aud impartial trial. See FAIR TRIAL fair and proper legal assessment. See EQUALIZATION (2).

fair and reasonable value. See fair market value under VALUE (2).

fair and valuable consideration. See fair consideration (1) under CONSIDERATION (1). fair averaging. The process of assessing taxes by using the average of the amount and price of goods acquired over a 12-month period rather than the amount and price at a particular time of the year. fair cash market value. See fair market value under VALUE (2). fair cash value. See fair market value under VALUE (2). fair comment. (18c) A statement based on the writer's or speaker's honest opinion about a matter of public concern.• Fair comment is a defense to libel or slander. [Cases: Libel and Slander ~48(1).] fair competition. See COMPETITION. fair consideration. See CONSIDERATION (1). Fair Credit Billing Act. A federal law that facilitates the correction of billing errors by credit-card companies and makes those companies more responsible for the quality ofgoods purchased by cardholders. 15 USCA §§ 1666-1666j. [Cases: Consumer Credit C= 37.] j

fair-credit-reporting act. (1971) A federal or state law that regulates disclosure and use of consumer-credit information and ensures the right of consumers to have access to and to correct their credit reports. _ The federal Fair Credit Reporting Act was enacted in 1970. 15 USCA §§ 1681-1681u. - Abbr. FCRA. [Cases: Credit Reporting Agencies (;::0 1-4.] fair-cross-section requirement. (1975) Constitutional law. The principle that a person's right to an impartial jury, guaranteed by the Sixth Amendment, includes a requirement that the pool of potential jurors fairly represent the composition ofthe jurisdiction's popula­ tion.• The pool of potential jurors need not precisely match the composition of the jurisdiction. But the representation of each group must be fair - no group should be systematically excluded or underrepresented. A minimal disparity in a particular group's represen­ tation, such as an absolute disparity of 10%, will not ordinarily violate this principle unless some aggravat­ ing factor exists. See DUREN TEST; ABSOLUTE DISPAR­

equal-time doctrine. Cf. EQUAL TIME ACT. [Cases: Tele­ communications C=' 1153(2).J fair notice. See NOTICE. fair on its face. (l8c) (Of a document) having the appear­ ance of being regular or legal and not capable of being shown to be defective without extraneous evidence. fair persuasion. See PERSUASION. fair play. Equity, candor, and fidelity in dealings with another. fair play and substantial justice. (1945) The fairness requirement that a court must meet in its assertion of personal jurisdiction over a nonresident defendant to comport with due process. International Shoe Co. v. Washington, 326 U.S. 310, 66 S.C!. 154 (1945). See MINIMUM CONTACTS. [Cases: Constitutional Law 3964.] fair preponderance of the evidence. See PREPONDER­

ITY; COMPARATIVE DISPARITY; STATISTICAL-DECISION

fair presentation. 1. Commercial law. A materially accurate disclosure of a company's financial condition, achieved by selecting and using appropriate account­ ing policies, reasonably reflecting transactions that underlie the financial data, and making any additional necessary disclosures. 2. Criminal law. The require­ ment that an applicant for a writ of habeas corpus in a state's custody must show (1) he or she has exhausted all available remedies in the state courts, (2) the state has offered no corrective process, or (3) circumstances exist that render a state's corrective process insufficient to protect the applicant's rights. [Cases: Habeas Corpus

THEORY. [Cases: Jury (;::033(1.1).] fair dealing, n. (17c) 1. The conduct of business with full disclosure, usu. by a corporate officer with the corporation. [Cases: Corporations 316.] 2. A fiduciary's transacting ofbusiness so that, although the fiduciary might derive a personal benefit, all interested persons are fully apprised of that potential and of all other material information about the transaction. Cf. SELF-DEALING. 3. Canadian law. FAIR USE. Fair Debt Collection Practices Act. A federal statute that regulates debt-collection practices, and defines the rights of consumers who are contacted by debt collec­ tors. 15 USCA §§ 1692-1692p. - Abbr. FDCPA. [Cases: Antitrust and Trade Regulation (;:::)210.] fair hearing. See HEARIKG. Fair Labor Standards Act. A federal law, enacted in 1938, that regulates minimum wages, overtime pay, and the employment of minors. 29 USCA §§ 201-219. Abbr. FLSA. [Cases: Lahor and Employment C=;2217(2).] fairly-debatable rule. 1. Insurance. In some states, a test that requires an insurer to have a plausible basis for denying a claim to avoid bad-faith liability. [Cases: Insurance C=> 3336.J 2. Zoning. A doctrine that bars a court from interfering with a zoning decision that is supported by substantial evidence, although it is one on which reasonable minds can differ. - A court will not interfere with a decision supported by substantial evidence. [Cases: Zoning and Planning C:~602, 605, 703.] fair market price. See fair market value under VALUE

(2).

fair market value. See VALUE (2). fairness doctrine. (1965) Hist. A tederallaw, based on an FCC rule, requiring the broadcast media to furnish a reasonable opportunity for the discussion of conflicting views on issues ofpublic importance .• The FCC aban­ doned the fairness doctrine in 1987. Also termed

ANCE OF THE EVIDENCE.

(~::;'380.)

fair rate of return. See RATE OF RETURN. fair-report privilege. (1980) A defense to liability for publishing defamatory matter from a report of an official or judIcial proceeding, when the report is a full, fair, and accurate account of the proceeding. [Cases: Libel and Slander 42.] fair representation. Labor law. Union representation that adequately covers all union members in collective bargaining and in the lodging of grievances. [Cases: Labor and Employment C=:c 1208, 1209.] fair return on investment. See RETURN. fair sale. See SALE. fair-share membership. See FINANCIAL-CORE MEMBER­ SHIP.

fair trade, n. Commerce conducted under a fair-trade agreement. fair-trade agreement. (1937) A commercial agreement that a seller will sell all ofa producer's goods at or above a specified minimum price. - Fair-trade agreements were valid until 1975, when the Consumer Goods Pricing Act made them illegal. 15 USCA §§ 1, 45. fair-trade law. A state statute that protects and enforces fair-trade agreements .• At one time, many states had fair-trade laws. But when applied to interstate

676

fair trial

commerce, the laws may violate the Sherman Antitrust Act, so most states have repealed them. fair trial. (17c) A trial by an impartial and disinterested tribunal in accordance with regular procedures; esp., a criminal trial in which the defendant's constitutional and legal rights are respected. Also termed fair and impartial trial. fair use. (1869) Copyright. A reasonable and limited use ofa copyrighted work without the author's permission, such as quoting from a book in a book review or using parts of it in a parody. - Fair use is a defense to an infringement claim, depending on the following statu­ tory factors: (1) the purpose and character of the use, (2) the nature of the copyrighted work, (3) the amount of the work used, and (4) the economic impact ofthe use. 17 USCA § 107. - Also termed (in Canadian law) fair dealing. [Cases: Copyrights and Intellectual Property (';::53.2.] "[Fair use is] the most troublesome [problem] in the whole law of copyright." Del/or v. Samuel Goldwyn, Inc., 104 F.2d 661,662 (2d Or. 1939) (per curiam). "Fair use is a judicial safety valve, empowering courts to excuse certain quotations or copies of copyrighted material even though the literal terms of the Copyright Act prohibit them." Paul Goldstein, Copyright's Highway 84 (1994).

fair value. See fair market value under VALUE (2). fair-value accounting method. See ACCOUNTING METHOD.

fair-value law. A statute allowing a credit against a defi­ ciency for the amount that the fair market value ofland exceeds the price at foreclosure. - Also termed fair­ value legislation. [Cases: Mortgages (:-=>559(7), 56l.7.] fair warning. (1931) Criminal law. The requirement that a criminal statute define an offense with enough precision so that a reasonable person can know what conduct is prohibited and so that a reasonably skilled lawyer can predict what conduct falls within the stat­ ute's scope. Also termed fair notice. [Cases: Criminal Law (:::) 13.1.] fair wear and tear. See WEAR AND TEAR. fait (fay or fe). [Law French fro Latin factum] Anything done; an act or deed .• 'The term fait accompli (fay or fe td-kom-plee), meaning "a deed accomplished," which is not merely legal, is related to this word. fait enrolle (fay or fe ton-rohl). [Law French] Hist. An enrolled deed of a sale of a freehold estate. faith and trust. See FLIM FLAM. Faithfully Executed Clause. (1967) The clause of the U.S. Constitution providing that the President must take care that the laws are carried out faithfully. U.S. Const. art. II, § 3. [Cases: United States C=>26.] faith-healing exemption. Family law. In a child-abuse or child-neglect statute, a provision that a parent who provides a child with faith healing (in place of standard medical treatment) will not, for that reason alone, be charged with abuse or neglect. • Nearly all states have enacted some form of faith-healing exemption. But

the statutes differ greatly. For example, they differ on whether the exemption is available as a defense to manslaughter or murder charges brought against a parent whose child dies as a result of the parent's having refused to consent to medical treatment. - Also termed religious-exemption statute; spiritual-treatment exemption. Cf. medical neglect under NEGLECT. fake, n. (19c) Something that is not what it purports to be. See FORGERY (2); IMPOSTOR. fake, vb. (19c) To make or construct falsely. See COUN­ TERFEIT.

Falcidianlaw (fal-sid-ee-dn). (17c) Roman law. A law pre­ scribing that one could give no more than three-fourths of one's property in legacies and that the heirs should receive at least one-fourth (the Fakidian portion). - If the testator violated this law, the heir had the right to deduct proportionally from each legatee as necessary. The law, proposed by the Roman tribune Falcidius, was enacted in 40 B.C. - Also termed lex Falcidia. See LEGITIME.

"A large number of small legacies might [either] leave nothing for the heir ... [or] make his part so small as to seem valueless in his eyes. But a Falcidian law, passed in the year 40 B.C., put an end to the whole difficulty. This law secured to the heir a quarter of the net value of the estate; the legatees could obtain only three-quarters: if the legatees named in the will amounted to more than thiS, they were diminished by proportional reductions.... Few measures have accomplished their purpose more sat· isfactorily than the Falcidian law, which remained in force through the history of the empire, and holds an important place in the system ofJustinian." James Hadley, Introduction to Roman Law 321-22 (1881).

Falcidian portion. Roman law. The one-fourth part ofan estate that one or more instituted heirs are entitled to retain. La. Civ. Code art. 1494. - Also termed quarta Falcidiana. See forced heir under HEIR; LEGITIME. Cf. QUARTA TREBELLIANICA.

Falconer error. A trial court's failure to instruct the jury that a guilty finding on a manslaughter charge requires acquittal on a murder charge. Falconer v. Lane, 905 F.2d 1129 (7th Cir. 1990). faldage (fahl-dij), n. Hist. 1. A landowner's right to require tenants to graze their sheep in designated temporary folds so that the manure will fertilize the field. - Also termed foldage; fold soc. 2. A sum of money paid to the landowner by a sheep-owning tenant in lieu of keeping the animals in the landowner's tem­ porary fold. Also termed faidfee. faldfee (fahld-fee), n. Hist. See FALDAGE (2). faldworth (fahld-wdrth), n. Hist. A person who resides in a rural community where everyone above a certain age is responSible for the good conduct of all other members of the community and has reached that age of responsibility. _ This was part of the frankpledge system. See DECENARY; FRANKPLEDGE. fallacy. Any unsound, and usu. deceptive, argument or inference. _ Both "formal" and "material" fallacies occur in a variety of recognized categories, knowledge of which is fundamental in the analysis of the validity

677

false imprisonment

oflegal reasoning employed in any legal argument, esp. in judicial opinions. The presence of a fallacy in a legal argument is a defect often fatal and usu. deceptive - in the legal reasoning. formal fallacy. A fallacy involving flaws in the form of the argument, such as a violation of the formal rules of syllogistic reasoning. material fallacy. A fallacy involving flaws in the factual content of a logical argument. fallo (fahl-yoh), n. Spanish law. The mandate in a court's judgment; the dispositive sentence in a judicial pro­ nouncement. fall of the hammer. An auctioneer's closing of bidding .• Traditionally, an auctioneer bangs a hammer, gavel, or other object when bidding is closed. In some circum­ stances, such as online auctions, a verbal announcement that bidding is closed substitutes. [Cases: Auctions and Auctioneers falsa causa. See CAUSA (2). falsa demonstratio (fal-sa or fawl-sa dem-an-stray­ shee-oh). Roman law. A false designation; an erroneous description of a person or thing in a legal instrument. • Generally, a simple error in description, grammar, or spelling will not void an instrument or even a Single provision in it (such as a bequest by will). - Also termed false demonstration. falsa moneta (fal-8;> or fawl-sa m;>-nee-ta). Roman law. Counterfeit money. falsare (fal-sair-ee or fawl-), vb. [Law Latin] Hist. To counterfeit; to falsify. falsarius (fal-sair-ee-as or fawl-). [Law Latin] Hist. A counterfeiter. Also spelled falcarious. - Also termed falsonarius. false, adj. (12c) 1. Untrue . 2. Deceit­ ful; lying . 3. Not genuine; inauthentic .• What is false can be so by intent, by accident, or by mistake. false, vb. 1. Scots law. To make or prove false. 2. Archaic. FALSIFY

(1).

false action. See FEIGNED ACTION. false advertising, n. (1911) 1. The tortious and some­ times criminal act of distributing an advertisement that is untrue, deceptive, or misleading; esp., under the Lanham Trademark Act, an advertising statement that tends to mislead consumers about the characteristics, quality, or geographic origin of one's own or someone else's goods, services, or commercial activity.• Under § 43(a) of the Lanham Act, false advertising is actionable by anyone who reasonably believes that he or she has been or is likely to be damaged by the statement. An exaggerated opinion ("puffing") is an immaterial state­ ment and therefore not actionable. [Cases: Antitrust and Trade Regulation (>21,163; Fraud (> H(l).] 2. At common law, a statement in a defendant's advertising about its own goods or services intended to deceive or confuse customers into buying those goods or services

instead of the plaintiff's, and causing actual damage to the plaintiff, esp. the loss of sales. - Also termed (in both senses) deceptive advertising. false answer. See ANSWER (1). false arrest. See ARREST. false-association claim. Intellectual property. A claim based on the wrongful use ofa distinctive name, mark, trade dress, or other device to misrepresent sponsor­ ship, origin of goods or services, or affiliation.• The power to assert a false-association claim is not limited to trademark registrants. Any person who claims an injury caused by deceptive use of a trademark or its equivalent may have standing to bring suit. See 15 USC A § 112S(a)(l)(A). [Cases: Trademarks 1106, 1117, 1563.] false character. Hist. The crime of impersonating a ser­ vant's master or mistress. See IMPOSTOR. false check. See bad check under CHECK. false claim. An assertion or statement that is untrue; esp., overbilling. False Claims Act. A federal statute establishing civil and criminal penalties against persons who bill the govern­ ment falsely, deliver less to the government than rep­ resented, or use a fake record to decrease an obligation to the government. 18 USCA §§ 286-287; 31 USCA §§ 3729-3733.• The Act may be enforced either by the attorney general or by a private person in a qui tam action. See QUI TAM ACTION. [Cases: United States 120.] false conflict oflaws. See CONFLICT OF LAWS. false demonstration. See FALSA DEMONSTRATIO. false designation of origin. Trademarks. A mark, design, or similar element that creates a misleading or errone­ ous impression of a good or product's source. [Cases: Antitrust and Trade Regulation Trademarks C:::l1419.] false evidence. See false testimony under TESTIMONY. falsehood. 1. See LIE. 2. See PERJURY. false impersonation. See IMPERSONATION. false-implication libel. See LIBEL. false imprisonment. (l4c) A restraint of a person in a bounded area without justification or consent. • False imprisonment is a common-law misdemeanor and a tort. It applies to private as well as governmental detention. Cf. false arrest under ARREST. [Cases: False Imprisonment (>2, 43.] "[In the phrase false imprisonment,] false is ... used not in the ordinary sense of mendacious or fallaCiOUS, but in the less common though well-established sense of erroneous or wrong; as in the phrases false quantity, false step, false taste, etc." R.F.V. Heuston, Salmond on the Law of Tons 123 n.38 (17th ed. 1977). "False imprisonment was a misdemeanor at common law and is recognized by some states today. It differs from kid­ napping in that asportation is not required. If the imprison­ ment is secret, some jurisdictions treat it as kidnapping," Arnold H. Loewy, Criminal Law in a Nutshe.1I65 (2d ed, 1987).

false judgment "Some courts have described false arrest and false impris· onment as causes of action which are distinguishable only in terminology. The two have been called virtually indistinguishable, and identical. However, the difference between them lies in the manner in which they arise. In order to commit false imprisonment, it is not necessary either to intend to make an arrest or actually to make an arrest. By contrast. a person who is falsely arrested is at the same time falsely imprisoned." 32 Am. Jur. 2d False Imprisonment § 3 (1995).

false judgment. Hist. A writ filed to obtain review of a judgment of a court not of record. "After judgment given, a writ also of false judgment lies to the courts at Westminster to rehear and review the cause, and not a writ of error; for this is not a court of record ...." 3 William Blackstone, Commentaries on the Laws ofEngland 34 (1768).

false light. (1962) 1. Torts. In an invasion-of-privacy action, a plaintiff's allegation that the defendant attrib­ uted to the plaintiff views that he or she does not hold and placed the plaintiff before the public in a highly offensive and untrue manner. • Ifthe matter involves the public interest, the plaintiff must prove the defen­ dant's malice. See invasion ofprivacy byfalse light under INVASION OF PRIVACY. [Cases: Torts C:='352.] 2. (usu. pl.) Maritime law. A signal displayed intentionally to lure a vessel into danger. 18 USCA § 1658(b). - Also termed false light or signal. false making. See FORGERY (I). false-memory syndrome. The supposed recovery of memories of traumatic or stressful episodes that did not actually occur, often in session with a mental­ health therapist. • This term is most frequently applied to claims by adult children that repressed memories of prolonged and repeated child sexual abuse, usu. by parents, have surfaced, even though there is no independent evidence to substantiate the claims. Cf REPRESSED-MEMORY SYNDROME.

False Memory Syndrome Foundation. An organiza­ tion ofparents who claim that their adult children have falsely accused them ofchildhood sexual abuse .• The organization was formed for the purpose of aiding persons who claim to have been wrongly accused as a result of the recovery of repressed memories. - Abbr. FMSP. Cf VICTIMS OF CHILD ABUSE LAWS. false misrepresentation. See MISREPRESENTATION. • This phrase is redundant because misrepresentation includes the idea of falsity. false news. Hist. The misdemeanor of spreading false information that causes discord between the monarch and the people or between important people in the realm. 3 Edw., ch. 34. false oath. See PERJURY. false personation. See false impersonation under IMPER­ SONATION.

false plea. See sham pleading under PLEADING (1). false pretenses. (ISc) The crime of knowingly obtaining title to another's personal property by misrepresenting a fact with the intent to defraud.• Although unknown to

678 English common law, false pretenses became a misde­ meanor under a statute old enough to make it common law in the United States. Modern American statutes make it either a felony or a misdemeanor, depending on the property's value. - Also termed obtaining property by false pretenses; fraudulent pretenses. Cf. larceny by trick under LARCENY; EMBEZZLEMENT. [Cases: False 1.] Pretenses false promise. See PROMISE. false report. (1S27) Criminal law. The criminal offense of informing law enforcement about a crime that did not occur. [Cases: Obstructing Justice false representation. See MISREPRESENTATION. false return. (16c) 1. A process server's or other court official's recorded misrepresentation that process was served, that some other action was taken, or that something is true. See RETURN (2). [Cases: Process 132-144,153, 160.] 2. A tax return on which taxable income is incorrectly reported or the tax is incorrectly computed. See TAX RETURN. [Cases: Internal Revenue 44S0.J false statement. See STATEMENT. false swearing. See PERJURY. false testimony. See TESTIMONY. false token. See TOKEN. false verdict. See VERDICT. false weight. (usu. pl.) A weight or measure that does not comply with governmentally prescribed standards or with the prevailing custom in the place and business in which the weight or measure is used. [Cases: Weights and Measures C= 10.] falsi crimen. See crimen falSi under CRIMEN. falsify, vb. (1Sc) 1. To make something false; to counter­ feit or forge . - Also termed (archaically) false. See COUNTERfEIT; FORGERY. 2. Rare. To prove some­ thing to be false or erroneous 9.) family of marks. Trademarks. A group of trademarks that share a recognizable characteristic so that they are recognized by consumers as identifying a single source. • An example of a family of marks is the variety of marks beginning with Mc- and identifying items served at McDonald's restaurants. [Cases: Trademarks C=> 1060.) family of nations. Int'llaw. The community of countries to which international law applies .• This term is now obsolescent. It is increasingly rejected as Eurocentric. '''The family of nations' is an aggregate of States which, as the result of their historical antecedents, have inherited a common civilisation, and are at a similar level of moral and political opinion." Thomas E. Holland, The Elements of jurisprudence 396 (13th ed. 1924).

family partnership. See PARTNERSHIP. family-partnership rules. (1946) Laws or regulations designed to prevent the shifting of income among partners, esp. family members, who may not be dealing at arm's length. family-pot trust. See TRUST. family-purpose rule. (1927) Torts. The principle that a vehicle's owner is liable for injuries or damage caused by a family member's negligent driving .• Many states have abolished this rule. - Also termed family-pur­ pose doctrine;family-automobile doctrine;family-car doctrine. Cf. GUEST STATUTE. [Cases: AutomobilesC=> 195(5).) "A number of jurisdictions have adopted the so·called

'family purpose' doctrine, under which the owner of a motor vehicle purchased or maintained for the pleasure of his family is liable for injuries inflicted by the negligent operation of the vehicle while it is being used by members of the family for their own pleasure, on the theory that the vehicle is being used for the purpose or business for which it was kept, and that the person operating it is there­ fore acting as the owner's agent or servant in using it." 8 Am. Jur. 2d Automobiles and Highway Traffic § 715, at 296 (1997).

family reunification. See REUNIFICATION. family settlement. See FAMILY ARRANGEMENT. family shelter. See women's shelter under SHELTER. family support. A combined award ofchild support and alimony that does not apportion the amount of each. [Cases: BankruptcyC=>3365; Child Support C=> 140(1); Divorce C=>230; Internal Revenue C=>3288.)

681

farmoutee

Family Support Act of 1988. A federal statute requiring states to develop and implement child-support gUide­ lines. 42 USCA § 667. See CHILD-SUPPORT GUIDELINES. [Cases: Child Support C:142-148.] family trust. See TRUST. family violence. See domestic violence under VIOLENCE.

famosus (f53(7).) farminee. See FARMOUTEE. farming operation. (1859) Bankruptcy. A business engaged in farming, tillage of soil, dairy farming, ranching, raising of crops, poultry, or livestock, and production of poultry or livestock products in an unmanufactured state. 11 USCA § 101(21). See CHAPTER 12. [Cases: Bankruptcy (;=>2021.1.] farminor. See FARMOUTOR. farm let, vb. Hist. To lease; to let land for rent. • To farm let is a phrasal verb that commonly appeared in real­ property leases; it corresponds with its Latin root, ad firmam tradidi. "A lease is properly a conveyance of any lands or tene­ ments, (usually in consideration of rent or other annual recompense) made for life, for years, or at will, but always for a less time than the lessor hath in the premises: for if it be for the whole interest, it is more properly an assign­ ment than a lease. The usual words of operation in it are, 'demise, grant, and to farm let; dimisi, concessi, et ad firmam tradidi." 2 William Blackstone, Commentaries on the Laws of England 317-18 (1766).

farmor. See FARMOUTOR. farm out, vb. (17c) 1. To turn over something (such as an oil-and-gas lease) for performance by another. • The term evolved from the Roman practice oftransferring the right to collect taxes to a third party for a fee. That practice continued in England, Scotland, and France, but it has been long abolished. 2. Hist. To lease for a term. 3. To exhaust farmland, esp. by continuously raising a single crop. farmout agreement. Oil & gas. An agreement by which one who owns an oil-and-gas lease (the farmoutor or farmor) agrees to assign to another (the farmoutee or farmee) an interest in the lease in return for drilling and testing operations on the lease .• For the farmor, the agreement either (1) maintains the lease by securing production or complying with the implied covenant to develop or offset, or (2) obtains an interest in pro­ duction without costs. For the farmee, the agreement obtains acreage that is not otherwise available or at lower cost than would otherwise be possible. A farmout agreement may also serve as a device to keep people and equipment gainfully employed. Often short­ ened to farmout. - Also written farm out agreement; farm-out agreement. See ASSIGNMENT. [Cases: Mines and Minerals (;=>74(8).] farmoutee (fahrm-ow-tee). An oil-and-gas sublessee to whom the lease is assigned for purposes of drilling a

farmoutor

682

well. Also termedfarmee;farminee. [Cases: Mines and Minerals (;::::/74(8).] farmoutor (fahrm-ow-tor or -t 14.] fatherly power. See patria potestas under POTESTAS. Fatico hearing (fat-64.5.] federal act. A statute enacted by the U.S. Congress. See FEDERAL LAW.

federal agency. See AGENCY (3). federal appeal. See APPEAL. Federal Appendix. A set of reports containing all the full-text "unpublished" opinions that West receives from the federal circuit courts of appeals. - These are the opinions not designated for publication in the Federal Reporter. Coverage began January 1, 2001. Abbr. Fed. Appx. Federal Arbitration Act. A federal statute providing for the enforcement of private agreements to arbitrate disputes related to interstate commercial and maritime matters.• Under the Act, arbitration agreements are enforced in accordance with their terms, just as other contracts are. The Act supersedes substantive state laws that frustrate enforcement of arbitration agreements but does not apply to matters of procedure. 9 USCA §§ 1-16. Abbr. FAA. - Also termed United States Arbitration Act. [Cases: Alternative Dispute Resolu­ tion C=> 114.] Federal Aviation Act. A federal law establishing the Federal Aviation Administration (FAA) to be respon­ sible for regulation of aircraft and air travel, including aircraft safety, certification of aircraft personnel, and airport development. 49 USCA §§ 44720 et seq. [Cases: Aviation (;.;;)32.] Federal Aviation Administration. The federal agency charged with regulating air commerce, promoting civil aviation and a national system of airports, achieving efficient use of navigable airspace, developing and operating a common system of air-traffic control and air navigation, and developing and implementing programs and regulations relating to environmental effects ofcivil aviation.• The Federal Aviation Agency was established in 1958.49 USCA § 106. Its name was changed when it became a part of the Department of Transportation in 1967. The FAA was formerly charged with promoting safety in air transportation, but that task was transferred to the Transportation Security Administration after the terrorist attacks of 11 Sept. 2001. Abbr. FAA. - Formerly also termed Federal Aviation Agency. [Cases: Aviation Federal Aviation Regulation. (usu. pi.) A federal regu­ lation governing the safety, maintenance, and piloting of civil aircraft. 14 CFR ch. 1. - Abbr. FAR. [Cases: Aviation e=·123.l.j

Federal Deposit Insurance Corporation

Federal Bureau ofInvestigation. A division of the U.S. Department ofJustice charged with investigating all violations of federal laws except those speCifically aSSigned to another federal agency. Abbr. FBI. Federal Bureau of Prisons. The U.S. government unit responsible for the custody and care of federal offend­ ers, whether incarcerated in federal correctional and detention centers or in state-run or privately operated facilities.• The Bureau was established in 1930 to cen­ tralize federal-prison administration and ensure con­ sistency in prison operations. [Cases: Prisons federal census. See CENSUS. Federal Circuit. See COURT OF APPEALS FOR THE FEDERAL CIRCUIT.

federal citizen. See CITIZEN. Federal Claims, U.S. Court of. See

UNITED STATES

COURT OF FEDERAL CLAIMS.

federal-comity doctrine. (1976) The principle requir­ ing federal district courts to refrain from interfering in each other's affairs. [Cases: Federal Courts C=> 1143.] federal common law. See COMMON LAW (1). Federal Communications Commission. An indepen­ dent federal commission that regulates interstate and foreign communications by radio, television, wire, satellite, and cable.• The commission was created by the Communications Act of 1934.47 USCA §§ 151 et seq. Abbr. FCC. [Cases: Telecommunications 612.] Federal Computer Fraud and Abuse Act. A law estab­ lishing civil liability for gaining unauthorized access to a computer and causing damage to that computer. _ Damage is statutorily defined to include harm to the computer's data, programs, systems, and information either by compromising integrity or by impairing avail­ ability. Abbr. FCFAA. [Cases: Telecommunications C=>1342.] federal court. See COURT. federal crime. (1860) A criminal offense under a federal statute.• Most federal crimes are codified in Title 18 of the U.S. Code. Federal Crop Insurance Corporation. A federally char­ tered corporation that protects farmers against finan­ ciallosses from crop failure due to adverse weather conditions. insect infestation, plant disease, floods, fires, and earthquakes by encouraging the sale ofinsur­ ance through licensed agents and brokers and by rein­ suring private companies that issue insurance under brand names.• Created by the Agricultural Adjust­ ment Act of 1938. the Corporation operates under the general supervision of the Secretary of Agriculture. Abbr. FCrc. Federal Deposit Insurance Corporation. A federal corporation that protects bank and thrift deposits by insuring accounts up to $100,000, examining banks that are not members of the Federal Reserve System, and liquidating failed institutions .• It was established

Federal Election Commission

in 1933 and began insuring banks in 1934. - Abbr. FDIC. [Cases: Banks and Banking C=501-508.] Federal Election Commission. A ten-member inde­ pendent federal commission that certifies payments to qualifying presidential campaigns in primary and general elections and to national-nominating conven­ tions, audits campaign expenditures, and enforces laws requiring public disclosure of financial activities of presidential campaigns and political parties .• It was established by the Federal Election Campaign Act of 1971. 2 USCA § 437c. Abbr. FEC. [Cases: Elections C='309.] Federal Emergency Management Agency. A unit in the Department of Homeland Security responSible for coordinating all emergency-preparedness activities of the federal government through its ten regional offices. • FEMA also operates the National Flood Insurance Program and is responSible for fire protection and arson control. It was established as an independent agency by Executive Order 12127 of 31 Mar. 1979 and became a unit in the Department of Homeland Security in 2003. Abbr. FEMA. [Cases: United States C=82(5).j Federal Employees' Compensation Act. A workers'­ compensation law for federal employees. 5 USCA §§ 8101-8152 Abbr. FECA. See WORKERS' COMPENSA­ TION. [Cases: Workers' Compensation C=262, 374.] federal-employer-identification number. See TAX-IDEN­ TIFICATION NUMBER.

Federal Employers' Liability Act. A workers'-compen­ sat ion law that provides death and disability benefits for employees of railroads engaged in interstate and foreign commerce. 45 USCA §§ 51-60 - Abbr. FELA. [Cases: Labor and Employment ~2572; Workers' Compensation federal enclave. See ENCLAVE. Federal Energy Regulatory Commission. An indepen­ dent five-member commission in the U.S. Department of Energy responsible for licensing hydroelectric-power projects and for setting interstate rates on (1) transport­ ing and selling natural gas for resale, (2) transporting and selling electricity at wholesale, and (3) transport­ ing oil by pipeline. _ It was created by the Department ofEnergy Organization Act of 1977. As enforcer of the Natural Gas Act, it succeeded the Federal Power Com­ mission. - Abbr. FERC. [Cases: Electricity C= 1; Gas Federal Farm Credit Bank. One of a svstem of feder­ ally chartered institutions created to p~ovide credit to farm-related enterprises .• The banks resulted from a merger of federal land banks and federal intermediate credit banks. They are supervised by the Farm Credit Administration. [Cases: United States C-=>53(7).] Federal Farm Credit Banks Funding Corporation. A federal corporation that manages the sale of Federal Farm Credit System securities in the money and capital markets and also provides advisory services to banks in the Federal Farm Credit System.

686

Federal Farm Credit System. The national cooperative system of banks and associations providing credit to farmers, agricultural concerns, and related businesses. • The system consists of the banks for cooperatives, the farm credit banks, and the Federal Farm Credit Banks Funding Corporation. It is supervised by the Farm Credit Administration and was Originally capi­ talized by the federal government. The system is now self-funding and owned by its member-borrowers. [Cases: United States C=53(7).] Federal Food Stamp Act. A federally funded program that provides needy families with financial assistance in obtaining a nutritionally adequate diet. • The Secretary of Agriculture administers the Act. [Cases: Agricul­ ture~2.6.J

federal-funds rate. The interest rate at which banks lend to each other overnight. • ]he loans are usu. made by banks with excess reserves to those with temporarily insufficient reserves. Often shortened to fed funds. ­ Also termed fed-funds rate. federal government. See GOVERNMENT. Federal Highway Administration. An agency in the U.S. Department of Transportation responsible for granting aid to states for highway construction and improve­ ment; providing matching grants to states for highway­ safety programs; uniformity among the states in commercial motor-carrier registration and taxation; regulating the safety of motor carriers operating in interstate commerce; and training employees of state and local agencies engaged in highway work backed by federal aid. Abbr. FHWA. [Cases: Highways 99.1.] Federal Home Loan Bank. One of 12 federally char­ tered banks created in 1932 to extend secured loans (advances) to savings institutions that are members of the system and to community financial institu­ tions that finance small businesses, small farms, and small agribusinesses .• The banks are supervised by the Federal Housing Finance Board. - Abbr. FHLB. ­ Sometimes shortened to home loan bank. [Cases: Banks and Banking Federal Home Loan Bank Board. See FEDERAL HOUSING FINANCE BOARD.

Federal Home Loan Mortgage Corporation. A corpo­ ration that purchases both conventional and federally insured first mortgages from members of the Federal Reserve System and other approved banks. - Abbr. FHLMC. - Also termed Freddie Mac. Federal Housing Administration. The HCD division that encourages mortgage lending by insuring mortgage loans on homes meeting the agency's standards. Abbr. FHA. See DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT. [Cases: United States C:::>82(3.3).] Federal Housing Finance Board. A five-member independent federal board that supervises the 12 Federal Home Loan Banks.• Formerlv known as the Federal Home Loan Bank Board, it wa~ established by the Federal Home Loan Bank Act of 1932. That Act

was amended by the Financial Institutions Reform, Recovery, and Enforcement Act of 1989. 12 USCA §§ 1421 et seq. federal instrumentality, n. L A means or agency used by the national government. [Cases: United States 53.] 2. A national agency or other entity immune from state control. Federal Insurance Contributions Act. The federal act imposing the sOcial-security tax on employers and employees. IRC (26 USCA) §§ 3101-3127. Abbr. FICA. [Cases: Internal Revenue C=::>4376, 4377.] federal intermediate credit bank. See BANK. federalism. (1787) The legal relationship and distribution of power between the national and regional govern­ ments within a federal system of government. cooperative federalism. (1947) Distribution of power between the federal government and the states in which each recognizes the powers of the other while jointly engaging in certain governmental functions. [Cases: States C:::)4.19.] ourfederalism. See OUR FEDERALISM. Federalist Papers. A series of 85 essays written by Alex­ ander Hamilton, John Jay, and James Madison (under the pseudonym Publius) expounding on and advocat­ ing the adoption of the U.S. Constitution .• Most of the essays were published in 1787 and 1788. Also termed The Federalist. Federalist Society. A national association oflawyers, law students, and others committed to conservative and libertarian viewpoints on political and social matters .• The group is based in Washington, D.C. Cf. NATIONAL LAWYERS GUILD.

Federal Judicial Center. An agency in the judicial branch of the federal government responSible for research­ ing judicial administration and for training judges and employees of the federal judiciary.• Its director is appointed by a seven-member board presided over by the Chief Justice of the United States. 28 USCA § 620. - Abbr. FJC. Federal Judicial Code. The portion (Title 28) of the U.S. Code dealing with the organization, jurisdiction, venue, and procedures of the federal court system, as well as court personnel, and the Department of Justice. federal jurisdiction. See rURISDICTION. federal-juvenile-delinquency jurisdiction. See JURIS­ DICTION.

Federal Kidnapping Act. A federal law punishing kid­ napping for ransom or reward when the victim is trans­ ported interstate or internationally.• The law presumes that a victim has been transported in violation of the law if the victim is not released within 24 hours. The Federal Kidnapping Act, by express provision, does not apply to the kidnapping of a minor by either parent. The law was enacted in 1932 after the son of aviator Charles Lindbergh was kidnapped and murdered. For this reason, it is also termed the Lindbergh Act.

18 USCA § 1201. - Also termed Lindbergh Act. Cf. [Cases: Kid­ napping C=::> 14.]

PARENTAL KIDNAPPING PREVENTION ACT.

"The Federal Kidnapping Act was passed in 1932 to dose a dangerous loophole between state and federal law. At that time, marauding bands of kidnappers were preying upon the wealthy with ruthless abandon, seizing their victims for ransom while operating outside the reach of existing state laws. Knowing that authorities in the victim's home state were powerless once a hostage was transported across state lines, the criminals would kidnap their target in one state, then move quickly to the next. In response, Congress made kidnapping a federal crime when the victim was moved from one state to another, and comprehensive language was used to cover every possible variety of kid­ napping followed by interstate transportation." 1 Am. Jur. 2d Abduction and Kidnapping § 14, at 185 (1994).

Federal Labor Relations Authority. An agency that protects the right of federal employees to organize, engage in collective bargaining, and select their own union representatives .• It was established under Reor­ ganization Plan No.2 of 1978 and began operating in 1979.5 USCA §§ 7101-35. - Abbr. FLRA. [Cases: Labor and Employment c=::> 1650.] federal labor union. See UNION. federal land. See LAND. Federal Land Bank. (1914) One of a system of 12 regional banks created in 1916 to provide mortgage loans to farmers.• The system is now merged with federal inter­ mediate credit banks to create the Federal Farm Credit United System. [Cases: Banks and Banking States C=::>S3(7).] federal law. (18c) The body oflaw consisting of the U.S. Constitution, federal statutes and regulations, U.S. treaties, and federal common law. Cf. STATE LAW. Federal Law Enforcement Training Center. An inter­ agency law-enforcement training facility responsible for serving over 70 law-enforcement organizations in the federal government. • The Center was transferred from the Department of the Treasury to the Depart­ ment of Homeland Security in 2003. Abbr. FLETC. federal magistrate. UNITED STATES MAGISTRATE rUDGE.

Federal Maritime Commission. An independent federal agency that regulates the waterborne foreign and domestic commerce ofthe United States by (1) ensuring that U.S. international trade is open to all countries on fair and equitable terms, (2) guarding against unau­ thorized monopolies in U.S. waterborne commerce, and (3) ensuring that financial responsibility is main­ tained to clean up oil spills and indemnify injured pas­ sengers.• The Agency was established in 1961. Its five commissioners are appointed by the President with the advice and consent of the Senate. - Abbr. FMC. [Cases: Shipping C=::>3, 14.] Federal Maritime Lien Act. A statute that confers an automatic lien on anyone who provides a vessel with of a wide range of goods and services. 46 USCA - Abbr. FMLA. [Cases: Maritime Liens

Federal Mediation and Conciliation Service

Federal Mediation and Conciliation Service. An inde­ pendent federal agency that tries to prevent the inter­ ruption of interstate commerce that could result from a labor-management dispute by helping the parties reach a settlement without resorting to a job action or strike.• The Service can intervene on its own author­ ityor at the request of a party to the dispute. It also helps employers and unions select qualified arbitrators. The Service was established by the Labor Management Relations Act of 1947.29 USCA § 172. Abbr. FMCS. Cf. NATIONAL MEDIATION BOARD. Federal Mine Safety and Health Review Commis­ sion. An independent five-member commission that (1) monitors compliance with occupational safety and health standards in the nation's surface and under­ ground coal, metal, and nonmetal mines, and (2) adjudicates disputes that arise under the Federal Mine Safety and Health Amendments Act of 1977.• It was established in 1977.30 USCA §§ 801 et seq. -Abbr. FMSHRC. [Cases: Labor and Employment C=>2571.J Federal Motor Carrier Safety Administration. A unit in the U.S. Department of Transportation responsible for regulating the operation oflarge trucks and buses. Abbr. FMCSA. [Cases: Automobiles C=> 116, 127.] Federal National Mortgage Association. A privately owned and managed corporation chartered by the U.S. government that provides a secondary mortgage market for the purchase and sale of mortgages guaran­ teed by the Veterans Administration and those insured under the Federal Housing Administration. - Abbr. FNMA. Also termed Fannie Mae. [Cases: United States Federal Parent Locator Service. A federal program created to help enforce child-support obligations.• In an effort to increase the collection of child support, Congress authorized the use of all information con­ tained in the various federal databases to help locate absent, delinquent child-support obligors. Although initially information could be released only if the family was receiving public assistance, any judgment obligee can now apply to receive the last known address of a delinquent child-support obligor. 42 USCA § 653. Abbr. FPLS. Federal Power Commission. See FEDERAL ENERGY REG­ ULATORY COMMISSION.

federal preemption. See PREEMPTION (5). federal prison camp. A federal minimum-security deten­ tion facility.• Federal prison camps, which often do not have walls or fences, usu. house nonviolent inmates who are serving sentences shorter than a year plus one day and who are not considered escape risks. Federal Procurement Regulation. See FEDERAL ACQUI­ SITION REGULATION.

Federal Protective Service. A law-enforcement agency in the U.S. Department of Homeland Security respon­ sible for protecting ambassadors, diplomatic staffs, and embassy property.• It was transferred from the General Services Administration in 2003.

688

federal question. In litigation, a legal issue involving the interpretation and application of the U.S. Consti­ tution, an act of Congress, or a treaty.• Jurisdiction over federal questions rests with the federal courts. 28 USCA § 1331. [Cases: Federal Courts (;~ 161-247.] federal-question jurisdiction. See rURISDICTION. Federal Railroad Admiuistration. A unit in the U.S. Department of Transportation responsible for promul­ gating and enforcing rail-safety regulations; adminis­ tering rail-related financial-aid programs; conducting research on rail safety; and rehabilitating rail passen­ ger service for the Northeast corridor. Abbr. FRA. [Cases: RailroadsC=>223.] Federal Register. A daily publication containing presi­ dential proclamations and executive orders, federal­ agency regulations of general applicability and legal effect, proposed agency rules, and documents required by law to be published .• The Federal Register is pub­ lished by the National Archives and Records Adminis­ tration. - Abbr. Fed. Reg. [Cases: Administrative Law and Procedure 1450-1473.J

~300.J

federal transfer. The federal district court's right to move a civil action filed there to any other district or division where the plaintiff could have brought the action originally. 28 USCA § 1404(a). See CHANGE OF VENUE. [Cases: Federal Courts C=>101-146, 1152.] Federal Transit Administration. A unit in the U.S. Department of Transportation responsible for increas­ ing public-transit ridership through demonstration projects and financial assistance. - Abbr. FTA. Federal Unemployment Tax Act. The federal statute requiring employers to remit taxes based on employ­ ees' wages and salaries. 18 USCA § 1201 et seq. - Abbr. FUTA. [Cases: Internal Revenue C=>4351.] federation. (18c) A league or union of states, groups, or peoples united under a strong central authority but retaining limited regional sovereignty, esp. over local affairs. Cf. CONFEDERATION. fed funds. See FEDERAL FUNDS RATE. fed-funds rate. See FEDERAL FUNDS RATE. Fed. R. App. P. abbr. FEDERAL RULES OF APPELLATE PROCEDURE.

Fed. R. Bankr. P. abbr.

FEDERAL RULES OF BANKRUPTCY

PROCEDURE.

Fed. R. Civ. P. abbr.

FEDERAL RULES OF CIVIL PROCE­

DURE.

Fed. R. Crim. P. abbr.

FEDERAL RULES OF CRIMINAL

PROCEDURE.

Fed. Reg. abbr. FEDERAL REGISTER. Fed. R. Evid. abbr. FEDERAL RULES OF EVIDENCE. Fed Wire. The Federal Reserve's computer network that allows nearly instantaneous domestic money and securities transfers among the Federal Reserve's offices, depository institutions, the U.S. Treasury, and other government agencies. [Cases: Banks and Banking C=> 188.5.] fee. (14c) 1. A charge for labor or services, esp. profes­ sional services. attorney's fees. See ATTORNEY'S FEES. contingentfee. See CONTINGENT FEE. docket fee. (1836) A fee charged by a court for filing a claim. expert-witness fee. A fee paid for the professional services of an expert witness. [Cases: Costs C=> 187.] fixed fee. (18c) 1. A flat charge for a service; a charge that does not vary with the amount of time or effort required to complete the service. 2. In a construction contract, a predetermined amount that is added to costs for calculating payments due under the contract. [Cases: Contracts C=>231(1).] franchise fee. (1894) 1. A fee paid by a franchisee to a franchisor for franchise rights .• Franchise fees are regulated by state laws. 2. A fee paid to the govern­ ment for a government grant of a franchise, such as the one required for operating a radio or television station. [Cases: Telecommunications C=>798, 1215.]

jury fee. (1806) A fee, usu. a minimal one, that a party to a civil suit must pay the court clerk to be entitled to a jury trial. [Cases: Jury C=>26.] loan-origination fee. A fee charged by a lender to cover the administrative costs of making a loan. maintenancefee. See MAINTENANCE FEE. management fee. A fee charged by an investment manager for supervisory services. origination fee. (1921) A fee charged by a lender for pre­ paring and processing a loan. [Cases: Usury C=>53.] probate fee. Compensation paid with a probate court's approval to an attorney who performs probate-related services to the estate. [Cases: Executors and Admin­ istrators C=>216(2).] success fee. A bonus paid to a representative who performs exceptionally well in gaining favorable results; esp., a bonus that a client pays to an attorney if the attorney obtains something ofvalue to the client. • For instance, a client might agree to pay a success fee for success in litigation, for favorable negotiations in a transaction, or for the successful conclusion of a corporate merger, acquisition, or loan. See CONDI­ TIoNAL FEE AGREEMENT. [Cases: Attorney and Client C=>130,143.] witness fee. 1. A statutory fee that must be tendered with a subpoena for the subpoena to be binding. [Cases: Witnesses C=>23.] 2. A fee paid by a party to a witness as reimbursement for reasonable expenses (such as travel, meals, lodging, and loss of time) incurred as a result of the witness's having to attend and testify at a deposition or trial. • Any other payment to a nonexpert witness is considered unethical. - Also termed (in English law) conduct money. Cf. expert­ witness fee. 2. A heritable interest in land; esp., a fee simple absolute. - Also termed fee estate; feod; feodum; feud; feudum;fief See FEE SIMPLE. Cf. FEU. [Cases: Estates in Property C=>5-7.] "To enfeoff someone was to transfer to him an interest in land called a fief - or, if you prefer, a feoff, feod, or feud. Our modern word fee, a direct lineal descendant of fief, implies the characteristic of potentially infinite duration when used to describe an interest in land today; but in the earliest part of the feudal period, a fiefmight have been as small as a life interest. We shall see later that feoffment was not used to transfer interests 'smaller' than life interests ­ e.g., so-called terms for years - but for our purposes now we may simply note that transfers of interests for life or 'larger' were accomplished by livery of seisin." Thomas F. Bergin & Paul G. Haskell, Preface to Estates in Land and Future Interests 11 (2d ed. 1984).

arriere fee (ar-ee-air or ar-ee-;Jr). Hist. A fee dependent on a superior one; a subfief. - Also termed arriere fief base fee. (16c) A fee that has some qualification con­ nected to it and that terminates whenever the qual­ ification terminates.• An example of the words creating a base fee are "to A and his heirs, tenants of the manor of Tinsleydale," which would terminate when A or his heirs are no longer tenants of the manor

fee simple

691

of Tinsleydale. Among the base fees at common law are the fee simple subject to a condition subsequent and the conditional fee. - Also termed determinable fee; qualifiedfee; limited fee. See fee simple determin­ able under FEE SIMPLE. "A base fee is a particular kind of determinable fee, The two essentials of a base fee are (a) it continues only so long as the original grantor or any heirs of his body are alive; and (b) there is a remainder or reversion after it, , , , In effect a base fee was a fee simple which endured for as long as the entail would have continued if it had not been barred, and determined when the entail would have ended," Robert E, Megarry & M,P. Thompson, A Manual of the Law of Real Property 38-40 (6th ed. 1993),

determinable fee. See base fee. fee expectant. Rare. A fee tail created when land is given to a man and wife and the heirs oftheir bodies. See FRANKMARRIAGE. fee simple. See FEE SIMPLE. fee tail. See FEE TAIL.

great fee. Hist. In feudal law, a fee received directly

from the Crown. knight'sfee. See KNIGHT'S FEE. lay fee. Hist. A fee interest in land held by ordinary feudal tenure, such as socage, rather than byeccle­ siastical tenure through frankalmoin. See FRA~KA­ LMOIN; SOCAGE.

limited fee. See base fee. plowman's fee. Rist. A species of tenure for peasants or small farmers by which the land descended in equal

shares to all the tenant's sons.

qualified fee, See base fee.

quaSi-fee. Hist. An estate in fee acquired wrongfully. fee damages. See DAMAGES. feeder organization. Tax. An entity that conducts a business or trade for the benefit of a tax-exempt orga­ nization.• The feeder organization is not tax-exempt. IRC (26 USCA) § 502. [Cases: Internal Revenue C:=> 4067.] fee estate. See FEE (2). fee farm. Rist. A species of tenure in which land is held in perpetuity at a yearly rent (fee-farm rent), without fealty, homage, or other services than those in the feoffment. Also termed feodi firma;firma feodi. See EMPHYTEUSIS.

"Now to all appearance the term socage, a term not found in Normandy, has been extending itself upwards; a name appropriate to a class of cultivating peasants has begun to include the baron or prelate who holds land at a rent but is not burdened with military service. , , . He is sometimes said to have feodum censuale: far more commonly he is said to hold 'in fee farm.' This term has difficulties of its own, for it appears in many different guises; a feoffee is to hold in feofirma, in fel,lfirmam, in fedfirmam, in feudo firmam, in feudo firma, ad firmam feadalem, but most commonly, in feadi firma. The Old English language had both of the words of which this term is compounded, both feah (property) and feorm (rent); but so had the language of France, and in Norman documents the term may be

found in various shapes, firmam fedium, feudifirmam. But,

whatever may be the precise history of the phrase, to hold in fee farm means to hold heritably, perpetually, at a rent; the fee, the inheritance, is let to farm." 2 Frederick Pollock & Frederic W. Maitland, The History of English Law Before the Time Of Edward' 293 (2d ed. 1899).

fee-farm rent. See RENTCHARGE. fee interest. 1. See FEE. 2. See FEE SIMPLE. 3. See FEE TAIL. 4. Oil & gas. Ownership of both the surface interest and the mineral interest. feemail (fee-mayl). (1994) Slang. 1. An attorney's fee extorted by intimidation, threats, or pressure. 2. The act or process of extorting such a fee. Cf. BLACKMAIL (1); GRAYMAIL; GREENMAIL (I), (2).

fee-sharing. See FEE SPLITTING. fee-shifting, n. The transfer of responsibility for paying fees, esp. attorney's fees, from one party to another. See AMERICAN RULE (1); ENGLISH RULE. [Cases: Internal Revenue C:=>4351.j fee simple. (l5c) An interest in land that, being the broadest property interest allowed by law, endures until the current holder dies without heirs; esp., a fee simple absolute. - Often shortened to fee. - Also termed estate in fee simple; tenancy in fee; fee-Simple title; exclusive ownership;feudum simplex. See AND HIS HEIRS. [Cases: Estates in Property~--:;5-7.1

"[Fee simple] is a term not likely to be found in modern conversation between laymen, who would in all probabil­ ity find it quite unintelligible, Yet to a layman of the 14th century the term would have been perfectly intelligible, for it refers to the elementary social relationship of feudal, ism with which he was fully familiar: the words 'fee' and 'feudal' are closely related ... , The estate in fee simple is the largest estate known to the law, ownership of such an estate being the nearest approach to ownership of the land itself which is consonant with the feudal principle of tenure, It is 'the most comprehensive estate in land which the law recognises'; it is the 'most extensive in quantum, and the most absolute in respect to the rights which it confers, of all estates known to the law', Traditionally, the fee simple has two distinguishing features: first, the owner ('tenant' in fee simple) has the power to dispose of the fee simple, either inter vivos or by Will; second, on intestacy the fee simple descends, in the absence of lineal heirs, to collateral heirs to a brother, for example, if there is no issue," Peter Butt, Land Law 35 (2d ed. 1988). "Fee simple. Originally this was an estate which endured for as long as the original tenant or any of his heirs survived. 'Heirs' comprised any blood relations, although originally ancestors were excluded; not until the Inheritance Act 1833 could a person be the heir of one of his descendants. Thus at first a fee simple would terminate if the original tenant died without leaving any descendants or collateral blood relations (e.g., brothers or cousins), even if before his death the land had been conveyed to another tenant who was still alive, But by 1306 it was settled that where a tenant in fee simple alienated the land, the fee simple would continue as long as there were heirs of the new tenant and so on, irrespective of any failure of the original tenant's heirs, Thenceforward a fee simple was Virtually eternal." Robert E. Megarry & M.P. Thompson, A Manual of the Law of Real Property 24-25 (6th ed. 1993),

fee simple absolute. (lSc) An estate of indefinite or potentially infinite duration (e.g., "to Albert and his heirs"), Often shortened to fee simple or fee.

fee-simple title

Also termed fee simple absolute in possession. [Cases: Estates in Property (;::=>5.) "Although it is probably good practice to use the word 'absolute' whenever one is referring to an estate in fee simple that is free of special limitation, condition subse­ quent. or executory limitation, lawyers frequently refer to such an estate as a 'fee simple' or even as a 'fee.'" Thomas F. Bergin & Paul G. Haskell, Preface to Estates in Land and Future Interests 24 (2d ed. 1984).

fee simple conditional. (l7c) An estate restricted to some specified heirs, exclusive of others (e.g., "to Albert and his female heirs"). - The fee simple con­ ditional is obsolete except in Iowa, Oregon, and South Carolina. - Also termed general fee conditional; COIl­ ditionalfee. [Cases: Estates in Property (;::=>7.] "The reader should be careful not to confuse this estate with estates having similar labels, such as the 'estate in fee simple subject to a condition subsequent' ...." Thomas F. Bergin & Paul G. Haskell, Preface to Estates in Land and Future Interests 29 n.19 (2d ed. 1984).

fee simple defeasible (di-fee-z6.] "In theory, it should be easy to determine whether an instrument creates a fee simple determinable or a fee simple subject to a condition subsequent. If the instrument includes a special limitation (introduced by words such as 'so long as' or 'until') it creates a fee simple determinable, whether or not it also includes an express reverter clause. If the instrument includes an express condition or proviso ('on condition that' or 'provided that') and an express right to re-enter for breach of the stated condition, it creates a fee simple subject to a condition subsequent. But deeds and wills often fail to employ the appropriate words to create one of the twO types of defeasible estate or the others. Instead deeds and wills often contain a confusing mixture of words appropriate for creation of both types of defeasible estate." William B. Stoebuck & Dale A. Whitman, The Law of Property 43 (3d ed. 2000).

fee simple subject to a condition subsequent. (1874) An estate subject to the grantor's power to end the estate if some specified event happens (e.g., "to Albert and his heirs, upon condition that no alcohol is sold on the premises"). _ The future interest retained by the grantor is called a power of termination (or a right of entry). - Also termed fee simple on a condition sub­ sequent; fee simple subject to a power oftermination; fee simple upon condition. [Cases: Estates in Property C~:::07.]

692

fee simple subject to an executory limitation. (1856) A fee simple defeasible that is subject to divestment in favor of someone other than the grantor if a speci­ fied event happens (e.g., "to Albert and his heirs, but if the property is ever used as a parking lot, then to Bob"). Also termed fee simple subject to an execu­ tory interest. [Cases: Estates in PropertyC=·6.] fee simple subject to a power of termination. See fee simple subject to a condition subsequent. fee simple subject to common-law limitation. See fee simple determinable. fee simple subject to special interest. See fee simple determinable. fee simple subject to special limitation. See fee simple determinable. fee simple upon condition. See fee simple subject to a condition subsequent. fee-simple title. See FEE SIMPLE. fee-splitting. I. The division of attorney's fees between two or more lawyers, esp. between the lawyer who handled a matter and the lawyer who referred the matter. _ Some states consider this practice unethi­ cal. 2. The division of attorney's fees between two or more lawyers who represent a client jointly but are not in the same firm. - Under most states' ethics rules, an attorney is prohibited from splitting a fee with a nonlawyer. Also termed fee-sharing; division offees. [Cases: Attorney and Client (;::=> 151.] fee statement. A lawyer's bill for services either already rendered or to be rendered, usu. including itemized expenses. fee tail. (15e) An estate that is heritable only by specified descendants of the original grantee, and that endures until its current holder dies without issue (e.g., "to Albert and the heirs of his body"). - Most jurisdic­ tions except Delaware, Maine, Massachusetts, and Rhode Island have abolished the fee tail. - Also termed entailed estate; estate tail; estate in tail; estate in fee tail; tenancy in tail; entail;feodum talliatum. See ENTAIL; TAIL. [Cases: Estates in PropertyC=: 12.] "The old estate tail was throughout its history invari­ ably with family settlements, and in particular with marriage settlements .... Medieval landowners sought to achieve [familial continuity and status] by perfecting a single estate which in itself would conform to three require­ ments: (1) While it should be an estate of inheritance it should devolve on lineal heirs only, and not on collater­ als in other words that it should descend only to the heirs of the body of the first (2) As a corollary, the estate should be such that at any time the first grantee's issue should fail the estate itself should come to an end and the land revert to the original settlor or his heirs. (3) No owner of the estate for the time being should have power to dispose of the land in such a way as to prevent it descending on his death to the next heir of the body of the original grantee. All this was attempted by limiting land, not to 'A and his heirs,' which would give A a fee simple, but to 'A and the heirs of his body.'" 1 Stephen's Commen­ taries on the Laws of Eng/and 150 (L. Crispin Warmington ed., 21st ed. 1950).

"If we cannot resist the temptation to say that De Donis per· mitted the creation of tailor·made estates, we can at least argue that it is not a pun. Our word 'tailor' and the word 'tail,' as used in 'fee tail,' come from the same source - the French tailler, to cut. The word 'tail' in 'fee tail' has nothing to do with that which wags the dog. The estate in fee tail was a cut estate - either cut in the sense that the collateral heirs were cut out, or cut in the sense that the estate was carved into a series of discrete life· possession periods to be enjoyed successively by A and his lineal heirs .... We know of no state in the United States that recognizes the estate in fee tail in its strict 1285-1472 form. Wherever it is recognized, the tenant in tail in possession may disentail it by simple deed." Thomas F. Bergin & Paul G. Haskell, Preface to Estates in Land and Future Interests 30, 32 (2d ed.1984).

fee tail general. A fee tail that is heritable by all of the property owner's issue by any spouse .• Formerly, a grant "to A and the heirs of his body" created a fee tail general. [Cases: Estates in Property (;:::·12.J fee tail special. A fee tail that restricts the eligibility of claimants by requiring a claimant to prove direct descent from the grantee and meet the special con­ dition in the grant. • For example, the words "to A and the heirs of his body begotten on his wife Mary" meant that only descendants of A and Mary could inherit; !\s children by any other wife were excluded. An estate tail special could also be restricted to only male or only female descendants, as in "to A and the heirs male of his body." [Cases: Estates in Property 12.J feign (fayn), vb. (Be) To make up or fabricate; to make a false show of . feigned, adj. Pretended; simulated; fictitious. feigned accomplice. See INFORMANT. feigned action. Hist. An action brought for an illegal purpose on a pretended right. Also termed faint action;false action. feigned issue. Hist. A proceeding in which the parties, by consent, have an issue tried by a jury without actually bringing a formal action .• The proceeding was done when a court either lacked jurisdiction or was unwill­ ing to decide the issue. Also termed fictitious issue. 'The chancellor's decree is either interlocutory or final. It very seldom happens that the first decree can be final, or conclude the cause; for, if any matter of fact is strongly controverted, this court is so sensible of the deficiency of trial by written depositions, that it will not bind the parties thereby, but usually directs the matter to be tried by jury .... But, as no jury can be summoned to attend this court, the fact is usually directed to be tried at the bar of the court of king's bench or at the assises, upon a feigned issue. For. (in order to bring it there, and have the point in dispute, and that only, put in issue) an action is feigned to be brought, wherein the pretended plaintiff declares that he laid a wager of 51. with the defendant that A was heir at law to B; and then avers that he is so; and there· fore demands the 51. The defendant allows the wager, but avers that A is not the heir to B; and thereupon the issue is joined. , .. These feigned issues seem borrowed from the sponsio judicialis of the Romans: and are also frequently used in the courts of law, by consent of the parties, to determine some disputed rights without the formality of pleading ....• 3 William Blackstone, Commentaries on the

Laws of England 452 (1768).

feigned recovery. See COMMON RECOVERY. FEIN. abbr. See TAX-IDENTIFICATION NUMBER. Feist doctrine. (1991) Copyright. The rule that "sweat of the brow" will not support U.S. copyright protection in an unoriginal collection of facts. Feist Pubs. v. Rural Tel. Servo Co., 499 U.S. 340, IllS. Ct. 1282 (1991). Cf. SWEAT-OF-THE-BROW DOCTRINE. [Cases: Copyrights and Intellectual Property e:-~ 12(2).] FELA (fee-I;)). abbr. FEDERAL EMPLOYERS' LIABILITY ACT.

fele (feel). [Law French] See FEAL. fellow, n. l. One jOined with another in some legal status or relation. 2. A member of a college, board, corporate body, or other organization. fellow-officer rule. (1971) Criminal procedure. The prin­ ciple that an investigative stop or an arrest is valid even if the law-enforcement officer lacks personal knowledge to establish reasonable suspicion or probable cause as long as the officer is acting on the knowledge ofanother officer and the collective knowledge ofthe law-enforce­ ment office. Also termed Whiteley rule; collective­ knowledge rule. [Cases: Arrest C=>63.4(1l}.] fellow servant. A coworker having the same employer; esp., an employee who is so closely related to another employee's work that there is a special risk of harm if either one is negligent. See FELLOW-SERVANT RULE; DIFFERENT-DEPARTMENT RULE.

superior fellow servant. A worker that has the power of control or direction over a coworker.

Also termed

superior servant. fellow-servant rule. (1905) A common-law doctrine holding that an employer is not liable for an employee's injuries caused by a negligent coworker.• This doctrine has generally been abrogated by workers' -compensa­ tion statutes. In some jurisdictions, employees were considered fellow servants when they were working with one aim or result in view. In others, the relation of fellow servant was tested by the" doctrine of vice principal" or the "superior-servant rule," meaning that an employer is liable for injuries to an employee ifthey result from the negligence of another employee who is given power of control or direction over the injured employee. Also termed common-employment doctrine. Cf. DIFFERENT-DEPARTMENT RULE. [Cases: Labor and Employment C=>2921.J felo-de-se (fee-loh or fel-oh dee see), n. (17c) See SUICIDE (2). PI. felones de se. "'Felo de

Sl!.,' or felon of himself is freely spoken of by the early writers as self·murder. Hence one who killed himself before he arrived at the age of discretion or while he was non compos mentis, was not a felo de se, or suicide .... [Bly the early common law suicide was a felony and was punished by ignominious burial and forfeiture of goods and chattels to the king." Rollin M. Perkins & Ronald N. Boyce, Criminal Law 120 (3d ed. 1982).

felon, n. (l3c) A person who has been convicted of a felony. Also termed (redundantly) convicted felon. felon-de-se. See SUICIDE (2).

felonia (f;l-loh-nee-;.:,). [Latin "felony"} Hist. An offense that results in a vassal's forfeiting his fee. "The attempt to derive felonia from fel 'poison' is merely a folk etymology which came into vogue when 'felony' meant a serious crime, and differed from treason. The word was well established in Feudal Law as the character­ istic offense against the Feudal relationship. It will hardly do, therefore, to try to determine its meaning merely by reference to English usage ...." Max Radin, Handbook of Anglo·American Legal History 148 n.7 (1936).

felonious (f;.:,-loh-nee-;.:,s), adj. (l6c) 1. Of, relating to, or involving a felony. 2. Constituting or having the char­ acter of a felony. 3. Proceeding from an evil heart or purpose; malicious; villainous. 4. Wrongful; (of an act) done without excuse or color of right. felonious assault. See ASSAULT. felonious homicide. See HOMICIDE. felonious intent. See criminal intent under INTENT (1). felonious restraint. (1971) 1. The offense of knowingly and unlawfully restraining a person under circum­ stances that expose the person to serious bodily harm. Model Penal Code § 212.2(a). 2. The offense of holding a person in involuntary servitude. Model Penal Code § 212.2(b). [Cases: False Imprisonment felon of oneself. See SUICIDE (2). felony, n. (l4c) 1. A serious crime usu. punishable by imprisonment for more than one year or by death. ­ Examples include burglary, arson, rape, and murder. ­ Also termed major crime; serious crime. Cf. MISDE­ MEANOR. [Cases: Criminal Law "Felony, in the general acceptation of our English law, com· prizes every species of crime, which occasioned at common law the forfeiture of lands or goods." 4 William Blackstone, Commentaries on the Laws of England 94 (1769). "Amongst indictable crimes, the common law singled out some as being so conspicuously heinous that a man not as any adjudged gUilty of any of them incurred express part of his sentence but as a consequence that necessarily ensued upon it ~ a forfeiture of property, whether of his lands or of his goods or of both (in the case of treason). Such crimes came to be called 'felonies.' The other, and lesser, crimes were known as 'transgressions' or 'trespasses,' and did not obtain their present name of mis· demeanours until a much later date. A felony is, therefore, a crime which either involved by common law such a forfei· ture, or else has been placed by statute on the footing of those crimes which did involve it." J.W. Cecil Turner, Kennv's Outlines of Criminal Law 93 (16th ed. 1952).

atrocious felony. (1814) Archaic. A serious, usu. cruel felony involving personal violence. - The common practice today is to refer to the specific type of crime alleged (e.g., first-degree murder or aggravated sexual assault). serious felony. (1874) A major felony, such as burglary of a residence or an assault that causes great bodily injury. - In many jurisdictions, a defendant's prior serious-felony convictions can be used to enhance another criminal charge. [Cases: Sentencing and Pun­ ishment (;:::c 1254, 1276.J substantive felony. See substantive offense under OFFENSE

(1).

treason felony. See TREASON FELONY. violent felony. See violent offense under OFFENSE (1). 2. Hist. At common law, an offense for which convic­ tion results in forfeiture of the defendant's lands or goods (or both) to the Crown, regardless of whether any capital or other punishment is mandated. - At early common law, the term felony included any offense for which a defendant who fled before trial could be summarily convicted, attainted, and outlawed, or that carried a right of appeal after conviction. Although treason carried the same penalties as a common-law felony, it was usu. defined as a separate class of crime. 3. Hist. Feudal law. A grave act that resulted in the for­ feiture ofland granted by a superior. felony-de-se. See SUICIDE (1). felony injury to a child. The act ofcausing or allowing a child to suffer in circumstances likely to produce great bodily harm or death, or inflicting unjustifiable pain or mental suffering in those circumstances. [Cases: Infants 7; Health C==>578.] fiducial relationship. See trust relationship under RELA­ TIONSHIP.

fiduciarius heres (fi-d[y]oo-shee-air-ee- 12(2,20); Federal Courts C==> 76.20.] fief (feef), n. 1. See FEE. 2. See FEUD•• Metaphorically, the term refers to an area of dominion, esp. in a corpo­ rate or governmental bureaucracy. fief d'hauberk (feef doh-bairk). See feudum militare under FEUDUM. fief d'haubert. See feudum militare under FEUDUM. fief-tenant. Hist. The holder of a fief or fee; a feeholder or freeholder. field audit. See AUDIT. field book. A log or book containing a surveyor's notes that are made on-site and that describe by course and distance the running of the property lines and the establishment of the corners of a parcel of land. Field Code. 1he New York Code of Procedure of 1848, which was the first comprehensive Anglo-American code of civil procedure and served as a model for the Federal Rules of Civil Procedure .• It was drafted by David Dudley Field (1805-1894), a major law-reformer. See code pleading under PLEADING (2). field notes. The notes in a surveyor's field book. field of invention. See CLASSIFICATION OF PATENTS (2). field of search. See CLASSIFICATION OF PATENTS (2). field-of-use restriction. Intellectual property. A license provision restricting the licensee's use of the licensed

703

50-percent rule

property to a defined product or service market or to a designated geographical area. field sobriety test. See SOBRIETY TEST. field stop. See STOP AND FRISK. field-warehouse financing agreement. The loan agree­ ment in a field-warehousing arrangement. field warehousing. An inventory-financing method by which a merchant pledges its inventory, which is in the possession of a third person (a warehouser).• This is a method offinancing an inventory that cannot econom­ ically be delivered to the creditor or third party. The borrower segregates part of the inventory and places it under the nominal control of a lender or third party, so that the lender has a possessory interest. Cf. floor-plan financing under FINANCING; PLEDGE. "Field warehousing is a way of bringing about the security relationship of a pledge. It is an arrangement for allowing the pledgor a more convenient access to the pledged goods, while the goods are actually in the custody and control of a third person on the pledgor's premises." Business Factors, Ine. v. Taylor-Edwards Warehouse & Transfer Co., 585 P.2d 825, 828 (Wash. Ct. App. 1978). "Field warehousing is ... an arrangement whereby a whole· saler, manufacturer, or merchant finances his business through the pledge of goods remaining on his premises. The arrangement is valid and effective where there is an actual delivery to the warehouseman by the bailor who has hired the warehouseman and given him exclUSive posses· sion of the warehouse goods." In re Covington Crain Co., 638 F.2d 1362, 1365 (5th Cir. 1981).

fierding court (fyar-ding or feer-ding). Hist. An ancient court of inferior jurisdiction .• Four courts were in each district or hundred. fieri (fI-a-rr). [Latin] To be made; to be done .• Fieri usu. appears as part of the phrase in fieri. See IN FIERI. fieri facias (fI-a-rr fay-shee-as). [Latin "that you cause to be done"] (ISc) A writ of execution that directs a marshal or sheriff to seize and sell a defendant's property to satisfy a money judgment. - Abbr. fa.; Fi. Fa. Cf. LEVARI FACIAS. [Cases: Execution 1,15.] "It receives its name from the Latin words in the writ (quod fieri facias de bonis et catallis, that you cause to be made of the goods and chattels). It is the form of execution in common use in levying upon the judgment· debtor's personal property." John Bouvier, Bouvier's Law Diction· ary(8th ed. 1914). "The writ of 'fieri facias' (commonly called a writ of 'fi fa'), which commanded literally 'that you cause to be made,' was an early common-law means of enforcing payment on ajudgment; it was, in effect, an order to the sheriff of the court to enforce a judgment against the debtor by levy, seizure, and sale of his personalty to the extent needed to satisfy ajudgment." 30 Am.Jur. 2d Executions and Enforce· ment ofJudgments § 14, at 50-51 (1994).

fieri facias de bonis ecclesiasticis (fI-a-n fay-shee-as dee boh-nis e-klee-z[h]ee-as-ta-sis). [Latin "that you cause to be made of the ecclesiastical goods"] Hist. A writ of execution - used when the defendant was a beneficed clerk who had no lay fee - that commanded the bishop to satisfy the judgment from the ecclesi­ astical goods and chattels of the defendant within

the diocese. - This was accomplished by issuing a sequestration to levy the debt out of the defendant's benefice. This writ was issued after a fieri facias had been returned nulla bona. fieri facias de bonis propriis (fI-d-rI fay-shee-ds dee boh-nis proh-pree-is). [Latin "that you cause to be made of his own goods"] Hist. A writ that executes on an executor's property when a writ fieri facias de bonis testatoris is returned by the sheriff nulla bona or devastavit (a wasting ofthe testator's goods by the executor). fieri facias de bonis testatoris (fI-d-rI fay-shee-297.j Fifth Amendment, pleading the. See TAKE THE FIFTH. Fifty Decisions. Justinian's rulings that settled con­ troversies and eliminated obsolete rules in the law.• The decisions were made in preparation for Justinian's Digest. - Also termed (in Latin) Quinquaginta Deci­ siones. 50 percent plus one. See HALF PLUS ONE. 50-percent rule. (1975) The principle that liability for negligence is apportioned in accordance with the

percentage of fault that the fact-finder assigns to each party, that the plaintiffs recovery will be reduced by the percentage of negligence assigned to the plaintiff, and that the plaintiffs recovery is barred if the plain­ tiffs percentage offault is SO% or more. - Also termed modified-compamtive-negligence doctrine. Cf. PURE­ COMPARATIVE-NEGLIGENCE DOCTRINE. See compara­ tive negligence under NEGLIGENCE; APPORTIONMENT OF LIABILITY. [Cases: Negligence C=S49(1O).] fighting age. See AGE. fighting words. (1917) 1. Inflammatory speech that might not be protected by the First Amendment's free-speech guarantee because it might incite a violent response. [Cases: Constitutional lS62; Disor­ 133.J 2. Inflammatory speech derly Conduct that is pleadable in mitigation but not in defense of a suit for assault. [Cases: Assault and Battery 12.] Also termed fighting talk. fightwite (fIt-wIt). Hist. A fine imposed against one who participated in a breach of the peace. filacer (fil-;>-s;>r). Hist. An officer of the Westminster superior courts who filed the writs on which process was made. _ The office was abolished in 1837. Also spelled filazer. filacium. See FILUM. filare (fi-lair-ee), vb. [Law Latin] Hist. To file. filazer. See FILACER. file, n. (17c) 1. A court's complete and official record of a case . 2. A lawyer's complete record of a case . 3. A portion or section of a lawyer's case record . 4. A case <Jonah was assigned the Watson file after Amy left the firm>. file, vb. (16c) 1. To deliver a legal document to the court clerk or record custodian for placement into the official record . - Also termed (in BrE) lodge. 2. To commence a lawsuit . 3. To record or deposit something in an orga­ nized retention system or container for preservation and future reference . 4. Parliamentary law. To acknowl­ edge and deposit (a report, communication, or other document) for information and reference only without necessarily taking any substantive action. filed-rate doctrine. A common-law rule forbidding a regulated entity, usu. a common carrier, to charge a rate other than the one on file with the appropriate federal regulatory authority, such as (formerly) the Interstate Commerce Commission. - Also termed filed-tariff doctrine. See TARIFF (3). [Cases: Carriers 63.] filiation order. See ORDER (2). filibuster (fil-;J-b;>s-tdr), n. (ISc) 1. A dilatory tactic, esp. prolonged and often irrelevant speech making, employed in an attempt to obstruct legislative action. - The filibuster is common in the U.S. Senate, where the right to debate is usu. unlimited and where a filibuster can be terminated only by a cloture vote of two-thirds of all members. 2. In a deliberative body, a member in the minority who resorts to obstructive tactics to prevent the adoption of a measure or procedure that is favored by the majority. Also termed filibusterer. 3. Hist. A person who, together with others, works to invade and revolutionize a foreign state in disregard of international law. See CLOTURE. - filibuster, vb. filicide (fil-i-sld). (l7c) 1. A person who kills his or her own child. 2. The act of killing one's own child. Cf. INFANTICIDE.

705

final-judgment rule

filing. n. (18c) A particular document (such as a pleading) in the file of a court clerk or record custodian 12.] filum forestae (fI-lam for-a-steel. [Latin] The border of a forest. filum viae (fI-lam vI-eel. [Latin)l. The middle line of a road. 2. The boundarv between landowners on each side of a road. [Cases:'Boundaries 19.] finable (fI-na-bal), adj. (15c) Liable to a fine; subject to having to pay a fine. Also spelled fineable. [Cases: Fines C=> 1.5.) final, adj. (l4c) L (Of a judgment at law) not requiring any further judicial action by the court that rendered judgment to determine the matter litigated; concluded. 2. (Of an equitable decree) not requiring any further judicial action beyond supervising how the decree is carried out. • Once an order, judgment, or decree is final, it may be appealed on the merits. Cf. INTERLOCU­ TORY.

final and conclusive. Terminal and unappealable, except on grounds of procedural error, fraud, or mistake. final agenda. See AGENDA. final alimony. See permanent alimony under ALIMONY. final and conclusive. See FINAL. final appealable judgment. See final judgment under JUDGMENT.

final appealable order. See final judgment under JUDGMENT.

final argument. See CLOSING ARGUMENT. final concord. See CONCORD. final decision. See final judgment under JUDGMENT. final-decision rule. See FINAL-JUDGMENT RULE. final decree. See final judgment under JUDGMENT. final injnnction. See permanent injunction under INJUNCTION.

finalis concordia (fi-nay-lis kan-kor-dee-a). [Latin) A final or conclusive agreement. See final concord under CONCORD; FINE (1).

finality doctrine. (1942) The rule that a court will not judicially review an administrative agency's action until it is final. Also termed final-order doctrine; doctrine offmality; principle offinality. Cf. FINAL-JUDGMENT RULE; INTERLOCUTORY APPEALS ACT. [Cases: Admin­ istrative Law and Procedure (>704.] finality rule. See FINAL-JUDGMENT RULE. final judgment. See JUDGMENT. final-judgment rule. (1931) The principle that a party may appeal only from a district court's final decision that ends the litigation on the merits.• Under this rule, a party must raise all claims of error in a Single

final-offer arbitration

706

appeal. - Also termed final-decision rule;finality rule. 28 USCA § 1291. See DEATH-KNELL DOCTRINE. Cf. FINALITY DOCTRINE; INTERLOCUTORY APPEALS ACT; DEATH-KNELL DOCTRINE. [Cases: 66; Federal Courts ~571.]

Appeal and Error~

final-offer arbitration. See ARBITRATION. final office action. See OFFICE ACTION. final order. See ORDER (2). final-order doctrine. See FINALITY DOCTRINE. final peace. See final concord under CONCORD. final process. See PROCESS. final receiver's receipt. The government's acknowledg­ ment that it has received full payment from a person for public land, that it holds the legal title in trust for the person, and that it will in due course issue the person a land patent. [Cases: Public Lands ~ 110.] final rejection. See REJECTION. final settlement. See SETTLEMENT (2). final speech. See CLOSING ARGUMENT. final submission. See CLOSING ARGUMENT. finance, n. (I8c) 1. That aspect of business concerned with the management of money, credit, banking, and investments . 2. The science or study of the management of money, etc. . finance, vb. (19c) To raise or provide funds. finance bill. See BILL (6). finance charge. An additional payment, usu. in the form of interest, paid by a retail buyer for the privilege of pur­ chaSing goods or services in installments. - This phrase is increasingly used as a euphemism for interest. See INTEREST (3). [Cases: Consumer Credit (;:::>52; Usury C=>53.] finance company. (20c) A nonbank company that deals in loans either by making them or by purchasing notes from another company that makes the loans directly to borrowers. commercial finance company. A finance company that makes loans to manufacturers and wholesalers. ­ Also termed commercial credit company. consumer finance company. A finance company that deals directly with consumers in extending credit. ­ Also termed small-loan company. [Cases: Consumer Credit~3.1

sales finance company. A finance company that does not deal directly with consumers but instead pur­ chases consumer instaHment paper arising from the sale of consumer durables "on time." - Also termed acceptance company. finance lease. See LEASE. finance officer. See TREASURER. financial accounting. See ACCOU!\ITING (1).

Financial Accounting Standards Board. The indepen­ dent body of accountants responsible for establishing, interpreting, and improving standards for financial accounting and reporting. Abbr. FASB. [Cases: Accountants 8.J financial asset. See current asset under ASSET. financial contract. See CONTRACT. financial-core membership. Union membership in which a private-company employee pays the union's initiation fees and periodic dues but is not a full union member. - Financial-core membership is allowed only in states without a right-to-work law, where a union­ security contract clause can require employees to pay financial-core membership dues but cannot require full union membership. The dues are limited to the amount required to support the union's representational activi­ ties, such as collective bargaining. See Communications Workers ofAm. v. Beck, 487 U.S. 735, 744, 108 S.Ct. 2641, 2648 (1988). - Also termed (in public-employ­ ment sector) fair-share membership; agency-shop mem­ bership. See UNIO!\I-SECURITY CLAUSE. Financial Crimes Enforcement Network. A unit in the U.S. Department of the Treasury responsible for supporting law-enforcement efforts against domestic and international financial crimes. Abbr. FinCEN. financial deregulation. See DEREGULATION. financial futures. See FUTURES (1). financialinstitution. (1821) A business, organization, or other entity that manages money, credit, or capital, such as a bank, credit union, savings-and-Ioan association, securities broker or dealer, pawnbroker, or investment company. [Cases: Banks and Banking ~ 1; Building I.] and Loan Associations financial interest. See INTEREST (2). financial intermediary. (1873) A financial entity usu. a commercial bank - that advances the transfer of funds between borrowers and lenders, buyers and sellers, and investors and savers. Fiuancial Management Service. A unit in the U.S. Department of the Treasury responsible for develop­ ing and managing systems for moving the U.S. govern­ ment's cash by assisting other agencies in collecting and disbursing funds; collecting and publishing financial information; and collecting delinquent debts. Abbr. FMS. financial market. See MARKET. financial planner. A person whose business is advising clients about personal finances and investments. _ Upon completing a certification program, such a person is called a certified financial planner. Abbr. CPP. financial report. See FINANCIAL STATEMENT. financial-responsibility act. (1930) A state statute con­ ditioning license and registration of motor vehicles on proof of insurance or other financial accountability. [Cases: Automobiles Insurance C~~'2737.]

.......

financial-responsibility clause. (1946) Insurance. A pro­ vision in an automobile insurance policy stating that the insured has at least the minimum amount ofliabil­ ity insurance coverage required by a state's financial­ responsibility law. [Cases: Insurance (;=>2737, 2756.] financial restatement. A report correcting material errors in a financial statement, esp. to adjust profits and losses after an accounting procedure has been disallowed. financials. Slang. Financial statements. financial secretary. 1. See SECRETARY. 2. See TREA­ SURER.

Financial Services Agency. The regulatory body that oversees the United Kingdom's financial-services industry, including exchanges and related entities. ­ Formerly termed Securities and Investment Board. financial statement. 1. A balance sheet, income state­ ment, or annual report that summarizes an individual's or organization's financial condition on a specified date or for a specified period by reporting assets and liabili­ ties. Also termed financial report. Cf. FINANCING STATEMENT.

certified financial statement. A financial statement examined and reported by an independent public or certified public accountant. SEC Rule 12b-2 (17 CPR § 240.12b-2). consolidated financial statement. The financial report of a company and all its subsidiaries combined as if they were a single entity. normalized financial statement. A statement in which some components have been adjusted to exclude anomalies, such as unusual and nonrecur­ ring elements, and nonoperating assets or liabilities, so the statement may be compared with others. 2.

INCOME-AND-EXPENSE DECLARATION.

financing, n. (19c) 1. The act or process of raising or pro­ viding funds. 2. Funds that are raised or proVided. finance, vb. asset-based financing. A method of lending in which lenders and investors look primarily to the cash flow from a particular asset for repayment. construction financing. See interim financing. debt financing. The raising offunds by issuing bonds or notes or by borrowing from a financial institution. equity financing. 1. The raising of funds by issuing capital securities (shares in the business) rather than making loans or selling bonds. 2. The capital so raised. floor-plan financing. A loan that is secured by mer­ chandise and paid off as the goods are sold .• Usu. such a loan is given by a manufacturer to a retailer or other dealer (as a car dealer). Also termed floor planning. Cf. FIELD WAREHOUSING. gap financing. Interim financing used to fund the difference between a current loan and a loan to be

received in the future, esp. between two long-term loans. See bridge loan under LOAN. interim financing. A short-term loan secured to cover certain major expenditures, such as construction costs, until permanent financing is obtained. Also termed construction financing. internal financing. A funding method using funds gen­ erated through the company's operations rather than from stock issues or bank loans. link financing. The obtaining of credit by depositing funds in another's bank account to aid the other in obtaining a loan. outside financing. The raising offunds by selling stocks (equity financing) or bonds (debt financing). permanentfinancing. A long-term loan obtained to repay an interim loan, such as a mortgage loan that is used to repay a construction loan. project financing. A method of funding in which the lender looks primarily to the money generated by a single project as security for the loan .• This type of financing is usu. used for large, complex, and expen­ sive single-purpose projects such as power plants, chemical-processing plants, mines, and toll roads. 1he lender is usu. paid solely or primarily from the money generated by the contracts for the facility's output (sometimes paid by customers directly into an account maintained by the lender), such as the elec­ tricity sold by a power plant. The lender usu. requires the facility to be developed and owned by a special­ purpose entity (sometimes called a bankruptcy­ remote entity), which can be a corporation, limited partnership, or other legal entity, that is permitted to perform no function other than developing, owning, and operating the facility. See SINGLE-PURPOSE PROJECT; SPECIAL-PURPOSE ENTITY; BANKRUPTCY­ REMOTE ENTITY.

financing agency. See AGENCY (1). financing statement. (1954) A document filed in the public records to notify third parties, usu. prospective buyers and lenders, of a secured party's security interest in goods or real property. See UCC § 9-102(a)(39). Cf. FINANCIAL STATEMENT. [Cases: Secured Transactions FinCEN. abbr.

FINANCIAL CRIMES ENFORCEMENT

NETWORK.

find, vb. (bef. 12c) To determine a fact in dispute by verdict or decision . Cf. HOLD (2). finder. (13c) 1. An intermediary who brings together parties for a business opportunity, such as two com­ panies for a merger, a borrower and a financial institu­ tion, an issuer and an underwriter of securities, or a seller and a buyer of real estate .• A finder differs from a broker-dealer because the finder merely brings two parties together to make their own contract, while a broker-dealer usu. participates in the negotiations. See

708

finder of fact INTERMEDIARY. 2. A person who discovers an object, often a lost or mislaid chattel. finder of fact. See FACT-FINDER. finder's fee. (1937) 1. The amount charged by one who brings together parties for a business opportunity. 2. The amount charged by a person who locates a lost or missing item and returns it to its owner. finder's-fee contract. (1959) An agreement between a finder and one of the parties to a business opportu­ nity. finding. See FINDING OF FACT. finding of fact. (18c) A determination by a judge, jury, or administrative agency of a fact supported by the evidence in the record, usu. presented at the trial or hearing 1l0.] FIOS. abbr. Free in and out stowed .• This bill-of-lading term means that the shipper supervises and pays for loading, unloading, and stowing. [Cases; Shipping (;:::::> 110.] firdfare. See FERDFARE. fire, vb. (1885) To discharge or dismiss a person from employment; to terminate as an employee. [Cases: Labor and Employment (;:::J82S.] firearm. (17c) A weapon that expels a projectile (such as a bullet or pellets) by the combustion of gunpowder or other explosive. [Cases; Weapons (;:::J8.] firebote. See housebote under BOTE (1). firebug. See INCENDIARY (I). firefighter's rule. A doctrine holding that a firefighter, police officer, or other emergency professional may not hold a person, usu. a property owner, liable for unintentional injuries suffered by the professional in responding to the situation created or caused by the person. Also termed fireman's rule. [Cases; Negli­ gence (;:::J570, 1315.] fire insurance. See DISURANCE. fireman's rule. See FIREFIGHTER'S RULE. fire ordeal. See ordeal by fire under ORDEAL. fire sale. See SALE. firing squad. (l9c) 1. A group of persons assembled to carry out a capital-punishment sentence by shooting the prisoner with high-powered rifles at the same time from a short distance. 2. A military detachment that fires a salute, usu. during the burial ceremony for the person being honored. firm, n. (lSc) 1. The title under which one or more persons conduct business jOintly. 2. The association by which persons are united for business purposes .• Traditionally, this term has referred to a partnership, as opposed to a company. But today it frequently refers to a company. See LAW FIRM. firma. [Latin]l. A lease. 2. A corporation or partner­ ship. firma burgi (far-m;) bar-jI). [Law Latin "the farm of the borough"] Hist. A person's right to take the profits of a borough.• The monarch or the borough's lord granted this right to a person upon payment of a fixed sum. jirmafeodi. See FEE FARM. firma noctis. See NOCTEM DE FIRMA.

710

jirmaratio (f;)r-m,,-ray-shee-oh). [Law Latin] His/. A tenant's right to the lands and tenements leased to him. firmarius (f"f-mair-ee-;)s). [Law Latin] A person entitled to take rent or profits. Cf. FERMER (2). jirma social (feer-mah soh-syahl). [Spanish] Spanish law. An officially registered name of a corporation or partnership. firm bid. See BID (2). firm-commitment underwriting. See UNDERWRITING. firme. See FARM. jirmitas (far-ma-tas). [Law Latin] Hist. An assurance of some privilege by deed or charter. firm offer. See irrevocable offer under OFFER. firm opportunity. A law-firm lawyer's opportunity to profit individually from a venture from which the firm might benefit, as opposed to the individual lawyer, and as to which the lawyer must therefore defer to the firm and turn over any income to the firm. firm-opportunity doctrine. See CORPORATE-OPPORTU­ NITY DOCTRINE.

First Amendment. The constitutional amendment, ratified with the Bill of Rights in 1791, guaranteeing the freedoms of speech, religion, press, assembly, and petition. [Cases: Constitutional Law C=' 1150-1205.] first-blush rule. The common-law principle that allows a court to set aside a verdict as excessive because the verdict causes the mind to immediately conclude that it resulted from passion or prejudice on the part of the jury. [Cases: Federal Civil Procedure C:~)2345; New Trial (;:::J77(2).] first cause. See proximate cause under CAUSE (1). first chair, n. (1952) Slang. The lead attorney in court for a given case <despite having worked at the firm for six years, the associate had yet to be first chair in a jury trial>. - first-chair, vb. first cousin. See COUSIN (1). first-degree, adj. See DEGREE (2). first-degree amendment. See primary amendment under AMENDMENT

(3).

first-degree manslaughter. See MANSLAUGHTER. first-degree murder. See MURDER. first-degree principal. See principal in the first degree under PRINCIPAL (2). first-degree sexual conduct. (1979) Sexual battery that involves an aggravating factor, as when the perpetrator commits the offense against a minor or when the per­ petrator commits the offense in the course ofcommit­ ting another crime, such as a burglary. Also termed criminal sexual conduct in the first degree. [Cases: Assault and Battery e::-~)59.] first devisee. See DEVISEE. first-filed rule. See FIRST-TO-FILE RULE. first-filing rule. See FIRST-TO-FILE RULE.

first-to-invent system

711

first fruits. 1. Hist. One year's profits from the land of a tenant in capite, payable to the Crown after the tenant's death. - Also termed primer seisin. 2. Hist. Eccles. law. The first year's whole profits of a clergyman's benefice, paid by the incumbent to the Pope, or (after the break with Rome) to the Crown .• This revenue was later termed "Queen Anne's Bounty" when it was converted to a fund to benefit the poor. - Sometimes written firstfruits. - Also termed primitiae; primitive; annates; annats; Queen Anne's Bounty. firsthand knowledge. See personal knowledge under KNOWLEDGE.

first impression, case of. See CASE. first-in, first-out. An accounting method that assumes that goods are sold in the order in which they were pur­ chased that is, the oldest items are sold first. - Abbr. FIFO. Cf. LAST-IN, FIRST-OUT; NEXT-IN, FIRST-OUT. first instance, court of. See trial court under COURT. first-inventor defense. Patents. In a suit alleging infringe­ ment ofa business-method patent, a statutory affirma­ tive defense made out by showing that the defendant was using the business method commercially for at least a year before the plaintiff filed the patent application .• The First Inventor Defense Act of 1999 is codified at 35 lJSCA § 273. [Cases: Patents (;:::::>283(1).] first lien. See LIEN. First Lord ofthe Admiralty. Hist. In Britain, a minister and one of the lord commissioners who presided over the navy.• The First Lord was assisted by other lords, called Sea Lords, and various secretaries. First Lord ofthe Treasury. English law. The chief officer in charge of the treasury.• Today, this position is held by the Prime Minister. first magistrate. See MAGISTRATE (1). first meeting. Archaic. Criminal law. The first contact between a killer and a victim after the killer has been informed ofthe victim's insulting words or conduct that provoked the killing.• If the killing occurred during the first meeting, a murder charge could be reduced to manslaughter. See HEAT OF PASSION. first meeting of creditors. See creditors' meeting under MEETING.

first mortgage. See MORTGAGE. first-mortgage bond. See BOND (3). first name. See personal name under NAME. first-named insured. See primary insured under INSURED.

first of exchange. Archaic. The first in a series of drafts (bills of exchange) drawn in duplicate or triplicate for safety in their delivery, the intention being that the acceptance and payment of anyone of them, usu. the first to arrive, cancels the others in the set. first offender. See OFFENDER. first office action. See OFFICE ACTION. first option to buy. See RIGHT OF PREEMPTION.

first-party insurance. See INSURANCE. first-past-the-post voting. See plurality voting under VOTING.

first policy year. Insurance. The first year of a life­ insurance policy that is to be automatically renewed annually.• This statutory phrase prohibits an insurer from using the policy's suicide exclusion as a defense and refusing payment on the policy when an insured commits suicide after the first year of the policy. The insurer can invoke the suicide exclusion as a defense to payment only if the insured commits suicide in the first policy year. [Cases: Insurance ~~2434(1), 2594(5), 3125.] first purchaser. See PURCHASER (2). first refusal, right of. See RIGHT OF FIRST REFUSAL. first-sale doctrine. (1963) L Copyright. The rule that the purchaser ofa physical copy of a copyrighted work, such as a book or CD, may give or sell that copy to someone else without infringing the copyright owner's exclusive distribution rights .• With regard to that physical copy, the copyright owner's distribution right is said to be exhausted. 17 USCA § 109(a). [Cases: Copyrights and Intellectual Property (;:::::>38.5.] 2. Patents. The principle that the buyer of a patented article has the right to use, repair, and resell the article without interference from the patentee .• The patentee may still retain control of the article through terms in the license or sale contract. See PATENT-EXHAUSTION DOCTRINE. [Cases: Patents (;:::::> 191.] first taker. See TAKER. first-to-file rule. (1969) Civil procedure. 1. The principle that, when two suits are brought by the same parties, regarding the same issues, in two courts ofproper juris~ diction, the court that first acquires jurisdiction usu. retains the suit, to the exclusion of the other court. • The court with the second-filed suit ordinarily stays proceedings or abstains. But an exception exists if the first-filed suit is brought merely in anticipation of the true plaintiff's suit and amounts to an improper attempt at forum-shopping. See ANTICIPATORY FILING. [Cases: Courts (~~)475, 493, 514; Federal Courts (;:::::> 1145.] 2. The doctrine allowing a party to a previously filed lawsuit to enjoin another from pursuing a later~ filed action. - Also termed first-filing rule; first-filed rule; priority-jurisdiction rule. [Cases: Courts (;::'480, 507,508,516; Federal Courts (;:::::> 1145.] first-to-file system. Patents. The practice of granting priority to the first person to file a patent application. • Most ofthe world uses a first-to~file patent system; the only major exception is the United States, which grants priority to the first inventor. Cf. FIRST-TO~INVENT SYSTEM. [Cases: Patents ~-c:>90(1).1 first-to-invent system. Patents. The practice of awarding a patent to the first person to create an invention, rather than the first to file a patent application .• Because the first inventor is not necessarily the first person to file for a patent, an interference hearing is held to decide who is entitled to the patent. This system is used only

in the United States. See CONCEPTION OF INVENTION; I fish royal. Hist. Whales, sturgeon, and porpoises that, when thrown ashore or caught near the English coast, PRIORITY OF INVENTION. Cf. FIRST-TO-FILE SYSTEM. become Crown property. [Cases: Patents (::::090(1).] fisk. See FISC. first user. See SENIOR USER. fistuca. See FESTUCA. FISA. abbr. FOREIGN INTELLIGENCE SURVEILLANCE ACT. fithwite. See FUTHWITE. FISC. abbr. UNITED STATES FOREIGN INTELLIGENCE SUR­ fitness for a particular purpose. See implied warranty of VEILLANCE COURT. fitness for a particular purpose under WARRANTY (2). fisc (fisk), n. [Latinfiscusl The public treasury. - Also fitness hearing. See transfer hearing under HEARING. spelled fisk. fit occupantis (fit ahk-ya-pan-tis). [Latin] Hist. It becomes fiscal (fis-kal), adj. (16c) 1. Of or relating to financial the property of the captor. matters . 2. Ofor relating to public finances Five Mile Act. Hist. A 1665 English act prohibiting or taxation 1,47.] force, vb. (14c) To compel by physical means or by legal requirement . force and arms. Hist. Violence. _ The phrase was used in common-law pleading in declarations of trespass and in indictments to denote that the offending act was committed violently. See VI ET ARMIS. force and effect, n. (16c) Legal efficacy <mailing the brief had the force and effect of filing it with the clerk>. _ 1he term is now generally regarded as a redundant legalism. forced abortion. See ABORTION. forced conversion. See CONVERSION (1).

718

forced exile. See EXILE. forced heir. See HEIR. forced labor. lnt'llaw. Work exacted from a person under threat of penalty; work for which a person has not offered himself or herself voluntarily. _ Under the U.N. Convention on Civil and Political Rights (article 8), exemptions from this definition include (1) penalties imposed by a court, (2) compulsory military service, (3) action taken in an emergency, (4) normal civil obli­ Also gations, and (5) minor communal services. termed compulsory labor. forced pooling. See compulsory pooling under POOLING.

forced portion. See LEGITIME. forced resettlement.lnt'llaw. The involuntary transfer of individuals or groups within the jurisdiction of a country whether inside its own territory or into or out of occupied territory. forced respite. See RESPITE. forced sale. See SALE. forced share. See ELECTIVE SHARE. forced unitization. See compulsory unitization under UNITIZATION.

force majeure (fors ma-zhar). [Law French "a superior force"] (1883) An event or effect that can be neither anticipated nor controlled. _ The term includes both acts of nature (e.g., floods and hurricanes) and acts of people (e.g., riots, strikes, and wars). - Also termed force majesture; vis major; superior force. Cf. ACT OF GOD; VIS MAJOR (1).

force-ma;enre clause. (1916) A contractual provision allocating the risk of loss if performance becomes impossible or impracticable, esp. as a result of an event or effect that the parties could not have anticipated or controlled. [Cases: Contracts (;=>309(1).] force-the-vote provision. Mergers & acquisitions. A con­ tractual clause requiring a company's board of direc­ tors to approve a merger transaction and submit it to the shareholders, who then vote on the merger regard­ less of whether the board recommends that the share­ holders approve it when the vote is held. forcible, adj. (15c) Effected by force or threat of force against opposition or resistance. "[In the law of trespass, the] term 'forcible' is used in a wide and somewhat unnatural sense to include any act of physical interference with the person or property of another. To lay one's finger on another person without lawful justification is as much a forcible injury in the eye of the law, and therefore a trespass, as to beat him with a stick. To walk peacefully across another man's land is a forcible injury and a trespass, no less than to break into his house vi et armis. So also it is probably a trespass deliberately to put matter where natural forces will take it on to the plaintiff's land." R.F.v. Heuston, Salmond on the Law of Torts 5 (17th ed. 1977).

forcible detainer. 1. The wrongful retention of posses­ sion of property by one originally in lawful possession,

foreign

719

often with threats or actual use ofviolence. 2. FORCIBLE ENTRY AND DETAINER (2).

forcible entry. (17c) 1. The act or an instance ofviolently and unlawfully taking possession of lands and tene­ ments against the will of those in lawful possession. 2. The act of entering land in another's possession by the use of force against another or by breaking into the premises. forcible entry and detainer. (17c) 1. The act of violently taking and keeping possession oflands and tenements without legal authority. [Cases: Forcible Entry and Detainer C=:>4.] "To walk across another's land, or to enter his building, without privilege, is a trespass, but this in itself, while a civil wrong, is not a crime. However, if an entry upon real estate is accomplished by violence or intimidation, or if such methods are employed for detention after a peaceable entry, there is a crime according to English law, known as forcible entry and detainer. This was a common-law offense in England, although supplemented by English statutes that are old enough to be common law in this country.... It has sometimes been said that there are two separate offenses (1) forcible entry and (2) forcible detainer. This may be true under the peculiar wording of some particular statute, but in general it seems to be one offense which may be committed in two different ways." Rollin M. Perkins & Ronald N. Boyce, Criminal Law487-88 (3d ed. 1982).

2. A quick and simple legal proceeding for regaining possession of real property from someone who has wrongfully taken, or refused to surrender, posses­ sion. - Also termed forcible detainer. See EVICTION; EJECTMENT. [Cases: Forcible Entry and Detainer C=:>6; Landlord and Tenant C=:>287.] "Forcible entry and detainer is a remedy given by statute for the recovery of possession of land and of damages for its detention. It is entirely regulated by statute, and the statutes vary materially in the different states." Benjamin J. Shipman, Handbook of Common-Law Pleading § 74, at 188 (Henry Winthrop Ballantine ed., 3d ed. 1923).

foreclose, vb. (lSc) To terminate a mortgagor's interest in property; to subject (property) to foreclosure proceed­ ings. [Cases: Mortgages C-~J380.] "Should the mortgagor default in his obligations under the mortgage, the mortgagee will seek to 'foreclose', I.e., 'end' or 'close' the mortgagor's rights in the security. After taking the appropriate statutory steps, the mort­ gagee will sell the mortgaged property. If the sale is to someone other than the mortgagor or the mortgagee (a 'third party' sale) the proceeds will go: first, to pay the costs of the foreclosure proceedings; second, to payoff the principal indebtedness and accrued interest; third, if there is anything left over (I.e., any 'equity' existed) this is paid to the mortgagor." Edward H. Rabin, Fundamentals of Modern Real Property Law 1087 (1974).

foreclosure (for-kloh-zhdr)_ (18c) A legal proceeding to terminate a mortgagor's interest in property, instituted by the lender (the mortgagee) either to gain title or to force a sale in order to satisfy the unpaid debt secured by the property. Cf. REPOSSESSION. [Cases: Mortgages (::::: 380.] equitable foreclosure. (1876) A foreclosure method in which the court orders the property sold, and the proceeds are applied first to pay the costs of the

lawsuit and sale and then to the mortgage debt. - Any surplus is paid to the mortgagor. [Cases: Mortgages (:::::>386.) judicial foreclosure. (1839) A costly and time-con­ suming foreclosure method by which the mortgaged property is sold through a court proceeding requir­ ing many standard legal steps such as the filing of a complaint, service ofprocess, notice, and a hearing. ­ Judicial foreclosure is available in all jurisdictions and is the exclusive or most common method of foreclo­ sure in at least 20 states. [Cases: Mortgages C=:>380.] mortgage foreclosure. (1842) A foreclosure ofthe mort­ gaged property upon the mortgagor's default. [Cases: Mortgages C=:>380, 394.] nonjudicial foreclosure. (1916) 1. See power-of-sale foreclosure. 2. A foreclosure method that does not require court involvement. [Cases: Mortgages 329.) power-of-sale foreclosure, (1946) A foreclosure process by which, according to the mortgage instrument and a state statute, the mortgaged property is sold at a non­ judicial public sale by a public official, the mortgagee, or a trustee, without the stringent notice require­ ments, procedural burdens, or delays of a judicial foreclosure. _ Power-of-sale foreclosure is authorized and used in more than half the states. Also termed nonjudicial foreclosure; statutory foreclosure. [Cases: Mortgages C=:>329.] strictforeclosure. (1823) A rare procedure that the mortgagee title to the mortgaged property - without first conducting a sale - after a defaulting mortgagor fails to pay the mortgage debt within a court-speci­ fied period. _ The use of strict foreclosure is limited to special situations except in those few states that permit this remedy generally. [Cases: Mortgages C=:> 384.] tax foreclosure. (1869) A public authority's seizure and sale ofproperty for nonpayment of taxes. [Cases: Taxation (:::::·2922.] foreclosure decree. (1847) 1. Generally, a decree ordering a judicial foreclosure sale. 2. A decree ordering the strict foreclosure of a mortgage. [Cases: Mortgages 483_] foreclosure sale. See SALE_ foregift. Rist. A premium paid for a lease in addition to rent; forehand rent. See FOREHAND RENT (1). foregoer (for-goh-dr). (lSc) Hist. A royal purveyor; a person who buys provisions for the Crown at an appraised (that is, reduced) price while the royal house­ hold travels about the country. forehand rent. Hist. 1. A premium paid by the tenant on the making of a lease, esp. on the renewal of a lease by an ecclesiastical corporation. 2. Generally, rent payable before a lease begins. foreign, adj. (13c) 1. Of or relating to another country . 2. Of or relating to another jurisdic­

tion . - foreigner, n. foreign administration. See ancillary administration under ADMINISTRATION. foreign administrator. See ADMINISTRATOR (2). foreign agent. See AGENT (2). Foreign Agricultural Service. An agency in the U.S. Department of Agriculture responsible for maintain­ ing a worldwide agricultural intelligence and reporting system. - Abbr. FAS. foreign apposer. See APPOSER. foreign assignment. See ASSIGNMENT (2). foreign bill. See BILL (6). foreign bill of exchange. See foreign draft under DRAFT.

foreign bond. See BOND (3). foreign consulate. See CONSULATE. foreign corporation. See CORPORATION. Foreign Corrupt Practices Act. A 1977 federal statute that prohibits United States citizens from offering or paying bribes to foreign officials in order to obtain or maintain a commercial interest, and requires compa­ nies whose securities are listed in the United States to comply with certain accounting practices. 15 USCA § 78dd-l, et. seq. [Cases: BriberyC:::> 1(1).] foreign county. See COUNTY. foreign court. See COURT. foreign creditor. See CREDITOR. foreign divorce. See DIVORCE. foreign document. See DOCUMENT. foreign domicile. See DOMICILE. foreign dominion. Hist. A country that at one time was a foreign state but that by conquest or cession has come under the British Crown. foreign draft. See DRAFT. foreign-earned-income exclusion. (1964) The Internal Revenue Code provision that excludes from taxation a limited amount of income earned by nonresident taxpayers outside the United States. - The taxpayer must elect between this exclusion and the foreign tax credit. IRC (26 USCA) § 91l(a), (b). See foreign tax credit under TAX CREDIT. [Cases: Internal Revenue C:::>4095-4122.J Foreign Emoluments Clause. The clause of the U.S. Constitution prohibiting titles of nobility and the acceptance of a gift, title, or other benefit from a foreign power. U.S. Const. art. I, § 9, cl. 8. - Sometimes short­ ened to Emoluments Clause. foreigner. (ISc) 1. Hist. A person not an inhabitant of a particular city under discussion. 2. A citizen of another country. foreign exchange. (17c) 1. The process of making inter­ national monetary transactions; esp., the conversion of

one currency to that of a different country. 2. Foreign currency or negotiable instruments payable in foreign currency, such as traveler's checks. foreign-exchange market. See MARKET. foreign-exchange rate. The rate at which the currency of one country is exchanged for the currency of another country. foreign guardian. See GUARDIAN. foreign immunity. See IMMUNITY (1). Foreign Intelligence Surveillance Act. A 1978 federal statute that established new procedures and courts to authorize electronic surveillance of foreign intelligence operations in the United States.• 1be Act established the Foreign Intelligence Surveillance Court and the Foreign Intelligence Court of Review. It allows the Attorney General to obtain warrants that authorize electronic surveillance of suspected foreign-intelli­ gence operatives without public disclosure and without a showing of probable cause that criminal activity is involved. Abbr. FISA. [Cases: War and National Emergency Foreign Intelligence Surveillance Court. See U~ITED STATES FOREIGN INTELLIGENCE SURVEILLANCE COURT.

Foreign Intelligence Surveillance Court ofReview. See UNITED STATES FOREIGN INTELLIGENCE SURVEILLANCE COURT OF REVIEW.

foreign judgment. See JUDGMENT. foreign jurisdiction. See Il:RISDICTION. foreign jury. See JURY. foreign law. 1. Generally, the law of another country. 2. Conflict oflaws. The law of another state or of a foreign country. foreign minister. See MINISTER. foreign object. (l7c) An item that appears where it does not belong; esp., an item introduced into a living body, such as a sponge that is left in a patient's body during surgery. _ Ihe discovery rule usu. tolls the statute of limitations for a medical-malpractice claim based on a foreign object. Also termed foreign substance. See FOREIGN SUBSTANCE. [Cases: Health C=;666; Limita­ tion of Actions C-~9S(l3).] foreign port. See PORT. foreign-relations law. See INTERNATIONAL LAW. foreign service. (19c) 1. UNITED STATES FOREIGN SERVICE. 2. FORINSEC SERVICE. 3. Rist. A feudal service performed by a tenant outside of the fee. Foreign Service Institute. A unit in the US. Department of State responsible for training officers and employ­ ees ofthe Foreign Service as well as personnel in other agencies. Abbr. FSI. foreign situs trust. See TRUST. Foreign Sovereign Immunities Act. A federal statute providing individuals with a right of action against foreign governments, under certain circumstances, to the extent the claim arises from the private, as opposed

721

forestalling the market

to the public, acts of the foreign state. 28 USCA §§ 1602-161l. Abbr. FSIA. See RESTRICTIVE PRI~CIPLE OF SOVEREIGN IMMU~ITY. [Cases: International Law 10.31-10.39.] "The Foreign Sovereign Immunities Act (FSIA) of 1976 was designed to provide a set of comprehensive regulations governing access to federal and state courts in this country for plaintiffs asserting claims against foreign states and instrumentalities thereof. The enactment of this legislation responded to the reality that increased contacts between American citizens and companies on the one hand, and foreign states and entities owned by foreign states on the other, as well as a constantly expanding range of govern­ ment activities, had created the need for judicial fora in this country to resolve disputes arisi ng out of these activi­ ties." 14A Charles Alan Wright et aI., Federal Practice and Procedure § 3662, at 160-61 (2d ed. 1998).

foreign state. 1. A foreign country. 2. An American state different from the one under discussion. foreign substance. (17c) A substance found in a body, organism, or thing where it is not supposed to be found . foreign support order. See SUPPORT ORDER. foreign tax credit. See TAX CREDIT. foreign trade zone. See FREE-TRADE ZONE. foreign trust. See foreign-situs trust under TRUST. foreign vessel. See VESSEL. foreign voyage. See VOYAGE. foreign water. See WATER. forejudge, vb. 1. To prejudge; to judge beforehand. 2. Loosely, FORJUDGE. foreman. (15c) 1. See presidingjuror under JUROR. 2. A person who directs the work ofemployees; an overseer, crew chief, or superintendent. foremanship, n. forematron. Hist. The presiding juror in an all-woman jury. forensic (fCl-ren-sik also -zik), ad). [fro Latin forensis "public," fro Latinforum "court"] (17c) 1. Used in or suitable to courts of law or public debate . 2. Rhetorical; argumentative <Tietjen's considerable forensic skills>. 3. Hist. Exterior; foreign. See FORENSIS. forensic engineering. (1976) 'The use of engineering principles or analysis in a lawsuit, usu. through an expert witness's testimony. forensic evidence. See EVIDENCE. forensic linguistics. (1973) The science or technique that evaluates the linguistic characteristics of written or oral communications, usu. to determine identity or authorship. forensic medicine. (1845) The branch of medicine that establishes or interprets evidence using scientific or technical facts, such as ballistics. - Also termed medical jUrisprudence.

forensic pathology. (1959) The specific branch of medicine that establishes or interprets evidence deating with diseases and disorders of the body, esp. those that cause death. forensics (fCl-ren-siks also -ziks). (1963) 1. The art of argumentative discourse. 2. The branch oflaw enforce­ ment dealing with legal evidence relating to firearms and ballistics. forensic services. Hist. In feudal law, the payment of extraordinary aids or the rendition of extraordinary military services. forensis (f~-ren-sis), ad). [fro Latin forum "court"] Roman law. Of or relating to a court oflaw.• An advocate, for example, was sometimes known as a homo forensis. See FORENSIC.

foreperson. See presidingjuror under JUROR. foreseeability, n. (1928) The quality of being reasonably anticipatable.• Foreseeability, along with actual cau­ sation, is an element ofproximate cause in tort law. ­ foreseeable, ad). foreseeable damages. See DAMAGES. forest, n. (13c) Hist. A tract of land, not necessarily wooded, reserved to the king or a grantee, for hunting deer and other game. forestall (for-stawl), vb. (bef. 12c) 1. To prevent (an event, result, etc.). 2. His/. To intercept or obstruct (as a person on a royal highway). 3. Hist. To prevent (a tenant) from coming on the premises. 4. Hist. To intercept (as a deer reentering a forest). 5. Hist. To buy (goods) for the purpose of reselling at a higher price. - At common law, this was an indictable offense. See FORESTALLING THE MARKET. - Also spelled forstall. "[AJ growing town in England might have placed a higher \lalue on grain than a neighboring town with a static popula­ tion, yet traditional patterns of business might continue to send the same amount of grain to both towns. A forestaller would bid against the traditional buyer in the smaller town, obtain the grain, and resell it where it could command a higher price in the larger town. Forestalling did not harm allocative efficiency. Indeed, it was a highly effective means of reallocating scarce goods to their most highly valued uses -- the \lery definition of efficiency. Rather, forestalling was objectionable, and thus prohibited as a restraint of trade, because the bidding process necessarily resulted in higher grain prices in many parts of the country." Stephen F. Ross, Principles ofAntitrust Law 12 (1993).

forestaller, n. 1. A person who forestalls. 2. Hist. One guilty of the offense of forestalling. See FORESTALL (5).

forestalling the market. Hist. 1. The taking possession of commodities on their way to the market. 2. The purchase of goods on their way to the market, with the intention of reselling them at a higher price. 3. The deterrence of having sellers offer their goods at market at a reasonable price; specif., the crime of inhibiting normal trading by persuading sellers to raise their prices on goods or dissuading them from offering the goods in a particular market, or by purchasing as much as possible of certain goods before they reach the market to drive up prices.

forest law. Rist. The body oflaw protecting game and preserving timber. forestry right. A land interest under which a person has the right to enter the land, establish and maintain a crop of trees, harvest them, and construct works for that purpose. [Cases: Logs and Logging Cr~ L] Forest Service. An agency in the U.S. Department of Agriculture responsible for managing the nation's national forests .• The Forest Service also operates the Youth Conservation Corps and the Volunteers in the ~ational Forest programs. [Cases: Woods and Forests 8.] forfeiture (for-fi-ch;lr), n. (14c) 1. The divestiture of property without compensation. 2. The loss of a right, privilege, or property because of a crime, breach of obli­ gation, or neglect of duty.• Title is instantaneously transferred to another, such as the government, a cor­ poration, or a private person. [Cases: Controlled Sub­ stances C=:o 162; Forteitures C=:o 1.] 3. Something (esp. money or property) lost or confiscated by this process; a penalty. - forfeit, vb. - forfeitable, adj. civil forfeiture. (1867) An in rem proceeding brought by the government against property that either facili­ tated a crime or was acquired as a result of criminal activity. [Cases: Controlled Substances (:::;) 162; For­ feitures C=:o L] criminal forfeiture. (1866) A governmental proceeding brought against a person to seize property as punish­ ment for the person's criminal behavior. [Cases: Con­ trolled Substances Forfeitures Cr~, L] forfeiture ofmarriage. Hist. A penalty exacted by a lord from a ward who married without the lord's consent. • The penalty was a money payment double the value that the marriage would otherwise have been worth to the lord. forfeiture ofpay. Military law. A punishment depriv­ ing the guilty party of all or part ofhis or her military pay. 4. A destruction or deprivation of some estate or right because of the failure to perform some contractual obli­ gation or condition. "[When a condition] is not likely to occur until the obligee has relied on the expected exchange by, for example, per­ forming or preparing to perform, ... nonoccurrence of the condition results in the obligee's loss of its reliance interest when the obligee loses the right to that exchange. This loss of reliance interest is often described as 'forfeiture.'" E. Allan Farnsworth, Contracts § 8.4, at 533 (3d ed. 1999).

forfeiture clause. (1804) 1. A contractual provision stating that, under certain circumstances, one party must forfeit something to the other.• Forfeiture clauses are often held to be void, although they are similar to conditions and other qualifications of estates in land. 2. NO-CONTEST CLAUSE. forfeiture restraint. An attempt by an otherwise effec­ tive conveyance or contract to cause a later conveyance to terminate or to make some or all ofthe later convey­

ance subject to termination. Sometimes shortened to restraint. [Cases: Deeds Property C=:o n.] forgavel (for-gav-dl). Hist. A small reserved rent in money; quit-rent. forgery, n. (16c) 1. lhe act offraudulently making a false document or altering a real one to be used as ifgenuine -t;:l5), adj. (17c) Occurring by chance.• A fortuitous event may be highly unfortu­ nate. Literally, the term is neutral, despite its common misuse as a synonym for fortunate . fortuitous collision. See COLLISION. fortuitous event. (1856) 1. A happening that, because it occurs only by chance or accident, the parties could not reasonably have foreseen. 2. An event that, so far as con­ tracting parties are aware, depends on chance. 3. Loui­ siana law. An event that could not have been reasonably foreseen at the time a contract was made. La. Civ. Code art. 1875. - Also termed cas fortuit. See FORCE MAJEURE; UNAVOIDABLE-ACCIDENT DOCTRINE.

Fortune 500. An annual compilation of the 500 largest U.S. corporations as ranked by gross revenues. _ It is published in, and gets its name from, Fortune magazine. forty, n. Archaic. Forty acres ofland in the form of a square .• To determine a forty, a section ofland (640 acres) was quartered, and one of those quarters was again quartered. forty-days court. See COURT OF ATTACHMENTS. forum, n. (I5c) 1. A public place, esp. one devoted to assembly or debate. See PUBLIC FORUM; NON PUBLIC FORUM. 2. A court or other judicial body; a place of jurisdiction. PI. forums, fora. forum actus (for-;:!m ak-t;:ls). [Latin "the forum of the act"] Rist. The place where an act was done. forum competens (for-dm kom-p;:l-tenz). [Latin] Rist. A competent court; a court that has jurisdiction over a case. forum conscientiae (for-dm kon-shee-en-shee-ee). [Latin "the forum of conscience"] Rist. The tribunal or court of conscience.• This court was usu. a court of equity. See COURT OF CONSCIENCE. forum contentiosum (for-dm bn-ten-shee-oh-sdm). [Latin "the forum of contention"] Rist. A court of justice; a place for litigation.

forum contractus

forum contractus (for-am kan-trak-tas). [Latin "the forum of the contract"] Hist. 1. The place where a contract was made, and thus the place ofjurisdiction. 2. The court of the place where a contract was made. forum conveniens (for-am bn-vee-nee-enz). [Latin "a suitable forum"] The court in which an action is most appropriately brought, considering the best interests and convenience of the parties and witnesses. Cf. FORUM NON CONVENIENS. forum domesticum (for-am da-mes-ti-kam). [Latin] Hist. A domestic court. _ This type of court decides matters (such as professional discipline) arising within the organization that created it. forum domicilii (for-am dom-;}-sil-ee-I). [Latin) Hist. The forum or court of the domicile, usu. of the defen­ dant. forum ecclesiasticum (for-;}m e-klee-z[h]ee-as-ti-k;}m). Also termed [Latin] Hist. An ecclesiastical court. judicium ecclesiasticum. forum externum (for-am ek-star-n;}m), n. [Latin "external tribunal"] Eccles. law. A court dealing with legal cases pertaining to or affecting the corporate life of the church. forum inconveniens. See FORUM NON CONVENIENS. forum internum (for-am in-tar-n;}m), n. [Latin "internal tribuna!"] Eccles. law. A court ofconscience; a court for matters of conscience or the confessional. forum ligeantiae rei (for-am lij-ee-an-shee-ee ree-I). [Latin] Hist. The forum of the defendant's allegiance; the court or jurisdiction of the country to which the defendant owes allegiance. forum non competens (for-am non kom-pa-tenz). [Latin] Hist. An inappropriate court; a court that lacks juris­ diction over a case. forum non conveniens (for-am non k;}n-vee-nee-enz). [Latin "an unsuitable court"] Civil procedure. The doctrine that an appropriate forum even though competent under the law - may divest itself of juris­ diction if, for the convenience of the litigants and the witnesses, it appears that the action should proceed in another forum in which the action might also have been properly brought in the first place. Also termed forum inconveniens. [Cases: Courts Federal Courts "Forum non conveniens allows a court to exercise its discre­ tion to aVOid the oppression or vexation that might result from automatically honoring plaintiff's forum choice. However, dismissal on the basis of forum non conveniens also requires that there be an alternative forum in which the suit can be prosecuted. It must appear that jurisdiction over all parties can be secured and that complete relief can be obtained in the supposedly more convenient court. Further, in at least some states, it has been held that the doctrine cannot be successfully invoked when the plaintiff is resident of the forum state since. effectively, one of the functions of the state courts is to provide a tribunal in which their residents can obtain an adjudication of their grievances. But in most instances a balancing of the can· venience to all the parties will be considered and no one factor will preclude a forum non coveniens dismissal. as

726 long as another forum is available." Jack H. Friedenthal et aI., Civil Procedure § 2.17, at 87-88 (2d ed. 1993).

forum originis (for- 1.] 3. The sole right granted by the owner of a trademark or tradename to engage in business or to sell a good or service in a certain area. 4. 'The business or territory controlled by the person or entity that has been granted such a right. commercial franchise. A franchise using local capital and management by contracting with third parties to operate a facility identified as offering a particular brand of goods or services. sports franchise. 1. A franchise granted by a profes­ sional sports league to field a team in that league. 2. The team itself. trial franchise. A franchise having an initial term of limited duration, such as one year. franchise, vb. (14c) To grant (to another) the sole right of engaging in a certain business or in a business using a particular trademark in a certain area. franchise agreement. (1905) The contract between a franchisor and franchisee establishing the terms and conditions of the franchise relationship. - State and federal laws regulate franchise agreements. [Cases:

Antitrust and Trade Regulation C=:>262; Contracts C-~ 202(1).]

franchise appurtenant to land. See FRANCHISE (2). franchise clause. Insurance. A provision in a casualty insurance policy stating that the insurer will pay a claim only if it is more than a stated amount, and that the insured is responsible for all damages if the claim is under that amount. _ Unlike a deductible, which the insured always has to pay, with a franchise clause, once the claim exceeds the stated amount, the insurer pays the entire claim. franchise court. Hist. A privately held court that (usu.) exists by virtue of a royal grant, with jurisdiction over a variety of matters, depending on the grant and whatever powers the court acquires over time. - In 1274, Edward I abolished many of these feudal courts by forcing the nobility to demonstrate by what author­ ity (quo warranto) they held court. If a lord could not produce a charter reflecting the franchise, the court was abolished. - Also termed courts ofthe franchise. "Dispensing justice was profitable. Much revenue could come from the fees and dues, fines and amercements. This explains the growth of the second class of feudal courts, the Franchise Courts. They too were private courts held by feudal lords. Sometimes their claim to jurisdiction was based on old pre-Conquest grants .,. But many of them were, in reality, only wrongful usurpations of private jurisdiction by powerful lords. These were put down after the famous Quo Warranto enquiry in the reign of Edward I." W,J.V. Windeyer, Lectures on Legal History 56-57 (2d ed. 1949).

franchisee. One who is granted a franchise. franchise fee. See FEE (1). franchiser. See FRANCHISOR. franchise tax. See TAX. franchisor. (19c) One who grants a franchise. Also spelled franchiser. francigena (fran-sd-jee-nd). [Law Latin francus "french" + Latin genitus "born"] Hist. 1. A person born in France. 2. Any alien in England; a foreigner. See FRENCHMAN.

francus (frangk-ds). [fro Frenchfranc "free"] Hist. A freeman. francus bancus. See FREE BENCH. francus homo (frangk-Js hoh-moh). Hist. A free man. francus tenens. See FRANK-TENANT. frank, adj. [Law French] Hist. Free. Also spelled fraunc; fraunche; fraunke. frank, n. 1. (cap.) A member of the Germanic people who conquered Gaul in the 6th century. - France received its name from the Franks. 2. A signature, stamp, or mark affixed to mail as a substitute for postage. [Cases: Postal Service C=:>15.] 3. The privilege of sending certain mail free of charge, accorded to certain government officials, such as members of Congress and federal courts. ­ Also termed (in sense 3) franking privilege, [Cases: United States C=:> 12.] - frank, vb.

frankalmoin frankalmoin (frangk-al-moyn). [Law French "free alms"] (I6c) Rist. A spiritual tenure by which a reli­ gious institution held land, usu. with a general duty to pray for the donor.• This tenure differed from the tenure by divine service, which required specific church services, such as a certain number of masses or alms distributions. - Also spelled frankalmoign; franka­ lmoigne. - Also termed almoign; almoin;free alms; libera eleemosyna. See spiritual tenure under TENURE. "Frankalmoin, or free alms, was a survival of Anglo­ Saxon law, and implied simply an indefinite promise to pray for the soul of the donor; but since it was deemed a tenure by which the land was held, the general doctrine of 'services' was applied. On the other hand, in the case of Divine Service, which was much less frequently met with, the tenant promised a definite number of prayers, a duty which might be enforced in the King's courts." A.K.R. Kiralfy, Potter's Outlines of English Legal History 210 (5th ed. 1958).

frank bank. See FREE BENCH. frank-chase. Rist. Free chase; a person's liberty or right to hunt or log within a certain area .• Others holding land within the frank-chase area were forbidden from hunting or logging in it. See CHASE. frank-fee. (ISc) Rist. Freehold land - land that one held to oneself and one's heirs - exempted from all services except homage; land held other than by ancient demesne or copyhold. frank ferm. Rist. An estate in land held in socage, the nature of the fee having been changed from knight's service by enfeoffment for certain yearly services. ­ Also spelled frank-ferme. franking privilege. See FRANK (3). frank-law. Rist. The rights and privileges of a citizen or freeman; specif., the condition of being legally capable of giving an oath (esp. as a juror or witness). See LEGALIS HOMO. "Frank law ... may be understood from Bracton's descrip­ tion of the consequences of lOSing it, among which the principal one was, that the parties incurred perpetual infamy, so that they were never afterwards to be admitted to oath, because they were not deemed to be othesworth, (that is, not worthy of making oath,) nor allowed to give testimony." 1 Alexander M. Burrill, A Law Dictionary and Clossary657-58 (2d ed. 1867).

franklin (frangk-lin). (14c) Rist. A freeman; a freeholder; a gentleman. - Also spelled francling;frankleyn;fran­ kleyne. frankmarriage. (I4c) Rist. An entailed estate in which the donor retains control of the land by refuSing to accept feudal services from the donee (usu. the donor's daughter) for three generations .• If the donee's issue fail in that time, the land returns to the donor. A donor who accepted homage (and the corresponding services arising from it) from the donee risked lOSing control of the land to a collateral heir. After three generations - a time considered sufficient to demonstrate that the line was well established - the donee's heir could insist on paying homage; doing so transformed the estate into a fee simple. - Also termed liberum maritagium. See MARITAGIUM.

730 "Only when homage has been done are we to apply the rule which excludes the lord from the inheritance. This is at the bottom of one of the peculiarities of the 'estate in frankmarriage.' When a father makes a provision for a daughter, he intends that if the daughter has no issue or if her issue fails - at all events if this failure occurs in the course of a few generations - the land shall come back to him or to his heir. Therefore no homage is done for the estate in frankmarriage until the daughter's third heir has entered, for were homage once done, there would be a danger that the land would never come back to the father or to his heir." 2 Frederick Pollock & Frederic W. Maitland, The History of English Law Before the Time of Edward /291 (2d ed. 1899).

frankpledge. (bef. 12c) Rist. A promise given to the sovereign by a group of ten freeholders (a tithing) ensuring the group's good conduct. • The frankpledge was of Saxon origin, but continued after the Norman Conquest. The members of the group were not liable for an injury caused by an offending member, but they did act as bail to ensure that the culprit would appear in court. They were bound to produce a wrongdoer for trial. - Also termed borrow; laughe. See VIEW OF FRANKPLEDGE. Cf. DECENARY. "Since there was no elaborate group of royal officials, the policing of the country had to be arranged for in a special way. The commonest way was to hold each house­ hold responsible for the offenses of any member of it. A further step was taken when, in the time of (nut, a group of ten men was formed who were responsible for each other, in the sense that everyone was security, borh, for the good behavior of the others. This group was called fri-borh, frankpledge, and remained for a long time one of the chief police methods of England." Max Radin, Handbook of Anglo-American Legal History 33-34 (1936).

Franks hearing. (I 979) A hearing to determine whether a police officer's affidavit used to obtain a search warrant that yields incriminating evidence was based on false statements by the police officer. Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674 (1978). frank-tenant. Rist. A freeholder. - Also termed fra ncu 5 tenens. See FREEHOLD. frank-tenement. Rist. A free tenement; a freehold .• This term described both the tenure and the estate. FRAP (frap). abbr. FEDERAL RULES OF APPELLATE PRO­ CEDURE. frater (fray-t;Jr), n. [Latin] Roman law. A brother. frater consanguineus (fray-t;Jr kon-sang-gwin-ee-;Js). A brother or half-brother having the same father. frater germanus (fray-t;Jr j;Jr-may-n;Js). A brother having both parents in common. frater nutricius (fray-t;Jr n[y]oo-trish-ee-;Js). A foster brother who was suckled by the same wet nurse. frater uterinus (fray-t;Jr yoo-t;J-rI-n;Js). A brother or half-brother having the same mother. fraternal, adj. (ISc) l. Of or relating to the relationship of brothers. 2. Of or relating to a fraternity or a fraternal benefit association. fraternal benefit association. A voluntary organiza­ tion or society created for its members' mutual aid and benefit rather than for profit, and whose members have

a common and worthy cause, objective, or interest.• These associations usu. have a lodge system, a gov­ erning body, rituals, and a benefits system for their members. - Also termedfraternal benefit sOciety;fra­ ternity; fraternal lodge; fraternal order. Cf. FRIENDLY SOCIETY. [Cases: Beneficial Associations fraternal insurance. See INSURANCE. fraternal lodge. See FRATERNAL BENEFIT ASSOCIA­ TION. fraternal order. See FRATERNAL BENEFIT ASSOCIA­ TION. fraternal society. See benevolent association under ASSO­ CIATION. fraternity. See FRATERNAL BENEFIT ASSOCIATION.

frater nutricius. See FRATER. frater uterinus. See FRATER. fratres conjurati (fray-treez kon-jd-ray-tI). [Latin "sworn brothers"] Hist. Sworn brothers or companions for the defense of their sovereign or for other purposes. fratriage (fra-tree-ij or fray-). Hist. l. A younger brother's portion of his father's estate, received as an inheritance. • Under feudal law, even though the land was from the father's estate, the younger brother was bound to pay homage to the older brother. 2. A portion ofan inheri­ tance given to coheirs. Also termed fratriagium. fratricide (fra-trd-SId or fray-). (15c) 1. The killing of one's brother or sister. 2. One who has killed one's brother or sister. Cf. SORORICIDE. fratricidal, adj. fraud, n. (14c) 1. A knowing misrepresentation of the truth or concealment of a material fact to induce another to act to his or her detriment. • Fraud is usu. a tort, but in some cases (esp. when the conduct is willful) it may be a crime. - Also termed intentional fraud. [Cases: Fraud (;:=> 1, 3, 16, 68.] 2. A misrepresentation made recklessly without belief in its truth to induce another person to act. [Cases: Fraud (;:=> 13(3).] 3. A tort arising from a knowing misrepresentation, con­ cealment of material fact, or reckless misrepresentation made to induce another to act to his or her detriment. [Cases: Fraud C=> 13(2), 13(3), 16.] 4. Unconscionable dealing; esp., in contract law, the unfair use of the power arising out of the parties' relative positions and resulting in an unconscionable bargain. [Cases: Con­ tracts (;:=> 1.] - fraudulent, adj. "[TJhe use of the term fraud has been wider and less precise in the chancery than in the common·law courts. This followed necessarily from the remedies which they respectively administered. Common law gave damages for a wrong, and was compelled to define with care the wrong which furnished a cause of action. Equity refused specific performance of a contract, or set aside a transac­ tion, or gave compensation where one party had acted unfairly by the other. Thus 'fraud' at common law is a false statement ... : fraud In equity has often been used as meaning unconscientious dealing - 'although, I think, unfortunately,' a great equity lawyer has said." William R. Anson, Principles of the Law of Contract 263 (Arthur L Corbin ed., 3d Am. ed. 1919).

actual fraud. (17c) A concealment or false represen­ tation through a statement or conduct that injures another who relies on it in acting. - Also termed fraud in fact; positive fraud; moral fraud. [Cases: Fraud(;::::;c3.]

advance-fee fraud. A criminal fraud in which the victim is persuaded by the perpetrator to pay "fees" in anticipation of receiving a much larger benefit that is ultimately never delivered .• The perpetrator usu. claims to have, or to represent someone with, a large sum of money that must be immediately transferred out of a foreign country for some compelling reason, such as to avoid seizure by a government. The criminal promises the victim a portion of the money in return for the victim's agreement to open a bank account in the victim's name. The victim then must pay "up front fees" to the designated "bank" and others. Although the Internet has become a favorite tool for this fraud, it has been around for years, beginning with handwrit­ ten or typed letters and later faxes. Because advance­ fee fraud is believed to have Originated in Nigeria, it is also termed 419 fraud after the section ofthe Nigerian penal code designed to punish those who defraud by this method. [Cases: Fraud C:'68.] affiliate click fraud. Click fraud committed by a third party who agrees to host the ad in exchange for payment based on the number of clicks. See click

fraud. affinity fraud. A fraud in which the perpetrator tailors the fraud to target members of a particular group united by common traits or interests that produce inherent trust. • The perpetrator often is or pretends to be a member of the group. Investment scams such as Ponzi or pyramid schemes are common forms of affinity fraud. When a religiOUS group is targeted, it is usu. called religious-affinity fraud. bankfraud. The criminal offense ofknowingly execut­ ing, or attempting to execute, a scheme or artifice to defraud a financial institution, or to obtain property owned by or under the control of a financial institu­ tion, by means of false or fraudulent pretenses, rep­ resentations, or promises. 18 USCA § 1344. [Cases: Banks and Banking C::>509.10, 509.25.] bankruptcy fraud. (1815) A fraudulent act connected to a bankruptcy case; esp., any ofseveral proscribed acts performed knowingly and fraudulently in a bank­ ruptcy case, such as concealing assets or destroying, withholding, or falSifying documents in an effort to defeat bankruptcy-code provisions. See 18 USCA § 152. Also termed criminal bankruptcy; bankruptcy crime. [Cases: Bankruptcy (;::::;c.'3861.] civilfraud. (18c) 1. FRAUD (J). 2. Tax. An intentional­ but not willful evasion of taxes.• The distinction between an intentional (I.e., civil) and willful (I.e., criminal) fraud is not always clear, but civil fraud carries only a monetary, noncriminal penalty. Cf. criminal fraud; TAX EVASION. [Cases: Internal Revenue (':::>5218; Taxation

click fraud. A scheme in which a person or robot repeatedly clicks on a merchant's pay-per-click adver­ tisement on a website for purposes other than viewing the website or making a purchase. [Cases: Telecom­ munications 0=> 1341.] collateralfraud. See extrinsicfraud (1).

common-law fraud. See promissory fraud.

competitor click fraud. Click fraud committed by a

business's competitor in order to increase the amount of money the advertising merchant must pay to the site hosting the ad. See click fraud. constructivefraud. (18c) 1. Unintentional deception or misrepresentation that causes injury to another. ­ Also termed legal fraud; fraud in contemplation of law; eqUitable fraud;fraud in equity. 2. See fraud in law. [Cases: Fraud 0=>5.] "In equity law the term fraud has a wider sense, and includes all acts. omissions, or concealments by which one person obtains an advantage against conscience over another, or which equity or public policy forbids as being to another's prejudice; as acts in violation of trust and confidence. This is often called constructive, legal, or equi· table fraud, or fraud in eqUity." Encyclopedia of Criminology 175 (Vernon C. Branham & Samuel B. Kutash eds., 1949), S.v. "Fraud."

criminal fraud. (18c) Fraud that has been made illegal by statute and that subjects the offender to criminal penalties such as fines and imprisonment.• An example is the willful evasion of taxes accomplished by filing a fraudulent tax return. Cf. civil fraud; larceny by trick under LARCENY. [Cases: Internal Revenue ~ 5263.20; Taxation election fraud. See ELECTION FRAUD. equitable fraud. See constructive fraud (1). extrinsic fraud. (1851) 1. Deception that is collateral to the issues being considered in the case; intentional misrepresentation or deceptive behavior outside the transaction itself (whether a contract or a lawsuit), depriving one party of informed consent or full par­ ticipation.• For example, a person might engage in extrinsic fraud by convincing a litigant not to hire counselor answer by dishonestly saying the matter will not be pursued. Also termed collateral fraud. 2. Deception that prevents a person from knowing about or asserting certain rights. [Cases: Federal Civil Procedure (."::::>2654; Judgment 0=>375,443(1).] 419 fraud. See advance-fee fraud. fraud in contemplation oflaw. See constructive fraud (1). fraud in equity. See constructive fraud (1). fraud in fact. See actual fraud. fraud in law. (17c) Fraud that is presumed under the circumstances, as when a debtor transfers assets and thereby impairs creditors' efforts to collect sums due. - Also termed constructive fraud. fraud in the execution. Seefraud in the factum. fraud in the factum. (1848) Fraud occurring when a legal instrument as actually executed differs from

the one intended for execution by the person who executes it, or when the instrument may have had no legal existence.• Compared to fraud in the induce­ ment, fraud in the factum occurs only rarely, as when a blind person signs a mortgage when misleadingly told that the paper is just a letter. Also termed fraud in the execution;fraud in the making. Cf. fraud in the inducement. [Cases: Contracts 0=>94(1).] fraud in the inducement. (1831) Fraud occurring when a misrepresentation leads another to enter into a transaction with a false impression of the risks, duties, or obligations involved; an intentional mis­ representation of a material risk or duty reasonably relied on, thereby injuring the other party without vitiating the contract itself, esp. about a fact relating to value. - Also termed fraud in the procurement. Cf. fraud in the factum. [Cases: Contracts C='94(1); 24.] Fraud fraud in the making. See fraud in the factum. fraud in the procurement. See fraud in the induce­ ment. fraud on the community. Family law. In a community­ property state, the deliberate hiding or fraudulent transfer of community assets before a divorce or death for the purpose of preventing the other spouse from claiming a half-interest ownership in the property. [Cases: Husband and Wife 0=>265.] fraud on the court. (1810) In a judicial proceeding, a lawyer's or party's misconduct so serious that it undermines or is intended to undermine the integ­ rity of the proceeding .• Examples are bribery of a juror and introduction of fabricated evidence. [Cases: Federal Civil Procedure Judgment 0=>372, 440.] fraud on the market. 1. Fraud occurring when an issuer ofsecurities out misinformation that affects the market price of stock, the result being that people who buy or sell are effectively misled even though they did not rely on the statement itself or anything derived from it other than the market price. [Cases: Securi­ ties Regulation 2. The securities-law claim based on such fraud. See FRAUD-ON-THE-MARKET PRINCIPLE.

fraud on the Patent Office. Patents. A defense in a patent-infringement action, attacking the validity of the patent on the grounds that the patentee gave the examiner false or misleading information or withheld relevant information that the examiner would have considered important in considering patentability.• The scope of prohibited acts is wider than that covered by common-law fraud, and today the defense is gener­ ally called "inequitable conduct before the PTO." If the defense is established, the entire patent is rendered unenforceable. See defense of inequitable conduct under DEFENSE (1). [Cases: Patents C- 97.] hidden fraud. See fraudulent concealment under CON­ J

CEALMENT.

733 insurance fraud. Fraud committed against an insurer, as when an insured lies on a policy application or fab­ ricates a claim. intrinsicfraud. (1832) Deception that pertains to an issue involved in an original action .• Examples include the use of fabricated evidence, a false return of service, perjured testimony, and false receipts or other commercial documents. [Cases: Judgment 373,441.] legal fraud. See constructive fraud (1). long-firm fraud. The act of obtaining goods or money on credit by falsely posing as an established business and having no intent to pay for the goods or repay the loan. mailfraud. (1918) An act offraud using the U.S. Postal Service, as in making false representations through the mail to obtain an economic advantage. 18 USCA §§ 1341-1347. [Cases: Postal Service ~35.] moral fraud. See actual fraud. positive fraud. See actual fraud. promissory fraud. (1934) A promise to perform made when the promisor had no intention of performing the promise. - Also termed common-law fraud. [Cases: Fraud ~ 12.] religious-affinity fraud. See affinity fraud. tax fraud. See TAX EVASION. wire fraud. (1955) An act of fraud using electronic communications, as by making false representations on the telephone to obtain money.• The federal Wire Fraud Act provides that any artifice to defraud by means of wire or other electronic communications (such as radio or television) in foreign or interstate commerce is a crime. 18 USCA § 1343. [Cases: Tele­ communications fraud, badge of. See BADGE OF FRAUD. fraudare (fraw-dair-ee), vb. [Latin] Roman law. To defraud. fraud by hindsight. Hist. Securities. A claim of fraud based on the assumption that a corporation deliber­ ately misled investors by issuing optimistic financial statements or forecasts and later reporting worse-than­ expected results. Suits for fraud by hindsight were common in the early 19908. Congress eliminated this claim in the Private Securities Litigation Reform Act of 1995. 15 USCA §§ 78u-4(b). [Cases: Securities Regula­ tion C=>60.27.J fraude (frawd). [French] Civil law. Fraud committed in performing a contract. Cf. DOL. fraudfeasor (frawd-fee-zdr). A person who has commit­ ted fraud. - Also termed defrauder. fraud in the execution. See fraud in the factum under FRAUD.

fraud on creditors. See FRAUDULENT CONVEYANCE (1). fraud on the community. In a community-property state, the deliberate hiding or fraudulent transfer of

fraudulent conveyance

community assets before a divorce or death for the purpose of preventing the other spouse from claiming a half-interest ownership in the property. fraud-on-the-market principle. Securities. The doctrine that, in a claim under the antifraud provisions of the federal securities laws, a plaintiff may presumptively establish reliance on a misstatement about a securi­ ty's value without proving actual knowledge of the fraudulent statement - if the stock is purchased in an open and developed securities market. _ This doctrine recognizes that the market price of an issuer's stock reflects all available public information. The presump­ tion is rebuttable. Also termed fraud-on-the-market theory. See fraud on the market under FRAUD. [Cases: Securities Regulation ~60.25.] frauds, statute of. See STATUTE OF FRAUDS. fraudulent act. Conduct involving bad faith, dishonesty, a lack of integrity, or moral turpitude. Also termed dishonest act;fraudulent or dishonest act. fraudulent alienation. 1. The transfer of property with an intent to defraud others, esp. creditors and lien­ holders. 2. The transfer of an estate asset by the estate's administrator for little or no consideration. fraudulent alienee. See ALIENEE. fraudulent banking. The receipt of a deposit by a banker who knew that the bank was insolvent at the time of the deposit. [Cases: Banks and Banking 82(2),83.] fraudulent claim. A false insurance claim. See FRAUD. fraudulent concealment. See CONCEALMENT. fraudulent-concealment rule. See CONCEALMENT RULE.

fraudulent conversion. See CONVERSION (2). fraudulent conveyance. (I7c) 1. A transfer of property for little or no consideration, made for the purpose of hindering or delaying a creditor by putting the property beyond the creditor's reach; a transaction by which the owner of real or personal property seeks to place the property beyond the reach ofcreditors. Also termed fraud on creditors. [Cases: Fraudulent Conveyances 1.] "With respect to the general power which is exercisable by deed, it seems that the principle that the donee's creditors can reach the property subject to the exercised general power will have application only to the so·called fraudu­ lent conveyance. That is to say, if the owned assets of the donee after the donative inter vivos exercise are sufficient to satisfy the creditors, then the exercise of the power will not subject the appointive property to the claims of the creditors; if, on the other hand, the owned assets of the donee are inadequate to satisfy creditors' claims after the exercise of the power. then the transfer resulting from the exercise is likely to fall into the category of the fraudu­ lent conveyance and the creditors will be able to reach the appointive property in the hands of the appointee." Thomas F. Bergin & Paul G. Haskell, Preface to Estates in Land and Future Interests 173 (2d I'd. 1984).

2. Bankruptcy. A prebankruptcy transfer or obligation made or incurred by a debtor for little or no consid­ eration or with the actual intent to hinder, delay, or defraud a creditor.• A bankruptcy trustee may recover

such a conveyance from the transferee if the require­ ments of 11 USCA § 548 are met. Also termed fraud­ ulent transfer. Cf. PREFERENTIAL TRANSFER. [Cases: Bankruptcy (~=, 2641-2651.] fraudulent debt. See DEBT. fraudulent joinder. See JOINDER. fraudulent marriage. See MARRIAGE (1). fraudulent misrepresentation. See MISREPRESENTA­ TION.

fraudulent or dishonest act. See FRAUDULENT ACT. fraudulent pretenses. See FALSE PRETENSES. fraudulent representation. See fraudulent misrepresen­ tation under MISREPRESENTATION. fraudulent sale. See SALE. fraudulent transfer. See FRAUDULENT CONVEYANCE (2). fraus (fraws). [Latin] Deceit; cheating.• For example, a debtor who conveyed property with the specific intent (Jraus) of defrauding a creditor risked having the con­ veyance rescinded. fraus legis (fraws lee-jis). [Latin "fraud on the law"] Roman law. Evasion of the law; specif., doing some­ thing that is not expressly forbidden by statute, but that the law does not want done. fray. See AFFRAY. FRB. abbr. FEDERAL RESERVE BOARD OF GOVERNORS. FRCA. abbr. See FAIR-CREDIT-REPORTING ACT. FRCP. abbr. FEDERAL RULES OF CIVIL PROCEDURE. F.R.D. abbr. Federal Rules Decisions; a series of reported federal court decisions (beginning in 1938) that construe or apply the Federal Rules of Civil and Criminal Procedure .• Also included are rule changes, ceremonial proceedings of federal courts, and articles on federal-court practice and procedure. Often written FRD. FRE. abbr. FEDERAL RULES OF EVIDENCE. Freddie Mac. See FEDERAL HOME LOAN MORTGAGE COR­ PORATION.

free, adj. (bef. 12c) 1. Having legal and political rights; enjoying political and civil liberty . 2. Not subject to the constraint or domination of another; enjoying personal freedom; emancipated . 3. Characterized by choice, rather than by compulsion or constraint . 4. Unburdened . 5. Not confined by force or restraint . 6. Unrestricted and unregulated . 7. Costing nothing; gratuitous . - freely, adv. free, vb. 1. To liberate. 2. To remove (a person, animal, or thing) from a constraint or burden. free agency, n. (ca. 1955) A professional athlete's ability to negotiate an employment contract with any team in the league, rather than being confined to the league's collective-bargaining system.• Free agency is usu.

granted to veteran players who have been in the league for a certain number of years. Cf. RESERVE CLAUSE. ­ free agent, n. free alms. See FRANKALMOIN. free alongside ship. A mercantile-contract term allocat­ ing the rights and duties of the buyer and the seller of goods with respect to delivery, payment, and risk ofloss, whereby the seller must clear the goods for export, and deliver the goods to the wharfbeside the buyer's chosen vessel. • The seller's delivery is complete (and the risk ofloss passes to the buyer) when the goods are placed on the wharfbeside the vessel. The buyer is responsible for all costs of carriage. This term is used only when goods are transported by sea or inland waterway. UCC § 2-319. - Abbr. FAS. Cf. FREE ON BOARD; DELIVERED EX QUAY. [Cases: Sales (~201(4).] free and dear, adj. Unencumbered byany liens; market­ able . free and common socage. See free socage under SOCAGE.

free and equal, adj. (Of an election) conducted so that the electorate has a reasonable opportunity to vote, with each vote given the same effect. [Cases: Elections free bench. Hist. A widow's (and occasionally a wid­ ower's) interest in the deceased spouse's estate .• Free bench gave the surviving spouse a half interest in the estate until death or remarriage. - Also termed francus bancus;frank bank; liber bancus. "The bench in question was, we may guess ... a bench at the fireside. The surviving spouse has in time past been allowed to remain in the house along with the children. In the days when families kept together, the right of the widower or widow to remain at the fireside may have borne a somewhat indefinite character.... By way of 'free bench' the surviving spouse now has the enjoyment of one· half of the land until death or second marriage, whether there has ever been a child of the marriage or no." 2 Frederick Pollock & Frederic W. Maitland, The History of English Law Before the Time of Edward 1419 (2d ed. 1899).

free-bordo (I7c) Hist. 1. A small strip ofland (usu. 2112 feet wide and lying just outside a fence) that the owner of the fenced property was allowed to claim and use. 2. The right of claiming that quantity of land. Also Also termed spelled freebord; free bord; freeboard. francbordus. free carrier. A mercantile-contract term allocating the rights and duties of the buyer and the seller of goods with respect to delivery, payment, and risk Ofl088, whereby the seller must clear the goods for export and deliver them to the buyer's chosen carrier at a named place.• The seller's delivery is complete (and the risk ofloss passes to the buyer) when the goods are loaded on the collecting vehicle or otherwise placed at the car­ rier's disposal. The buyer is responsible for all costs of carriage. There are no restrictions on the buyer's choice of carrier. - Abbr. FCA. free chapel. Hist. Eccles. law. A church founded by the Crown (or by a person under royal grant) and not subject to the bishop's jurisdiction.

735

freedom of the city "[T]hose onely are Free-chappels. which are of the King's Foundation, and by him exempted from the Jurisdiction of the Ordinary; but the King may licence a Subject to found such a Chappel. and by his Charter exempt it from the Ordinaries Visitation also .... [lIt is called free. in respect of its exemption from theJurisdiction of the Diocesan ...." Thomas Blount, Noma-Lexicon: A Law-Dictionary (1670).

free chase. See CHASE. free city. Int'llaw. A country-like political and territo­ rial entity that, although independent in principle, does not have the full capacity to act according to general international law but is nevertheless a subject of inter­ national law_ freedman (freed-man). (16c) Hist. An emancipated slave. freedom. (bef. 12c) 1. The state of being free or liberated_ 2. A political right. Freedom of Access to Clinic Entrances Act. A 1994 federal statute that provides for criminal sanctions, private civil causes of action, and civil action by the U.S. Attorney General against a person who uses force, threat of force, or physical obstruction to injure, intimi­ date, or interfere with a provider or patient of reproduc­ tive services or who damages a reproductive-services facility. Abbr. FACE. [Cases: Abortion and Birth Control C=.·128.] freedom of assembly. See RIGHT OF ASSEMBLY. freedom of association. (1889) The right to join with others in a common undertaking that would be lawful ifpursued individually.• This right is protected by the First Amendment to the U.S. Constitution. The gov­ ernment may not prohibit outsiders from joining an association, but the insiders do not necessarily have a right to exclude others. Cf. RIGHT OF ASSEMBLY. [Cases:

Constitutional Law (;=-1440-1454.]

freedom ofexpressive association. The constitutional

right of an individual to associate with others, without undue government interference, for the purpose of engaging in activities protected by the First Amend­ ment, such as speech, assembly, and the exercise of religion. freedom ofintimate association. The constitutional right ofprivacy to form and preserve certain intimate human relationships without intrusion by the state because the relationships safeguard individual freedom.• The group relationships protected by the right to freedom of intimate association are familial in nature and are characterized by deep attachments, a high degree of commitment, and the sharing of dis­ tinctly personal aspects of Hfe. The exclusion ofothers is an essential characteristic of these relationships. freedom of choice. (1817) 1. The liberty embodied in the exercise of one's rights. 2. The parents' opportunity to select a school for their child in a unitary, integrated school system that is devoid of de jure segregation. 3. The liberty to exercise one's right of privacy, esp. the right to have an abortion. Also termed right to choose; choice. [Cases: Abortion and Birth Control 102.]

freedom of contract. (1879) The doctrine that people have the right to bind themselves legally; a judicial concept that contracts are based on mutual agreement and free choice, and thus should not be hampered by external control such as governmental interference.• This is the principle that people are able to fashion their relations by private agreements, esp. as opposed to the aSSigned roles ofthe feudal system. As Maine famously said, "[T]he movement of progressive societies has been a movement from Status to Contract." Henry Sumner Maine, Ancient Law 165 (1864). - Also termed liberty ofcontract; autonomy ofthe parties. [Cases: Constitu­ tional Law Cr-'-;) 1118.] "Like most shibboleths, that of 'freedom of contract' rarely. if ever, received the close examination which its importance deserved. and even today it is by no means easy to say what exactly the nineteenth-century judges meant when they used this phrase. At least it may be said that the idea of freedom of contract embraced two closely connected, but none the less distinct, concepts. In the first place it indicated that contracts were based on mutual agreement, while in the second place it emphasized that the creation of a contract was the result of a free choice unhampered by external control such as government or legislative interfer· ence." p.s. Atiyah, An Introduction to the Law of Contract 5 (3d ed. 1981).

freedom of expression. (1877) The freedom of speech, press, assembly, or religion as guaranteed by the First Amendment; the prohibition of governmental inter­ ference with those freedoms. Cf. FREEDOM OF SPEECH. [Cases: Constitutional 1290-1428,1430,1490­ 2304.] Freedom of Information Act. 1he federal statute that establishes gUidelines for public disclosure of docu­ ments and materials created and held by federal agencies. 5 USCA § 552.• The basic purpose of the statute, or of a state statute modeled after it, is to give the public access to official information so that the public will be better informed and the government will be more accountable for its actions. Abbr. FOIA. See REVERSE FOlA SUIT. [Cases: Records (:::::>50-68.] freedom of intimate association. See FREEDOM OF ASSO­ CIATION.

freedom of petition. See RIGHT TO PETITION. freedom of religion. (l6c) The right to adhere to any form of religion or none, to practice or abstain from practicing religious beliefs, and to be free from govern­ mental interference with or promotion of religion, as guaranteed by the First Amendment and Article VI, § 3 of the U.S. Constitution. [Cases: Constitutional Law (;=-1290-1428.] freedom of speech. (17c) The right to express one's thoughts and opinions without governmental restric­ tion, as guaranteed by the First Amendment. - Also termed liberty ofspeech. Cf. FREEDOM OF EXPRESSION. [Cases: Constitutional Law C=·1490-2304.] Freedom of Speech Clause. See SPEECH CLAUSE. freedom of the city. Hist. An immunity or privilege from some burden, esp. from county jurisdiction and

736

freedom of the press

its privilege of municipal taxation and self-government, held under a royal charter. freedom of the press. (l7c) The right to print and publish materials without governmental interven­ tion, as guaranteed by the First Amendment. - Also termed liberty of the press. [Cases: Constitutional Law ~2070-2081.] "'Freedom of the press' has less significance than meets the eye. It is true, of course, that the First Amendment specifically guarantees freedom of the press as well as free speech, and the media often ascribe the freedom they enjoy to the Press Clause. Even the Supreme Court occasionally emits rhetoric that implies as much. But as a matter of positive law, the Press Clause actually plays a rather minor role in protecting the freedom of the press. Most of the freedoms the press receives from the First Amendment are no different from the freedoms everyone enjoys under the Speech Clause. The press is protected from most government censorship, libel judgments, and prior restraints not because it is the press but because the Speech Clause protects all of us from those threats." David A. Anderson, Freedom of the Press, 80 Texas L. Rev. 429, 430 (2002).

freedom of the seas. Int'llaw. The principle that the seas beyond territorial waters are not subject to any coun­ try's control. • Ships on the high seas are subject only to the jurisdiction of the country whose flag they fly, except in cases of piracy, hijacking, hot pursuit from territorial waters, slave trading, and certain rights of approach by warships. - Also termed mare liberum. [Cases: International Law ~7.] freedom-to-create statute. Patents. A law restricting an employer's ability to require employees to assign to the employer all rights to their inventions, even those independently developed. [Cases: Labor and Employ­ ment~309.]

freedom-to-operate search. See

INFRINGEMENT

SEARCH.

free election. See ELECTION (3). free enterprise. (1890) A private and consensual system of production and distribution, usu. conducted for a profit in a competitive environment that is relatively free of governmental interference. See CAPITALISM. free entry, egress, and regress (ee-gres I ree-gres). Hist. A person's right to go on land as often as reasonably necessary.• A tenant could go on land to gather crops still growing after the tenancy expired. Free Exercise Clause. (1950) The constitutional provi­ sion (U.S. Const. amend. 1) prohibiting the govern­ ment from interfering in people's religious practices or forms of worship. - Also termed Exercise Clause. Cf. ESTABLISHMENT CLAUSE. [Cases: Constitutional Law~1302.1

free fishery. See FISHERY (1). free-gas clause. Oil & gas. A provision in an oil-and-gas lease entitling the lessor or the surface owner to use gas produced from the leased property without charge .• Used commonly in colder states, free-gas clauses usu. limit how the gas may be used (e.g., domestic heating and light), how much gas may be used (e.g., not more

than 300 MCF per year), or both. [Cases: Mines and Minerals ~79.5.] freehold, n. (15c) 1. An estate in land held in fee simple, in fee tail, or for term oflife; any real-property interest that is or may become possessory.• At common law, these estates were all created by enfeoffment with livery of seisin. [Cases: Estates in Property~4-7, 12.]2. The tenure by which such an estate is held. - Also termed freehold estate; estate in freehold; freehold interest; franktenement; liberum tenementum. Cf. LEASEHOLD. determinable freehold. See determinable estate under ESTATE

(4).

movable freehold. (18c) The land a seashore owner acquires or loses as water recedes or approaches. [Cases: Navigable Waters ~44.] perpetual freehold. An estate given to a grantee for life, and then successively to the grantee's heirs for life .• The effect of this type of freehold was to keep land within a family in perpetuity, much like a fee tail. "It took the form of a grant 'to A for life, remainder to A's son for life, remainder to that son's son for life', and so on ad infinitum. Such a limitation, if valid, would have been an effective substitute for the fee tail. The courts, however, set their face against this 'perpetual freehold' (as it was some­ times termed), and in Lovelace v. Lovelace (1 S8S) it was held that remainders which did not vest before the deter­ mination of the first life estate would fail ex post facto. Subsequently a number of other, not entirely convincing, reasons were found for invalidating perpetual freeholds, ultimately culminating in what is sometimes termed the 'old' rule against perpetuities, but, more commonly, the rule in Whitby v. Mitchell, taking its name from the case which marked its emphatic reiteration." Peter Butt, Land Law 136 (2d ed. 1988).

freeholder. (15c) Hist. One who possesses a freehold. freeholder's court baron. See COURT BARON. freehold estate. See FREEHOLD. freehold interest. See FREEHOLD. freehold land society. (usu. pl.) Hist. A society in England created to enable mechanics, artisans, and other workers to buy at the lowest possible price freehold land with a sufficient yearly value to entitle the owner to the right to vote in the county in which the land was located. free ice. Hist. Ice in navigable streams that does not belong to the adjacent riparian owner or to another with the right to appropriate it, but that belongs to the person who first appropriates it. free law. Hist. The civil rights enjoyed by a freeman (as opposed to a serf) .• Free law could be forfeited if the freeman was convicted of treason or an infamous crime. freeman. (bef. 12c) 1. A person who possesses and enjoys all the civil and political rights belonging to the people under a free government. 2. A person who is not a slave. 3. Hist. A member of a municipal corporation (a city or borough) who possesses full civic rights, esp. the right to vote. 4. Hist. A freeholder. Cf. VILLEIN. 5. Hist. An

737

freezeout

VASSAL. - Also written free man. Freeman-Walter-Abele test. Patents. An outmoded

allodial landowner. Cf.

two-step judicial test for determining whether a claimed invention is an unpatentable mathematical algorithm. • The test looks first to whether an algorithm is explicit or inherent in the claim, and second to whether a patent would wholly preempt others from using the algorithm. In re Freeman, 573 F.2d 1237 (CCPA 1978); In re Walter, 618 F.2d 758 (CCPA 1980); In re Abele, 684 F.2d 902 (CCPA 1982). The Federal Circuit has said the test has "little, ifany, applicability" after State St. Bank & Trust Co. v. Signature Fin. Group, 149 F.3d 1368 (Fed. Cir. 1998). [Cases: Patents C:":'6.] free market. See open market under MARKET. free of all average. Maritime law. Insurance that covers a total loss only. Abbr. FAA. free on board. (ca. 1924) A mercantile-contract term allocating the rights and duties of the buyer and the seller of goods with respect to delivery, payment, and risk oflos$, whereby the seller must clear the goods for export, and the buyer must arrange for transportation . • The seller's delivery is complete (and the risk of loss passes to the buyer) when the goods pass the transport­ er's rail. The buyer is responsible for all costs ofcarriage. DCC § 2.319. - Abbr. FOB. Cf. FREE ALONGSIDE SHIP; DELIVERED EX SHIP. [Cases: Sales C='77(2).] "In an F.O.B. ('free on board') contract, the goods must be delivered on board by the seller, free of expense to the purchaser, and they are not at the latter's risk until actually delivered on board, when the property in them passes to him. The seller must also give the buyer sufficient notice to enable him to insure against loss during the sea transit. The buyer, on the other hand, must name a ship or autho­ rize the seller to select one. The seller cannot sue for the price until the goods are loaded, and if his inability to load was caused by the buyer's failure to name an effective ship, his only remedy lies in damages. Similarly, F.O.R. means 'free on rail.''' 2 E.w. Chance, Principles of Mercantile Law 86-87 (P.w. French ed., 10th ed. 1951).

FOB destination. A mercantile term denoting that the seller is required to pay the freight charges as far as the buyer's named destination. FOB shipping. A mercantile term denoting that the seller is required to bear the risk of placing the goods on a carrier. [Cases: Sales C::> 201 (4).] free port. See PORT. free ride. (19c) A benefit obtained without paying a fair price.• For example, a competitor who used aerial pho­ tographs ofa plant-construction site to discover secret manufacturing techniques was judicially criticized for getting a free ride, in contrast to others who might spend time and effort legally reverse-engineering the same techniques. free rider. One who obtains an economic benefit at another's expense without contributing to it. - Also written free rider. free seas. See SEA. free socage. See SOCAGE.

Freestone rider. See PUGH CLAUSE. free trade, n. (17c) The open and unrestricted import and export of goods without barriers, such as quotas or tariffs, other than those charged only as a revenue source, as opposed to those deSigned to protect domestic businesses. Cf. protective tariff under TARIFF (2) . free-trade zone. A duty-free area within a country to promote commerce, esp. transshipment and process­ ing, without entering into the country's market. Also termed foreign trade zone;jree port. freeware. (ca. 1983) Software, esp. open-source code, that is made generally available with express or implicit per­ mission for anyone to use, copy, modify, and distribute for any purpose, including financial gain .• The term "free" refers to usage rights rather than price - a dis­ tinction important in two respects. First, a user may purchase the initial copy of freeware. Second, software available at no cost may not include permission for the software's user to copy, modify, or give away the software. - Also termed free software. Cf. PROPRIE­ TARY SOFTWARE; SEMI-FREE SOFTWARE; SHAREWARE.

free warren. See WARREN. freeze, n. (1942) 1. A period when the government restricts or immobilizes certain commercial activity. creditJreeze. (1922)A period when the government restricts bank-lending. wage-and-priceJreeze. (1943) A period when the gov­ ernment forbids the increase ofwages and prices. 2. A recapitalization of a closed corporation so that the value of its existing capital is concentrated primarily in preferred stock rather than in common stock. • By freeZing capital, the owner can transfer the common stock to heirs without taxation while continuing to enjoy preferred-stock income during the owner's lifetime, while the common stock grows, freeze, vb. 1. To cause to become fixed and unable to increase . 2. To make immobile by government mandate or banking action . 3. To cease physical movement, esp. when ordered by a law enforcement officer . freezee, n. A person or entity subjected to a freeze-out. freezeout, n. Corporations. A transaction in which a shareholder or group ofshareholders obtains the entire common-equity interest in a company while the other shareholders receive cash, debt, or preferred stock in exchange for their common-equity shares. - Also termed going-private transaction. Cf. SQUEEZE-OUT. [Cases: Corporations (;=: 182.3,584; Securities Regu­ lation (;=:60.21.] "A 'freeze-out' is usually accomplished by the merger of a corporation into its parent corporation, where the parent corporation owns a large percentage of the shares of the subsidiary, and the minority shareholders are entitled to minimal distributions of cash or securities. A 'freeze-out' may also be used to connote the situation where so large a number of equity shares are issued to the acquiring

freeze out corporation that the public shareholders own less than 10 percent of the outstanding equity securities and, therefore, have no control over the corporation or any of its decisions. In such event, a short-form merger could later be used to eliminate the minority shareholders." 69A Am. Jur. 2d Securities Regulation - State § 245, at 971 n.60 (1993).

parent-subsidiary freezeout. A transaction in which a parent company uses its majority ownership in a subsidiary to acquire the minority shareholders' interest.

pure freezeout. A transaction in which company insiders or employees acquire all the public shares of the company, often with the help oflenders. Also termed management buyout. See management buyout under BUYOUT. second-step freezeout. A freezeout that takes place as the final phase of a two-step takeover, after the initial phase in which a majority interest is acquired by the purchase ofshares in a tender offer, on the open market, from the issuer, from a control group, or from an issuer-control-group combination. freeze out, vb.!. To subject one to a freeze-out. 2. To exclude a business competitor . freeze-out merger. See cash merger under MERGER. freight. (I5c) 1. Goods transported by water, land, or air; CARGO. 2. The compensation paid to a carrier for transporting goods. [Cases: Carriers ~ 189; Shipping ~144.]

"Freight, in the common acceptation of the term, means the price for the actual transportation of goods by sea from one place to another; but, in its more extensive sense, it is applied to all rewards or compensation paid for the use of ships, including the transportation of passengers." 3 James Kent, Commentaries on American Law *219 (George Comstock ed., 11th ed. 1866).

dead freight. The amount paid by a shipper to a ship­ owner for the ship's unused cargo space. [Cases: Shipping freight absorption. See ABSORPTION (5). freight forwarder. Maritime law. A person or company whose business is to receive and ship goods for others. - A freight forwarder may be an agent of the cargo's owner or ofthe carrier, or may be an independent con­ tractor acting as a principal and assuming the carrier's responsibility for delivering the cargo. - Also termed third-party logistical service provider;forwarding agent. [Cases: Carriers Shipping ~ 112.J freighting voyage. See VOYAGE. freight rate. See RATE. frenchman. Hist. (bef. 12c) A stranger; a foreigner. _ In early English law, this term was applied to all foreign­ ers, even those not from France. F reorganization. See REORGANIZATION (2). fresh, adj. (l3c) Recent; not stale; characterized by newness without any material interval. fresh complaint. (1853) A reasonably prompt lodging of a grievance; esp., a victim's prompt report of a sexual

738

assault to someone trustworthy. [Cases: Criminal Law Rape G=48(1)-49, 49.2.] fresh-complaint rule. The theory that a sexual-assault victim's credibility is bolstered if the victim reports the assault soon after it occurs. _ Most courts no longer rec­ ognize this theory. [Cases: Rape ~48(1)-49, 49.2.] fresh disseisin. See DISSEISIN. fresh fine. See FINE (5). fresh force. Hist. Force, such as disseisin or deforcement, newly done. - This term refers to force used in a town, and for which a remedy (the Assize of Fresh Force) existed. See assize offresh force under ASSIZE (8). fresh pursuit. (17c) 1. The right ofa police officer to make a warrantless search of a fleeing suspect or to cross jurisdictional lines to arrest a fleeing suspect. [Cases: Arrest 66(3); Automobiles C=)349(12).] 2. The right of a person to use reasonable force to retake property that has just been taken. - Also termed hot pursuit. fresh start. (1857) Bankruptcy. The favorable financial status obtained by a debtor who receives a release from personal liability on prepetition debts or who reorga­ nizes debt obligations through the confirmation and completion of a bankruptcy plan. [Cases: Bankruptcy ~366;

Cr'"".:)2363.1.]

Friday market. See MARKET. friendly amendment. See AMENDMENT (3). friendly fire. (1976) 1. A fire burning where it is intended to burn, yet capable of causing unintended damage. 2. Military or police gunfire that injures one's own side. friendly-parent law. A statute that requires or allows a judge to consider as a factor in awarding custody the extent to which one parent encourages or thwarts the child's relationship with the other parent. friendly-parent principle. Family law. The theory that if one parent is more likely to support the child's rela­ tionship with the other parent after a divorce is granted, then that more supportive parent should be awarded custody. - This theory has been criticized as fundamen­ tally flawed because (1) a court may not consider the legitimate fears and concerns that motivate a parent's "unfriendly" behavior, and (2) the theory's simplic­ ity discourages a parent from revealing anything negative about the other parent to the child, even if relevant to the child's safety, for fear of being viewed as too hostile. - Also termed friendly-parent doctrine; friendly-parent paradigm. friendly society. (18c) In Britain, a voluntary association, supported by subSCriptions or contributions, for the purpose ofprOViding financial relief to ill members and to their widows and children upon death .• Friendly societies are regulated by statute. See benevolent asso­ ciation under ASSOCIATION. Cf. FRATERNAL BENEFIT ASSOCIATION.

friendly subpoena. See SUBPOENA.

friendly suit. (ISc) A lawsuit in which all the parties have agreed beforehand to allow a court to resolve the issues. _ Friendly suits are often filed by settling parties who wish to have a judgment entered. friendly suitor. See WHITE

KNIGHT.

friendly takeover. See TAKEOVER. friend ofthecourt. (1816) 1. AMICUS CURIAE. 2. In some jurisdictions, an official who investigates and advises the court in domestic-relations cases involving minors. - The friend of the court may also help enforce court orders in those cases. [Cases: Child Custody C::::'417, 421,613,616; Infants (;::::J208.] friend-of-the-court brief. See amicus brief under BRIEF. fringe benefit. See BENEFIT. frisk, n. (l8c) A pat-down search to discover a concealed weapon. Also termed pat-down. See STOP AND FRISK. Cf. SEARCH (1). [Cases: Arrest C::::'63.5(8); Automobiles (;::::c349.5(lO); Searches and Seizures C~70.1 frivolous, adj. (ISc) Lacking a legal basis or legal merit; not serious; not reasonably purposeful . frivolous appeal. See APPEAL. frivolous claim. See CLAIM (4). frivolous defense. See DEFENSE (1). frivolous suit. See SUIT. FRM. See fixed-rate mortgage under MORTGAGE. frolic (frol-ik), n. Torts. An employee's significant devia­ tion from the employer's business for personal reasons. - A frolic is outside the scope ofemployment, and thus the employer is not vicariously liable for the employee's actions. Cf. DETOUR. [Cases: Labor and Employment (;::::c3061(1).) front, n. (14c) 1. The side or part of a building or lot that is open to view, that is the principal entrance, or that faces out to the open (as to a lake or ocean); the foremost part of something . frontage assessment. See ASSESSMENT. frontager (fr;m-tij-dr), n. (17c) A person owning or occu­ pying land that abuts a highway. river, seashore, or the like. front-end load. See loan fund under MUTUAL FUND. front-end money. See SEED

MONEY.

front foot. (1863) A measurement used to calculate a frontage assessment. Also termed abutting foot. [Cases: Municipal Corporations C::::'469.J front-foot rule. (1872) The principle that an improve­ ment cost is to be apportioned among several proper­ ties in proportion to their frontage, without regard to the benefits conferred on each property. - Also termed front-foot plan. [Cases: Municipal Corporations C=:' 469.J frontier. For trade purposes, an international boundary. front money. See SEED MONEY. front-page citation. See CITATION (4). front-page drawing. See DRAWING. frontpay. Labor law. Court-awarded compensation for the post-judgment effects of continuing employment discrimination. Cf. BACKPAY. [Cases: Civil Rights 1571.] front-running, 11. Securities. A broker's or analyst's use of nonpublic information to acquire securities or enter into options or futures contracts for his or her own benefit, knowing that when the information becomes public, the price of the securities will change in a pre­ dictable manner. _ 'Ihis practice is illegal. Front-run­ ning can occur in many ways. For example, a broker or analyst who works for a brokerage firm may buy shares in a company that the firm is about to recommend as a strong buy or in which the firm is planning to buy a large block of shares. See INSIDER TRADING. front wages. See WAGE. frottage. (ca. 1935) Sexual stimulation by rubbing the genitals against another person. - This may be accom­ plished without removing clothing. When a child is involved, it is a form of sexual abuse. frozen account. See blocked account under ACCOL"NT. frozen asset. See ASSET. frozen deposit. See DEPOSIT (2;). FRS. abbr. FEDERAL RESERVE SYSTEM. FRTIB. abbr. FEDERAL RETIREMENT THRIFT INVEST­ MENTBOARD.

fructuarius (fr322.]

fructus naturales (frak-tils nach-a-ray-leez). [Latin "natural fruits"] The natural produce ofland or plants and the offspring of animals.• Fructus naturales are considered part of the real property.

fructus pecudum (frak-tas pek-ya-dam). [Latin "fruits of the herd"] The produce or increase of flocks or herds.

fructus pendentes (frak-tds pen-den-teez). [Latin "hanging fruits"] Fruits not yet severed or gathered; fruits united with that which produces them.

fructus percepti (frak-tas par-sep-tI). [Latin "gathered fruits"] Roman & civil law. Fruits that have been gathered.

fructus rei alienae (frak-tas ree-I ay-lee-ee-nee or al-ee-). [Latin "fruits of another's property"] The fruits of another's property; fruits taken from another's estate.

740 3. Something (such as evidence) obtained during an activity or operation 309(1).]

self-induced frustration. (1926) A breach of contract

after being separated from it, and so becoming in law "fruits."

caused by one party's action that prevents the per­ formance.• 1he phrase is something of a misnomer, since self-induced frustration is not really a type of frustration at all but is instead a breach of contract.

fructus stantes (frak-tas stan-teez). [Latin "standing

temporary frustration. (1950) An occurrence that

fructus separati (frak-tas sep-a-ray-tr). [Latin "sepa­ rated fruits"] Roman & civil law. The produce ofa thing

fruits"] Fruits that have not yet been severed from the stalk or stem.

fructuum perceptio (frak-choo-;ml pdr-sep-shee-oh). [Latin] Roman & civil law. The rightful taking of the produce of property by a person who does not own the property. fruges (froo-jeez). [Latin "fruits" or "crops"] Roman & civil law. Edible produce or crops; esculents.

frugi aut bonae famae (froo-jI awt boh-nee fay-mee). [Latin) Hist. Frugal or of good reputation.

prevents performance and legally suspends the duty to perform for the duration of the event.• If the burden or circumstance is substantially different after the event, then the duty may be discharged.

2. Contracts. The doctrine that if a party's principal purpose is substantially frustrated by unanticipated changed circumstances, that party's duties are dis­ charged and the contract is considered terminated. ­ Also termed frustration ofpurpose. Cf. IMPOSSIBILITY (4); IMPRACTICABILITY; MISTAKE. [Cases; Contracts C=>309.]- frustrate, vb.

fruit. (14c) 1. The produce or product ofsomething (as of land or property). 2. Civil law. Income or goods derived or produced from property without a diminution ofthe property's inherent value.

frustrum terrae (fras-tram ter-ee). [Latin] Hist. A piece

civil fruit. Civil law. Revenue derived from a thing by

evidence on the admissibility of scientific evidence. • It required that the tests or procedures must have gained general acceptance in their particular field. Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). In Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S.Ct. 2786 (1993), the Supreme Court held that scientific evidence must meet the requirements of the Federal Rules of Evidence, not the Frye test, to be

operation oflaw or by reason of a juridical act, such as lease or interest payments, or certain corporate distributions. La. Civ. Code art. 551. See FRUCTUS CIVILES.

naturalfruit. Civil law. A product of the land or of animals.• Examples are crops and eggs. La. Civ. Code art. 2317. See FRUCTUS NATURALES.

of land.• This usu. referred to a fragment of land remaining after a survey.

Frye test. The defunct federal common-law rule of

741

full blood

in 1255 to produce a uniform legal code, much of which was incorporated into localfueros . • Louisi­ ana's system of acquets and gains was adapted from the Fuero Real. fugam fecit (fyoo-gJm fee-sit). [Law Latin] Hist. He fled; FSIA. abbr. FOREIGN SOVEREIGN IMMUNITIES ACT. he has made flight. • When a jury made this finding in FSIS. abbr. FOOD SAFETY AND INSPECTION SERVICE. a felony or treason trial, the defendant's property was subject to forfeiture. FSLIC. abbr. FEDERAL SAVINGS AND LOAN INSURANCE CORPORATION. fugere. See FUER. FSS. abbr. FEDERAL SUPPLY SERVICE. fugere in facta. See fuer in fait under FUER. FST. See field sobriety test under SOBRIETY TEST. fugere in lege. See fuer in ley under FUER. F.Supp. abbr. Federal Supplement, a series of reported fugitation (fyoo-jJ-tay-shJn). (18c) Hist. A sentence decisions of the federal district courts (from 1932 to or declaration of fugitive status that was pronounced 1998), the u.S. Court of Claims (1932 to 1960), and the against an accused person for failing to answer a citation u.S. Customs Court (from 1949 to 1998, but renamed and appear. • The effect was that the person forfeited the Court of International Trade in 1980).• It is the his or her goods and chattels. - fugitate, vb. first of the Federal Supplement series. fugitive. (14c) 1. A person who flees or escapes; a refugee. F.Supp.2d. abbr. The second series of the Federal Supple­ 2. A criminal suspect or a witness in a criminal case ment, which includes decisions offederal district courts who flees, evades, or escapes arrest, prosecution, and the Court ofInternational Trade from 1997 to the imprisonment, service of process, or the giving of tes­ present. • Some of the F.Supp. volumes contain cases timony, esp. by fleeing the jurisdiction or by hiding. See from 1998 and some of the F.Supp.2d volumes contain 18 USCA § 1073. - Also termed (in sense 2) fugitive cases decided in 1997. from justice. FTA. abbr. FEDERAL TRANSIT ADMINISTRATION. fugitive-disentitlement doctrine. An equitable rule that allows a trial or appellate court to limit a fugitive's FTC. abbr. FEDERAL TRADE COMMISSION. access to civil and criminal courts in the United States. FTCA. abbr. FEDERAL TORT CLAIMS ACT. [Cases: Action C::=> 13; Criminal Law C::=> 1026.10(7).] FTDA. abbr. FEDERAL TRADEMARK DILUTION ACT. fugitive-dismissal rule. The principle that an appel­ FTO search. See INFRINGEMENT SEARCH. late court may dismiss a criminal defendant's appeal if the defendant is a fugitive. [Cases: Criminal Law C::=> FTP. See FILE-TRANSFER PROTOCOL. 1131(5).] FTS. abbr. FEDERAL TECHNOLOGY SERVICE. Fugitive Felon Act. A federal statute that makes it a FTT. abbr. FAILURE TO THRIVE. felony to flee across state lines to avoid state-felony fuer (fyoo-Jr). [Law French "to flee"] Flight from the prosecution or confinement, or to avoid giving testi­ law. - Also termed fugere. mony in a state-felony case. 18 USCA § 1073. [Cases: fuer in fait (fyoo-Jr in fay). [Law French "flight in fact"] Escape C::=> 1.] Actual flight from the law. - Also termed fugere in fugitive from justice. See FUGITIVE. facta. fugitive's goods. Hist. The goods that a person forfeited fuer in ley (fyoo-Jr in lay). [Law French "flight in law"] as a result of fleeing. Legal flight from the law.• If the accused failed to fugitive-slave laws. Hist. Federal statutes passed in 1793 appear, the law treated that failure as flight. - Also and 1850 providing for the surrender and return of termed fugere in lege. slaves who had escaped and fled to a free territory or a fuero (foo-wer-oh). Spanish law. 1. A forum; court. 2. free state. [Cases: Slaves C::=>9.] The territory in which a court has the power to act. 3. fugitive warrant. See WARRANT (1). A privilege enjoyed by some but not others. 4. A custom having the force oflaw. 5. Hist. A collection of local, fugitivus (fyoo-jJ-tI-VJS), n. [Latin] Roman law. A usu. customary, laws.

runaway slave; a fugitive. Fuero Juzgo (hooz-goh). Hist. A 7th-century Visig­ fugue (fyoog). (16c) An abnormal state of conscious­ othic code that was revised and incorporated into ness in which one appears to function normally but the laws of 13th-century Spain.• The code contains on recovery has no memory of what one did while in the earliest known laws of community property. In that condition. the 18th century, much of the Fuero Juzgo was incor­ full adversary hearing. See adjudication hearing under porated into the Code Napoleon. In the 19th century, HEARING. vestiges of the Fuero Juzgo were incorporated into the full age. See age of majority (1) under AGE. Spanish Civil Code. full bench. See full court under COURT. Fuero Real (ray-ahl). Hist. A collection of the ancient full blood. See BLOOD. customs of Castile, collected by order of Alfonse X admissible. See DAUBERT TEST. [Cases: Criminal Law C::=>388.1-388.4; Evidence C::=>555.] FSA. abbr. FARM SERVICE AGENCY. FSI. abbr. FOREIGN SERVICE INSTITUTE.

full cash value

full cash value. See VALUE (2). full copy. Equity practice. A complete transcript of a bill or other pleading, with all indorsements and a copy of all exhibits. [Cases: Equity C=·460.] full court. See COURT. full cousin. See COUSIN (1). full-covenant-and-warranty deed. See warranty deed under DEED. full coverage. See COVERAGE. full-crew law. A law that regulates the number of railroad employees required to operate a train, or airline employees required to operate an airplane. [Cases: Railroads (;=>230.] full defense. See DEFENSE (1). full disclosure. See DISCLOSURE (1). full faith and credit. The recognition, acceptance, and enforcement of the laws, orders, and judgments of another jurisdiction; specif., the recognition by one state of another state's legal decisions. [Cases: Judgment (;=>815,828.4; States C=5(2).] Full Faith and Credit Act. A federal statute requiring federal courts to give a state court's judgment the same preclusive effect as the judgment would have under state law. 28 USCA § 1738. See Migra v. Warren City School Dist. Bd. ofEduc., 465 U.S. 75, 81,104 S.Ct. 892, 896 (1984). [Cases: Judgment full-faith-and-credit bond. See general-obligation bond under BOND (3). Full Faith and Credit Clause. (1896) U.S. Const. art. IV, § 1, which requires states to give effect to the acts, public records, and judicial decisions of other states. [Cases: Judgment (;=>815,828.4; States (;=>5(2).] Full Faith and Credit for Child-Support Orders Act. A 1994 federal statute designed to facilitate interstate child-support collection.• Under the Act, the state first issuing a child-support order maintains continuing, exclusive jurisdiction to modify the order as long as the child or one or both of the litigants continue to reside there, unless all the contestants agree in writing to change jurisdiction. An order from one state may be registered for enforcement in another state. 28 USCA § 1738B. [Cases: Child Support (;=>501(1), 506(2), 507, 508(1).] full hearing. See HEARING. fullied. Slang. Hist. See FULLY COMMITTED FOR TRIAL. full indorsement. 1. See irregular indorsement under INDORSEMENT. 2. See special indorsement under INDORSEMENT.

full interdiction. See INTERDICTION (3). full member. See voting member under MEMBER. full name. See NAME. full ownership. See perfect ownership under OWNER­ SHIP.

full-paid stock. See STOCK.

742

full pardon. See absolute pardon under PARDON. full partner. See general partner under PARTNER. full payout lease. See finance lease under LEASE. full performance. See PERFORMANCE. full powers. Int'llaw. An official document deSignat­ ing a person to represent a country for (1) negotiat­ ing, adopting, or authenticating the text of a treaty, (2) expressing the consent of the country to be bound by a treaty, or (3) accomplishing any act with respect to the treaty. full proof. See PROOF. full-reporting clause. 1. Insurance. An insurance-pol­ icy clause that requires the insured to reveal values and that penalizes the insured if the insured revealed less than required in the policy application. Also termed honesty clause. [Cases: Insurance (;=>2169.] 2. An insurance-policy clause providing that the indem­ nity will not exceed the proportion of the loss that the last reported value bears to the actual value. full right. (18c) The union of good title with actual pos­ session. full-service lease. See LEASE. full settlement. See SETTLEMENT (2). full value. See fair market value under VALUE (2). full warranty. See WARRANTY (2). fully administered. (l7c) A plea by an executor or administrator that he or she has completely and legally disposed of all the assets ofthe estate and that the estate has no remaining assets from which a new claim could be satisfied. fully committed for trial, adj. English law. (Of a person) qualified to be indicted, arraigned, and tried .• His­ torically, a defendant went through two hearings that were essentially minitrials to determine whether the evidence against the defendant was sufficient to support the charges. If the hearing magistrate decided there was, then the defendant was fully committed for trial. In modern usage, it means only that the defendant has had at least two bail hearings and has not yet been indicted. Often shortened to fully committed. ­ Formerly also termed (in slang) fullied. fully diluted earnings per share. See EARNINGS PER SHARE.

fully funded, adj. 1. Having sufficient financial resources to meet current payments, even upon bankruptcy . 2. Office; duty; the occupation of an office <presidential function>. [Cases: Officers and Public Employees 110.] functional analog. See Ar;"ALOG. functional depreciation. See DEPRECIATIO~. functional discount. See DISCOUNT. functional disease. See DISEASE. functional feature. Trademarks. A design element that is either physically necessary to construct an article or commercially necessary to manufacture and sell it; a product's attribute that is essential to its use, necessary for its proper and successful operation, and utilitarian rather than ornamental in every detail. - A functional feature is not eligible for trademark protection. [Cases: Trademarks (;::::: 1064, 1065(3).) functionality. (19c) Trademarks. The quality of having a shape, configuration, deSign, or color that is so superior to available alternatives that giving the first user exclusive trademark would hinder competi­ 1064, 1065(3).) tion. [Cases: Trademarks aesthetic functionality. A doctrine that denies pro­ tection to the design of a product or its container when the design is necessary to enable the product to function as intended. functional limitation. Patents. In a patent application, the definition of an invention by what it does rather than what it is. - A functional limitation is not inher­ ently invalid, but it is examined closely because it tends to be too broad, claiming every possible way of doing the same thing. MPEP 2173.05(g). [Cases: Patents C:=> 101(3).] functional obsolescence. See OBSOLESCENCE. functional rejection. See RErECTION. functionary. A public officer or employee. functus officio (f:mgk-tds 886.J 2. A fund segregated by a business to pay unknown costs that may arise in the future. Also termed con­ tingency reserve. executorfund. A fund established for an executor to pay an estate's final expenses. fund in court. (18c) 1. Contested money deposited with the court. See INTERPLEADER. [Cases: Deposits in Court C:=> 1.] 2. Money deposited to pay a contin­ gent liability. general fund. (l7c) 1. A government's primary oper­ ating fund; a state's assets furnishing the means for the support ofgovernment and for defraying the leg­ islature's discretionary appropriations. - A general fund is distinguished from assets ofa special charac­ ter, such as trust, escrow, and special-purpose funds. [Cases: States 15,504-506.] imp rest fund (im-prest). A fund used by a business for small, routine expenses. joint-welfare fund. A fund that is established in collec­ tive bargaining to provide health and welfare benefits to union employees. - the fund is jointly managed by labor and management representatives. - Also termed Taft-Hartley fund. paid-in fund. A reserve cash fund established by a mutual insurance company to pay unforeseen losses. _ The fund is in lieu of a capital stock account. pooled-incomefund. See POOLED-INCOME FUND. public fund. (usu. pl.) 1. The revenue or money ofa gov­ ernmental body.• The term includes not only coins and paper but also bank deposits and instruments representing investments of public money. [Cases: Municipal Corporations 880.] 2. The securities of a state or national government. lCases: States C:=> 122.]

revolvingfund. (1928) A fund whose moneys are con­ tinually expended and then replenished, such as a petty-cash fund.

fund

sinking fund. (I8c) A fund consisting of regular deposits that are accumulated with interest to pay off a long-term corporate or public debt. Abbr. SF. [Cases: Corporations C=:)486; Municipal Corpora­ tions 0=,951.] strike fund. See STRIKE FUND.

Taft-Hartley fund. See jOint-welfare fund.

trust fund. See TRUST FUND.

unsatisfied-judgment fund. (1953) A fund established by a state to compensate persons for losses stemming from an automobile accident caused bv an uninsured or underinsured motorist. [Cases: AU:tomobiles (;:=: 2. (usu, pI.) Money or other assets, such as stocks, bonds, or working capital, available to pay debts, expenses, and the like <Sue invested her funds in her sister's business>, current funds. Assets that can be readily converted into cash. 3. A pool of investments owned in common and managed for a fee; MUTUAL FUND , fund, vb, (18c) 1. To furnish money to (an individual, entity, or venture), esp, to finance a particular project. 2. To use resources in a manner that produces interest. 3. To convert (a debt, esp, an open account) into a long­ term debt that bears interest at a fixed rate, fundamental error. See plain error under ERROR (2), fundamental-fairness doctrine. (1969) 'The rule that applies the principles of due process to a judicial pro­ ceeding, • The term is commonly considered synony­ mous with due process, fundamental interest. See FUNDAMENTAL RIGHT, fundamental law. (I7c) The organic law that establishes the governing principles of a nation or state; esp" CON­ STITUTIONAL LAW, - Also termed organic law; ground­ law, Cf. NATURAL LAW. fundamental-miscarriage-of-justice exception. The doctrine allowing a federal court in a habeas corpus proceeding to address a claim of constitutional error that, although ordinarily unreviewable, is subject to review because of a state-court procedural default that rendered the proceedings basically unfair. • For the exception to apply, among other things, the petitioner must show by a preponderance of the evidence that constitutional error resulted in the conviction of one who is actually innocent. If the defaulted claim applies only to sentencing, the exception permits review of the claim if the petitioner shows by clear and convincing evidence that, but for the constitutional error, no rea­ sonable judge or jury would have imposed the sentence that the petitioner received. [Cases: Habeas Corpus C:~c401.]

fundamental right. (17c) 1. A right derived from natural or fundamental law, 2. Constitutional law, A signifi­ cant component ofliberty, encroachments of which are

744

rigorously tested by courts to ascertain the soundness of purported governmental justifications, • A fundamen­ tal right triggers strict scrutiny to determine whether the law violates the Due Process Clause or the Equal Protection Clause of the 14th Amendment. As enunci­ ated by the Supreme Court, fundamental rights include voting, interstate travel, and various aspects ofprivacy (such as marriage and contraception rights), - Also termed fundamental interest. See STRICT SCRUTINY, Cf. SUSPECT CLASSIFICATION, [Cases: Constitutional Law 3901.] fundamental term. See TERM (2). fundamental trend. See major trend under TREND, fundatio (f~n-day-shee-oh). [Latin "founding" or "foun­ dation"] Hist. The founding of a corporation, particu­ larly an eleemosynary corporation, fundatio incipiens (bn-day-shee-oh in-sip-ee-enz), [Latin "incipient foundation"] The incorporation or grant of corporate powers, fundatio perficiens (f;m-day-shee-oh p~r-fish-ee-enz), [Latin "perfecting foundation"] The endowment or gift of funds to a corporation, funded. See FULLY FUNDED. funded debt. See DEBT, fund in court. See FUND (1), funding, n. (18c) 1. The process of financing capital expenditures by issuing long-term debt obligations or by converting short-term obligations into long-term obligations to finance current expenses; the process of creating a funded debt. 2. The refinancing of a debt before its maturity. - Also termed refunding, 3. The provision or allocation ofmoney for a specific purpose, such as for a penSion plan, by putting the money into a reserve fund or investments, [Cases: Labor and Employ­ ment ~--::>500,] 4. The provision of financial resources to finance a particular activity or project, such as a research study,S. The transfer of property to a trust. fundi publici (f;ln-dr p;lb-l;,-sr), [Latin] Hist, Public lands, fundo annexa (f;ln-doh ~-nek-s. 2. A collection of explanations; a glossary 3045.) 2. The principle that denies workers'-compensation benefits to an employee injured while commuting to or from work. ef. COMMERCIAL-TRAVELER RULE. [Cases: Workers' Compensation (;:::>7l9-757.] going concern. (1881) A commercial enterprise actively engaging in business with the expectation ofindefinite continuance. - Also termed going business. going-concern value. See VALUE (2). going price, n. (I8c) The prevailing or current market value of something. See fair market value under VALUE (2).

going private. The process of changing a public cor­ poration into a close corporation by terminating the corporation's status with the SEC as a publicly held corporation and by having its outstanding publicly held shares acquired by a single shareholder or a small group. [Cases: Securities Regulation C::~'60.23.1 gOing-private transaction. See FREEZE OUT. going public. The process of a company's selling stock to the investing public for the first time (after filing a registration statement under applicable securities laws), thereby becoming a public corporation. [Cases: Securi­ ties Regulation G~) 11.10-1 1.14.] going through the bar. Hist. A daily process in which the court would ask all barristers present whether they had motions to present. _ Ihis practice, which ended in 1873, was conducted according to seniority, except for the last day of a term, when the junior barristers were asked first.

761

good delivery

going to the country. Hist. The act of requesting a a result or inconsistency. - Also termed Baron Parke's jury trial. - A defendant was said to be "going to the rule. Cf. ABSURDITY; MISCHIEF RULE; PLAIN-MEANING country" by concluding a pleading with the phrase RULE; EQUITY-OF-THE-STATUTE RULE. [Cases: Statutes "and of this he puts himself upon the country." Simi­ (;::::> 181(2), 189.] larly, a plaintiff would conclude a pleading with the "[Tlhe 'golden' rule ... allows for a departure from the literal rule when the application of the statutory words in phrase "and this the plaintiff prays may be enquired of the ordinary sense would be repugnant to or inconsistent by the country." Also termed go to the country. Cf. with some other provision in the statute or even when it CONCLt;SION TO THE COUNTRY. would lead to what the court considers to be an absurdity. The usual consequence of applying the golden rule is that going value. See going-concern value under VALUE (2). words which are in the statute are ignored or words which going witness. See WITNESS. are not there are read in. The scope of the golden rule is debatable, particularly so far as the meaning of an 'absur­ gold bond. See BOND (3). dity' is concerned." Rupert Cross, Statutory Interpretation gold certificate. Hist. A banknote issued by the United I 14 (1976). States Treasury from 1863 to 1934 and redeemable in golden-rule argument. A jury argument in which a gold. _ When'the United States abandoned the gold lawyer asks the jurors to reach a verdict by imagining standard in 1933, Congress declared ownership of themselves or someone they care about in the place of gold certificates illegal even though the Treasury con­ the injured plaintiff or crime victim. _ Because golden­ tinued to issue them until mid-1934. The certificates were legalized again in 1964, but they can no longer be i rule arguments ask the jurors to become advocates for the plaintiff or victim and to ignore their obliga­ redeemed for gold. They now have the same status as tion to exercise calm and reasonable judgment, these Federal Reserve notes, which are not redeemable for arguments are Widely condemned and are considered precious metal. Cf. FEDERAL RESERVE NOTE; SILVER improper in most states. [Cases: Trial (;::::> 125(1).] CERTIFICATE. [Cases: United States (;::::>34.] goldsmiths' notes. Hist. Bankers' cash notes; promis­ gold clause. A provision calling for payment in gold. ­ sory notes given by bankers to customers as acknowl­ Gold clauses, which are now void, were once used in edgments of the receipt of money. - This term derives contracts, bonds, and mortgages. from the London banking business, which originally golden handcuffs. Remuneration set at such a high level was transacted by goldsmiths. that the employee earning it cannot leave the firm or gold standard. (19c) A monetary system in which currency company and receive commensurate pay elsewhere. is convertible into its legal equivalent in gold or gold coin. - As a result, the employee often stays in the position - The United States adopted the gold standard in 1900 even if it is otherwise unrewarding or unpleasant. and abandoned it in 1934. Cf. PAPER STANDARD. golden handshake. Corporations. A generous compensa­ i tion package offered to an employee, usu. as an induce­ good, adj. (bef. 12c) 1. Sound or reliable . 2. Valid, effectual, and enforceable; sufficient ment to retire or upon dismissal. under the law . golden parachute. (1981) Corporations. An employ­ good, n. See GOODS. ment-contract provision that grants an upper-level executive lucrative severance benefits - including good and lawful fence. See LAWFUL FENCE. long-term salary guarantees or bonuses - if control good and merchantable abstract of title. See ABSTRACT ofthe company changes hands (as by a merger). Cf. TIN OF TITLE. PARACHUTE. [Cases: Corporations (;::::>308(3).] good and valuable consideration. See valuable consid­ "Key executives may be provided with significant employ· eration under CONSIDERATION (1). ment contract clauses that are triggered only by a change in the firm's control through a sale, merger, acquiSition, good and workmanlike. (18c) (Of a product or service) or takeover. These contract clauses are commonly termed characterized by quality craftsmanship; constructed or golden parachutes. and they generally provide that if control over the employer's business occurs and the new performed in a skillful way or method . sation will be received .... Golden parachutes are useful good behavior. (16c) 1. A standard by which judges are in providing long·term incentives for executives to enter industries in which takeover chances are above average. considered fit to continue their tenure, consisting in the Generally, golden parachutes do not violate public policy." avoicance of criminal behavior. [Cases: Judges (;::::>7.] Kurt H. Decker & H. Thomas Felix II, Drafting and Revising 2. Orderly conduct, which in the context of penal law Employment Contracts § 3.33, at 84 (1991). allows a prisoner to reduce the time spent in prison. Cf. golden rule. The principle that, in construing written good time under TIME. [Cases: Prisons (;=='243.] instruments, a court should adhere to the grammatical good cause. See CAUSE (2).

and ordinary sense of the words unless that adherence would lead to some manifest absurdity; esp., in statu­ good cause shown. See good cause under CAUSE (2).

tory construction, the principle that ifa statute's literal good consideration. See CONSIDERATION (1).

meaning would lead to an absurd or unjust result, or good deed. See DEED.

even to an inconsistency within the statute itself, the good delivery. See DELIVERY.

statute should be interpreted in a way that avoids such

good faith, n. (lSc) A state of mind consisting in (1) honesty in belief or purpose, (2) faithfulness to one's duty or obligation, (3) observance of reasonable com­ mercial standards of fair dealing in a given trade or business, or (4) absence of intent to defraud or to seek unconscionable advantage. - Also termed bona fides. Cf. BAD FAITH. good-faith, adj. 'The phrase 'good faith' is used in a variety of contexts, and its meaning varies somewhat with the context. Good faith performance or enforcement of a contract empha· sizes faithfulness to an agreed common purpose and con· sistency with thejustified expectations of the other party; it excludes a variety of types of conduct characterized as involving 'bad faith' because they violate community standards of decency, fairness or reasonableness. The appropriate remedy for a breach of the duty of good faith also varies with the circumstances." Restatement (Second) of Contracts § 205 cmt. a (1979). "[Glood faith is an elusive idea, taking on different meanings and emphases as we move from one context to another - whether the particular context is supplied by the type of legal system (e.g., common law, civilian, or hybrid). the type of contract (e.g., commercial or consumer), or the nature of the subject matter of the contract (e.g., insur­ ance, employment, sale of goods, financial services, and so on)." Roger Brownsword et aI., "Good Faith in Contract," in Good Faith in Contract: Concept and Context 1, 3 (Roger Brownsword ed., 1999).

good-faith bargaining. Labor law. Negotiations between an employer and a representative of employees, usu. a union, in which both parties meet and confer at reason­ able times with open minds and with a view to reaching an agreement.• The National Labor Relations Act requires good-faith bargaining, and failure to bargain in good faith is considered an unfair labor practice. 29 USCA §§ 151-169. See UNFAIR LABOR PRACTICE. [Cases: Labor and Employment C=:> 11 14.] good-faith exception. (1980) Criminal procedure. An exception to the exclUSionary rule whereby evidence obtained under a warrant later found to be invalid (esp. because it is not supported by probable cause) is none­ theless admissible if the police reasonably relied on the notion that the warrant was valid.• The Supreme Court adopted the good-faith exception in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405 (1984). [Cases: Criminal Law C=,394.4(6).] good-faith improver. A person who makes improve­ ments to real property while actually and reasonably believing himself or herself to be the owner or lawful occupant. • The improver may be entitled to recover the value of the improvements from the true owner or to remove them. See IMPROVEMENT. [Cases: Improve­ ments C=:>4(2).] good-faith margin. See MARGIN. good-faith purchaser. See bona fide purchaser under PURCHASER (1).

good-guy clause. See good-guy guaranty under GUARANTY.

good-guy guaranty, See GUARANTY. good health. Insurance. A state of reasonable healthi­ ness; a state ofhealth free from serious disease .• Good

health, a phrase often appearing in life-insurance policies, does not mean perfect health. Also termed sound health. [Cases: Insurance 3003(8).] "As used in poliCies of insurance, there is no material differ· ence between the terms 'sound health' and 'good health,' and generally it appears that the two terms are consid· ered to be synonymous. Such expressions are comparative terms, and the rule followed generally is that the term 'good health' or 'sound health,' when used in an insurance contract, means that the applicant has no grave, important, or serious disease, and is free from any ailment that serio ously affects the general soundness or healthfulness of his system." 43 Am.Jur. 2d Insurance § 1061, at 1069 (1982).

good jury. See special jury under TURY. good moral character, n. (18c) 1. A pattern of behavior that is consistent with the community's current ethical standards and that shows an absence of deceit or morally reprehensible conduct.• An alien seeking to be naturalized must show good moral character in the five years preceding the petition for naturalization. [Cases: Aliens, Immigration, and Citizenship C=:>703.] 2. A pattern of behavior conforming to a profession'S ethical standards and showing an absence of moral tur­ pitude.• Good moral character is usu. a requirement ofpersons applying to practice a profeSSion such as law or medicine. [Cases: Licenses C=:>20.] good offices. Int'llaw. The involvement of one or more countries or an international organization in a dispute between other countries with the aim of contributing to its settlement or at least easing relations between the disputing countries. good ofthe order. Parliamentary law. A time scheduled, usu. late in a meeting, for informal announcements, comments, and suggestions that do not seek the meet­ ing's immediate action. - Also termed general good and welfare; open forum; open microphone. Goodright. Rist. A name sometimes used as a fictitious plaintiff in an ejectment action .• "John Doe" was used more frequently. - Also termed Goodtitle. Cf. JOHN DOE.

goods. (bef. 12c) I. Tangible or movable personal property other than money; esp., articles of trade or items ofmerchandise .• lhe sale of goods is governed by Article 2 of the UCC. [Cases: Sales 10.] 2. Things that have value, whether tangible or not . "'Goods' means all things (including specially manufactured goods) which are movable at the time of identification to the contract for sale other than the money in which the price is to be paid, investment securities, (Article 8), and things in action. 'Goods' also includes the unborn young of animals and growing crops and other identified things attached to realty as described in the section on goods to be severed from realty (Section 2·107)." UCC § 2-lO5(1).

bulky goods. Goods that are obviously difficult to move because of their nature, their number, or their location. capital goods. Goods (such as equipment and machin­ ery) used for the production of other goods or services. - Also termed industrial goods.

763 consumer goods. Goods bought or used primarily for personal, family, or household purposes, and not for resale or for producing other goods. UCC § 9-102(23). [Cases: Secured Transactions C~ l5.J customers' goods. Insurance. Goods belonging to the customers ofa casualty-insurance policyholder; goods held by a policyholder as a bailee. distressed goods. Goods sold at unusually low prices or at a loss. durable goods. Consumer goods that are designed to be used repeatedly over a long period, such as auto­ mobiles or refrigerators. - Also termed durables; hard goods. fungible goods (f;m-jd-b283.] grandparent visitation. See VISITATION. Grand Remonstrance (ri-mon-strants). Hist. A protest document issued by the House of Commons in 1641, setting forth numerous political grievances against Charles 1. _ The document demanded three primary remedial measures; (1) improvements in the adminis­ tration of justice, (2) appointment oftrustworthy min­ isters, and (3) enforcement of the laws against Roman Catholics. It was the first major split between the Royalist and Parliamentary parties, and it led Charles to seek the arrest of the five members who pushed the document through the Commons. grand serjeanty. See SERJEANTY. Grand Survey. See grand inquest (2) under INQUEST. grange (graynj). (14c) 1. Hist. A farm furnished with all the necessities for husbandry, such as a barn, granary, and stables; esp., an outlying farm that belonged to a religious establishment or a feudal lord. 2. (cap.) A social, educational, and political organization, formally called the National Grange of the Patrons of Husbandry, that informs its members about agricul­ ture-related legislation and proposals, and represents farm interests in lobbying government. - The Grange was formed in 1867 and soon became the foundation of the Granger Movement, a 19th-century political force that protested economic abuses that increased farmers' costs while forcing down prices for agricul­ tural products. Movement followers (called Grangers) controlled several Midwest state legislatures and passed

Granger laws that set maximum rates for railroads, warehouses, and grain elevators. Railroads and other interested parties challenged the constitutionality of these laws in what have become known as the Granger Cases. Granger Cases (grayn-jar). Six U.S. Supreme Court deci­ sions holding that the police power of the states enabled them, through legislation, to regulate fees charged by common carriers, warehouses, and grain elevators. • The cases, decided in 1876, arose out of grangers' (Le., farmers') frustration with the inflated prices they were paying to store and transport their agricultural products. When several state legislatures passed laws regulating those prices, the affected businesses sued to have the laws overturned on grounds that they violated the Commerce Clause and the Due Process Clause of the 14th Amendment. The Court rejected these claims, holding that the activities involved affected the public interest and were therefore subject to the government's regulatory authority. See GRANGE (2). Granger Movement. See GRANGE (2). grant, n. (13c) 1. An agreement that creates a right or interest in favor of a person or that effects a transfer of a right or interest from one person to another. ­ Examples include leases, easements, charges, patents, franchises, powers, and licenses. 2. The formal transfer of real property. [Cases; Deeds 3. 'Ihe document by which a transfer is effected; esp., DEED. 4. The property or property right so transferred. community grant. A grant of real property made by a government (or sometimes by an individual) for communal use, to be held in common with no right to sell. - A community grant may set out specific, communal uses for the property, such as for grazing animals or maintaining a playground. Cf. private grant. [Cases: Public Lands C=>223(4).] escheat grant. A government's grant of escheated land to a new owner. Also termed escheat patent. [Cases; Escheat (;::::>8(1).] imperfect grant. 1. A grant that requires the grantor to do something before the title passes to another. Cf. perfect grant. 2. A grant that does not convey all rights and complete title against both private persons and government, so that the granting person or political authority may later disavow the grant. See Paschal v. Perex, 7 Tex. 368 (1851). inclusive grant. A deed or grant that describes the boundaries ofthe land conveyed and excepts certain parcels within those boundaries from the convey­ ance, usu. because those parcels ofland are owned or claimed by others. Also termed inclusive deed. office grant. A grant made by a legal officer because the owner is either unwilling or unable to execute a deed to pass title, as in the case of a tax deed. See tax deed under DEED. perfect grant. A grant for which the grantor has done everything reqUired to pass a complete title, and the

769

grantee has done everything required to receive and enjoy the property in fee. Cf. imperfect grant (1). private grant. A grant of real property made to an indi­ vidual for his or her private use, including the right to sell it. - Private grants made by a government are often found in the chains of title for land outside the original 13 states, esp. in former Spanish and Mexican possessions. Cf. community grant. 5. SUBSIDY (1). grant, vb. (13c) 1. To give or confer (something), with or without compensation . 2. To formally transter (real property) by deed or other writing . [Cases: Deeds C=>3.] 3. To permit or agree to . 4. To approve, warrant, or order (a request, motion, etc.) . 5. Int'llaw. See SUBSIDY (3). grantback, n. (1956) A license-agreement provision requiring the licensee to assign or license back to the licensor any improvements that the licensee might make to a patent or other proprietary right. [Cases: Patents (:=213.] grant deed. See DEED. grantee. (lSc) One to whom property is conveyed. grantee-grantor index. See INDEX (1). grant-in-aid. (19c) 1. A sum ofmoney given by a govern­ mental agency to a person or institution for a specific purpose; esp., federal funding for a state public program. [Cases: United States (::-=>82(2).)2. Hist. AID (1). granting clause. (l8c) The words that transfer an interest in a deed or other instrument, esp. an oil-and-gas lease. - In an oil-and-gas lease, the granting clause typically specifies the rights transferred, the uses permitted, and the substances covered by the lease. [Cases: Deeds (:=> 28-37; Mines and Minerals C~73, 73.1.) grant of rights. Copyright. A copyright owner's pre­ publication assignment to the publisher ofall rights in exchange for a payment or an advance on royalties. grantor. (I7c) 1. One who conveys property to another. [Cases: Deeds 30.] 2. SETTLOR (1). grantor-grantee index. See INDEX (1). grantor-retained annuity trust. See TRUST. grantor-retained income trust. See TRUST. grantor-retained unitrust. See TRUST. grantor's lien. See vendor's lien under LIE~. grantor trust. See TRUST. grant to uses. Hist. A conveyance oflegal title to real property to one person for the benefit of another. ­ If, tor example, A conveyed land to B and his heirs to the use of C and his heirs, B - the feoffee to uses acquired seisin in and had possession of the land and was considered the legal owner. C the cestui que use - was considered the equitable owner of the land

gratuitous consideration

and was entitled to the land's rents, profits, and benefits. Because the cestui que use did not have seisin in the land, he was not subject to feudal payments. From the 13th century torward, the grant to uses was an increas­ ingly popular mode of conveyance. See CESTUI QUE USE; STATUTE OF USES; USE (4). grass hearth. Hist. A tenant's customary service, consist­ ing of the tenant's bringing his plow to the lord's land and plowing it for one day. grassum (gras-;ml). [Law Latin) 1. Scots law. A Single lease payment made in addition to the periodic payments due under an agreement; a payment in addition to the rent paid by a tenant to the landlord. PI. grassums. "Grassum; an anticipation of rent in a gross or lump sum .... In questions with singular successors there is no limitation of the power to take grassums, only the rent must not be thereby diminished so as to be altogether elusory. In regard, however, to lands under entail, the heir in possession must administer the estate secundum bonum et aequum, taking no more of the annually accruing rents and profits than he leaves to descend to his successors. Hence, grassums, as being. in effect, anticipations of the future rents, to the prejudice of succeeding heirs, are held to be struck at by the prohibition against alienation." William Bell, Bell's Dictionary and Digest of the Laws of Scotland 492 (George Watson ed., 7th ed. 1890).

2. GRESSUME. 3. GERSUM (1). 4. GERSUM (2). GRAT. abbr. GRANTOR-RETAINED ANNUITY TRUST. gratia curiae (gray-shee-. ground, vb. (14c) 1. To provide a basis for (something, such as a legal claim or argument) . 2. To base (something, such as a legal principle or judicial decision) on <strict liability is grounded on public policy>. groundage (grown-dij), n. (15c) Hist. Maritime law. A tax or toll levied on a vessel lying in port; the tax or toll so paid. ground annual. l. See ground rent under RENT (1). 2. See FEU DUTY. ground landlord. Hist. The grantor of an estate on which ground rent is reserved. See ground rent under RENT (1).

ground-law. A fundamental law. See FUNDAMENTAL LAW. "~If the power of a sovereign or of a government is limited by a ground-law, written or unwritten, a treaty cannot override that constitution," Theodore D. Woolsey, Introduction to the Studyoflntemational Law§ 103, at 167 (5th ed. 1878).

ground lease. See LEASE. groundless, adj. (17c) (Of a legal claim or argument) lacking a basis or a rationale . See FRIVOLOUS. ground of action. 1. CAUSE OF ACTION (1). 2. CAUSE OF ACTION (2). ground rent. See RENT (I). ground-rent lease. See ground lease under LEASE. groundwater. See WATER (1). ground writ. See WRIT. group annuity. See ANNUITY.

772

group art unit. Patents. A U.S. Patent and Trademark Office division consisting ofpatent examiners who spe­ cialize in a particular invention's subject matter. [Cases: Patents ~ 104.] group boycott. See BOYCOTT. group director. Patents. The person responsible for directing the operations of an examining group within the U.S. Patent and Trademark Office. grouping-of-contacts theory. See CENTER-OF-GRAVITY DOCTRINE. group insurance. See INSURANCE. group libel. See LIBEL. group litigation. (1936) A set oflawsuits on behalfof or against numerous persons recognized as one litigating entity, such as a civil-rights group. group policy. See master policy under INSURANCE POLICY. growing crops. See CROPS. growing-equity mortgage. See MORTGAGE. growth. The gain, increase, or expansion in value of securities or of a business. growth company. See COMPANY. growth fund. See MUTUAL FUND. growth industry. (1954) An industry or business sector whose revenues and earnings are rising at a faster rate than average. growth management. (1974) Land-use planning. The regulation of a community's rate of growth through zoning ordinances, impact fees, and other measures. See ZONING. [Cases: Zoning and Planning C::::> 1, 86, 245.] growth stock. See STOCK. gruarii (groo-air-ee-I), n. pl. Hist. The principal officers of a forest. • These officers were charged with guarding and enforcing restrictions on the use of timber. See FOREST. grubstake contract. See CONTRACT. grubstaking contract. See grubstake contract under CONTRACT. grundnorm. See basic norm under NORM. Grundy Tariff. See SMOOT-HAWLEY TARIFF ACT. GRUT. abbr. GRANTOR-RETAINED UNITRUST. GSA. abbr. GENERAL SERVICES ADMINISTRATION. GST supertrust. See dynasty trust under TRUST. guarantee (gar-an-tee), n. (17c) 1. The assurance that a contract or legal act will be duly carried out. 2. GUARANTY (1). "In practice, guarantee, n., is the usual term, seen often, for example, in the context of consumer warranties or other assurances of quality or performance. Guaranty, in contrast, is now used primarily in financial and banking contexts in the sense "a promise to answer for the debt of another." Guaranty is now rarely seen in nonlegal writing, whether in G.B. or in the u.s: Bryan A. Garner, A Dictionary of Modern Legal Usage 394 (2d ed. 1995).

guaranty

773

3. Something given or existing as security, such as to fulfill a future engagement or a condition subsequent. [Cases: Guaranty C=> 1.]4. One to whom a guaranty is made. - Also spelled guaranty. [Cases: Guaranty C=>3S.] guarantee, vb. (1Sc) 1. To assume a suretyship obliga­ tion; to agree to answer for a debt or default. [Cases: Guaranty C=> 1.] 2. To promise that a contract or legal act will be duly carried out. [Cases: Guaranty C=> 11.] 3. To security to. guarantee clause. (IS87) 1. A provision in a contract, deed, or mortgage by which one person promises to pay the obligation of another. [Cases: Guaranty 33, 36.] 2. (cap.) U.S. Const. art. IV, § 4, under which the federal government ensures for the states both a republican form of government and protection from invasion or internal insurrection. - The U.S. Supreme Court has consistently treated claims under the Guar­ antee Clause as nonj~sticiable political questions. See Pacific States Tel. & Tel. Co. v. Oregon, 223 U.S. 11S, 82 S.Ct. 224 (1912). guaranteed annual wage plan. Labor law. A wage-pay­ ment method in which the employer agrees either to pay employees a predetermined minimum sum each year or to provide a minimum number of hours of employ­ ment each year. - A wide variety ofguaranteed annual wage plans are used. For example, an employer may agree to pay employees wages for each week in the year, even though work may not be available at certain times of the year. The purpose of such a plan is to provide a stable labor force year-round. guaranteed bond. See BOND (3). guaranteed investment contract. See INVESTMENT CON­ TRACT.

guaranteed-purchase contract. See guaranteed-sale contract under CONTRACT. guaranteed-sale contract. See CONTRACT. guaranteed stock. See STOCK. guarantee of title. Property. A warranty that the title to a piece of real property is vested in a particular person, given by a title company or abstract company, and based on a title searcher's opinion of the status of the property's title. The guarantee is usu. backed by insurance to cover damages resulting from the title searcher's oversight or negligence in finding recorded legal instruments. Cf. title insurance under INSURANCE. [Cases: Abstracts of Title 1; Covenants guarantee stock. See STOCK. guarantee treaty. See TREATY (1). guarantor. (19c) One who makes a guaranty or gives security for a debt. _ While a surety's liability begins with that of the principal, a guarantor's liability does not begin until the principal debtor is in default. Cf. SURETY (1). [Cases: Guaranty ~~29, 33,44.] "A guarantor either guarantees payment or collection, depending on the words used. 'Payment guaranteed' or equivalent words added to a signature mean the signer

will pay the instrument if it is not paid when due without a need for the holder to resort to another party. 'Collection guaranteed' means resort must first be had to others." Fred H. Miller & Alvin C. Harrell, The Law of Modem Payment Systems § 5.02, at 195 (2003).

guarantor ofcollectibility. (1881) One who guarantees a debtor's solvency and is under a duty to pay only if the creditor is unable to collect from the principal debtor after exhausting all legal remedies, including demand, suit, judgment, and any supplementary pro­ ceedings. [Cases: Guaranty C=>33, 45, 77(2).] guarantor of payment. (1814) One who guaran­ tees payment of a negotiable instrument when it is due without the holder first seeking payment from another party. _ A guarantor of payment is liable only if "payment guaranteed" or equivalent words are added to the guarantor's indorsement. [Cases: Guaranty 45, 77.] guarantor trust. See TRUST. guaranty (gar-dn-tee), n. (16c) 1. A promise to answer for the payment of some debt, or the performance of some duty, in case ofthe failure of another who is liable in the first instance. _ The term is most common in finance and banking contexts. While a warranty relates to things (not persons), is not collateral, and need not be in writing, a guaranty is an undertaking that a person will payor do some act, is collateral to the duty ofthe primary obligor, and must be in writing. On the spelling of guaranty vs. guarantee, see the quotation at GUARANTEE (2). Also termed guaranty contract. [Cases: Guaranty 1.] "Both guaranty and warranty are undertakings by one party to another to indemnify the party assured against some possible default or defect. But a guaranty relates to the future, as a collateral promise designed to protect the promisee from loss in case another fails to perform his duty. A warranty relates to the present or past, and is an independent promise designed to protect the promisee from loss in the event that the facts warranted are not as the promisor states them to be when the contract is made. A warranty is broken as soon as it is made if the facts are not as represented, and is enforceable though oral; whereas a guaranty is not breached until a future default occurs, and is unenforceable unless in writing." Laurence P. Simpson, Handbook on the Law of Suretyship 23 (1950). "A transaction of guaranty involves at least three parties: a promisor, a creditor (the person to whom the promise is made), and a debtor although at the time the promise is made, the person denominated the 'creditor' need not have extended the credit to the person denominated as the 'debtor.' The usual guaranty situation arises when the promisor makes a promise to the creditor either as to the solvency of the debtor or as to the payment of the debt." 38 Am. Jur. 2d Guaranty § 1, at 996 (1968).

absolute guaranty. (lSc) 1. An unqualified promise that the principal will payor perform. [Cases: Guaranty C=>42(l).] 2. A guarantor's contractual promise to

perform some act for the creditor - such as paying money or delivering property if the principal debtor defaults. conditional guaranty. (1813) A guaranty that requires the performance of some condition by the creditor

774

guaranty bond

before the guarantor will become liable. [Cases: Guaranty (;::::>42.] contingent guaranty. (1843) A guaranty in which the guarantor will not be liable unless a specified event occurs. continuing guaranty. (1817) A guaranty that governs a course of dealing for an indefinite time or by a succes­ sion of credits. - Also termed open guaranty. [Cases: Guaranty cross-stream guaranty. A guaranty made by a company for the obligation of another company when both are owned by the same parent company or individual. downstream guaranty. 1. A parent corporation's guaranty of a subsidiary's obligations. 2. A guaranty made for a company by a guarantor who is also a partner, member, or stockholder of the company. general guaranty. (l7c) 1. A guaranty addressed to no specific person, so that anyone who acts on it can enforce it. 2. A guaranty for the principal's default on obligations that the principal undertakes with anyone. good-guy guaranty. A limited guaranty by a third-per­ son that leased property or collateral will be kept in good condition and returned to the lessor or lender if a default occurs. - Good-guy guaranties are most commonly associated with real-property leases. Also written good-guy guarantee. - Also termed good-guy clause. [Cases: Guaranty C':::> 36(8).] guaranty ofcollection. (1843) A guaranty that is con­ ditioned on the creditor's having first exhausted legal remedies against the principal debtor before suing the guarantor. See guarantor ofcollectibility under GUARANTOR.

guaranty ofpayment. (1811) A guaranty that is not con­ ditioned on the creditor's exhausting legal remedies against the principal debtor before suing the guaran­ tor. See guarantor ofpayment under GUARANTOR. irrevocable guaranty (i-rev-;}-k"-b,,l). (1898) A guaranty that cannot be terminated unless the other parties consent. [Cases: Guaranty (;::::>24.] limited guaranty. (1831) An agreement to answer for a debt arising from a Single transaction. - Also termed noncontinuing guaranty. [Cases: Guaranty (;:~38(1).]

open guaranty. See continuing guaranty revocable guaranty. (1936) A guaranty that the guaran­ tor may terminate without any other party's consent. [Cases: Guaranty special guaranty. (18c) 1. A guaranty addressed to a particular person or group of persons, who are the only ones who can enforce it. [Cases: Guaranty 29, 32.] 2. A guaranty that names a definite person as obligee and that can be accepted only by the person named. specific guaranty. (l8c) A guaranty of a single debt or obligation.

upstream guaranty. A guaranty made by a corporate subsidiary for the parent corporation's obligations. 2.

GUARANTEE (1).

guaranty bond. See BOND (2).

guaranty company. See surety company under

COMPANY.

guaranty contract. See GUARANTY (1). guaranty fund. See FUND (1). guaranty insurance. See INSURANCE. guaranty letter of credit. See standby letter of credit under LETTER OF CREDIT. guaranty stock. See STOCK. guaranty treaty. See guarantee treaty under TREATY (] ).

guard. See DOORKEEPER. guardage. Hist. 1. WARDSHIP. 2. GUARDIANSHIP. guardhouse lawyer. See JAILHOUSE LAWYER. guardian, n. (15c) 1. One who has the authority and duty to care for another's person or property, esp. because ofthe other's infancy, incapacity, or disability. _ A guardian may be appointed either for all purposes or for a specific purpose. - Abbr. gdn. - Also termed custodian. See CONSERVATOR. Cf. WARD (1). [Cases: 1; Mental Health C-;) 101.] Guardian and Ward chancery guardian (chan-s"r-ee). A guardian appointed by a court of chancery to manage both the person and the estate of the ward. [Cases: Guardian and Ward (;::::>10, 17,36.] domestic guardian. A guardian appointed in the state in which the ward is domiciled. foreign guardian. A guardian appointed by a court in a state other than the one in which the ward is domiciled. _ A foreign guardian cares for the ward's property that is located in the state of appointment. 166; Mental Health [Cases: Guardian and Ward (;::='194.] general guardian. A guardian who has general care and control of the ward's person and estate. [Cases: Guardian and Ward (;::::>29,36; Mental Health 484.] guardian ad litem (ad h-tem or -t"m). (18c) A guardian, usu. a lawyer, appOinted by the court to appear in a lawsuit on behalf of an incompetent or minor party. Abbr. GAL Also termed special advocate; special guardian; law guardian. Cf. NEXT FRIEND; attorney ad litem under ATTORNEY. [Cases: Infants (;::::>76,205; Mental Health H[llt is necessary to determine whether the lawyer has been appointed as a guardian ad litem (GAL) charged with representing the child's best interests, or as an advocate, serving as counsel to the child .... From the distinction between guardian and advocate flow a series of impor­ tant consequences, including such matters as whether the attorney may file motions and examine witnesses, whether the attorney may file a report with the court. and whether the attorney may testify. Moreover, in most jurisdictions a GAL has an absolute quasi·judicial immunity for lawsuits

775

guardian of the poor for negligence .... Although a non-lawyer cannot serve as counsel to the child, such an individual might be a GAL or 'special advocate' in some states. Courts have struggled to clarify these roles, and define how children's representa· tives may participate in different types of proceedings." Homer H. ClarkJr. & Ann Laquer Estin, Domestic Relations: Cases ana Problems 1078 (6th ed. 2000).

guardian by custom. Hist. A person who, under local custom, had the right to act as a minor's guardian. guardian by election. A guardian chosen by a ward who would otherwise be without one. [Cases: Guardian and Ward C=> 19.] guardian by estoppel. See quasi-guardian. guardian by nature. Hist. The parental guardian ofan heir apparent who has not yet reached the age of21. • Although the common law recognized the father as a guardian by nature and the mother as one only after the father's death, most states have given both parents equal rights ofguardianship over their children (see, e.g., N.Y. Dom. ReI. Law § 81). - Also termed natural guardian. [Cases: Guardian and Ward C=>4.] guardian by nurture. Hist. The parental guardian of a child who is not the heir apparent, lasting until the child reaches the age of 14. Also termed guardian for nurture. "There are also guardians for nurture, which are, of course, the father or mother, till the infant attains the age of fourteen years and, in default of father or mother, the ordinary usually assigns some discreet persons to take care ofthe infant's personal estate, and to provide for his maintenance and education." 1 William Blackstone, Com·

mentaries on the Laws of England 449 (1765).

guardian by statute. See statutory guardian. guardian de son tort (d;:) sawn [or son] tor[t]). See quasi-guardian. guardian for nurture. See guardian by nurture. guardian in chivalry. Hist. A guardian who, by virtue ofknight's service, had custody ofthe body and lands of a male heir under 21 or a female heir under 14. • This type of guardian had no accountability for profits. guardian in socage. New York law. A guardian for a child who has acquired lands by descent.• A guardian is usu. a relative who could not possibly inherit from the child. This type of guardianship applies to both the person and the property of the child and, histori­ cally, lasted only until the child was 14, when the child was allowed to select a guardian; now it lasts until the child reaches age 18 or is emancipated. guardian ofproperty. See guardian ofthe estate. guardian of the estate. A guardian responsible for taking care of the property of someone who is inca­ pable of caring for his or her own property because of infancy, incapacity, or disability. - Also termed guardian ofproperty. [Cases: Guardian and Ward 1,36; Mental Health (;:.=>211, 216.] guardian of the person. A guardian responsible for taking care of someone who is incapable of caring for himself or herself because of infancy, incapacity,

or disability. [Cases: Guardian and Ward 29; Mental Health C=> 1Ol.] law guardian. See guardian ad litem. natural guardian. 1. Hist. The eldest son's father, until the son turned 21. 2. In the absence of statute, the father of a legitimate child until the child reaches the age of 21. • A father of illegitimate children may be appointed as their guardian upon the mother's death. 3. Most commonly and by statute, either the father or the mother of a minor child - each bearing the title Simultaneously.• If one parent dies, the other is the natural guardian. See guardian by nature. [Cases: Guardian and Ward ~4.] partial guardian. A guardian whose rights, duties, and powers are strictly limited to those specified in a court order. quasi-guardian. A guardian who assumes that role without any authority. - Such a person may be made to account as guardian. Also termed guardian by estoppel; guardian de son tort. [Cases: Guardian and WardC=>7.] special guardian. (17c) 1. A guardian who has special or limited powers over the ward's person or estate. - Examples are guardians who have custody of the estate but not of the person, those who have custody of the person but not of the estate, and guardians ad litem. Also termed (in civil law) curator ad hoc. See CURATOR (2). 2. See guardian ad litem. [Cases: Mental Health C=>495.] standby guardian. A parent-designated guardian who is appointed to assume responsibility for a child at a future date if the child's parent becomes incapable of caring for the child but who does not divest the parent of custodial rights. - Several states have enacted statutes providing for a standby guardian in the case of a terminally ill single parent. A standby guardian assumes responsibility for a child during periods of the parent's incapacity and upon the parent's death . [Cases: Guardian and Ward (;:::) 10.] statutory guardian. A guardian appointed by a court haVing special statutory Jurisdiction. - Also termed guardian by statute. successor guardian. An alternate guardian named in a parent's will against the possibility that the first nominee cannot or will not serve as guardian. [Cases: Guardian and Ward C=>27; Mental Health (~178.1 testamentary guardian. A guardian nominated by a parent's will for the person and property of a child until the child reaches the age of majority. 2. Hist. A mesne lord who was entitled to treat an infant heir's lands for all practical purposes as the lord's own, enjoying fully their use and whatever profits they yielded.• At the end of the guardianship, when the heir reached majority, no accounting was owed by the mesne lord. guardian of the poor. Hist. A person in charge of the i relief and maintenance of the poor in a parish. ­

guardian of the spiritualities

Guardians of the poor administered poor-relief funds raised under the Poor Relief Act of 1601. - The function is now performed by local authorities. guardian of the spiritualities. Eccles. law. A person who exercises the spiritual and ecclesiastical jurisdiction of a diocese during a vacancy in the see or the absence of the bishop. guardian ofthe temporalities. Eccles. law. The person to whom custody of the secular possessions of a vacant see or abbey is committed by the Crown. - Temporalities (secular possessions) are the land, revenue, and tene­ ments that archbishops and bishops have had annexed to their sees. guardianship. OSc) 1. The fiduciary relationship between a guardian and a ward or other incapacitated person, whereby the guardian assumes the power to make deci­ sions about the ward's person or property. - A guard­ ianship is almost always an involuntary procedure imposed by the state on the ward. Cf. CONSERVATOR­ SHIP; INTERDICTION. [Cases: Guardian and Ward 1; Mental Health ~ 101.] 2. The duties and responsibili­ ties of a guardian. Also termed GUARDAGE. ancillary guardianship. A subservient and subsid­ iary guardianship in a state other than that in which guardianship is originally granted. [Cases: Guardian and Ward ~ 166-172; Mental Health guardianship of the estate. A guardianship in which the guardian can make decisions only about matters regarding the ward's assets and property. [Cases: Guardian and Ward (,'::::'033; Mental Health (::::::;>211.] guardianship ofthe person. A guardianship in which the guardian is authorized to make all significant decisions affecting the ward's well-being, includ­ ing the ward's physical custody, education, health, activities, personal relationships, and general welfare. [Cases: Guardian and Ward ~29; Mental Health (;:: 101.] plenary guardianship. A guardianship in which the guardian can make decisions about both the ward's estate and the ward's person. [Cases: Mental Health 101.] standby guardianship. A guardianship in which a parent deSignates a guardian to assume responsibil­ ity for a child at a future date, if the child's parent becomes incapable of caring for the child, but without divesting the parent of custodial rights. gubernator navis (g[yJoo-bdr-nay-tdf nay-vis). [Latin "ship helmsman"] Roman law. The pilot or steersman of a ship. - The gubernator navis could be sued for damages ifhe negligently caused a collision. guerrilla warfare. See WARFARE. guest. (Be) 1. A person who is entertained or to whom hospitality is extended. 2. A person who pays for services at an establishment, esp. a hotel or restaurant. [Cases: Innkeepers 3. A nonpaying passenger in a motor vehicle. [Cases: Automobiles (;:::c 181(2).]

776

business guest. (1942) Torts. See

BUSINESS VISITOR

(1).

social guest. Torts. A guest who is invited to enter or remain on another person's property primarily for private entertainment as opposed to entertainment open to the general public. See LICENSEE (2). [Cases: Negligence (::::::;> 1041.J guest statute. (1914) A law that bars a nonpaying pas­ senger in a noncommercial vehicle from suing the host-driver for damages resulting from the driver's ordinary negligence. - Though once common, guest statutes remain in force in only a few states. Also termed automobile-guest statute. Cf. FAMILY-PURPOSE RULE. [Cases: Automobiles C--= 181.] guidage. Hist. 1. A toll or fee for guiding a traveler through strange or dangerous territory. 2. The act of guiding a traveler through strange or dangerous ter­ ritory. guild. (I4c) 1. A group of persons sharing a common vocation who unite to regulate the affairs of their trade in order to protect and promote their common vocation; a voluntary society or fraternity of persons employed in the same trade or craft, formed for the mutual benefit and protection of its members, who pay a fee (a geld or gild) for its general expenses. ­ Also termed (in senses 1 and 2) trade guild. 2. Hist. A company or corporation. guildhall. (l4c) Hist. 1. The meeting place of a guild. ­ Also spelled gildhall. 2. The chief hall of a city, used for holding court and the meetings of the municipal corporation. guild rent. See RENT (1). guilt, n. (bef. 12c) The fact or state ofhaving committed a wrong, esp. a crime 201.] ''The writ of habeas corpus, by which the legal author­ ity under which a person may be detained can be chal­ lenged, is of immemorial antiquity. After a checkered career in which it was involved in the struggles between the common-law courts and the Courts of Chancery and the Star Chamber, as well as in the conflicts between Parlia· ment and the crown. the protection of the writ was firmly written into English law by the Habeas Corpus Act of 1679. Today it is said to be 'perhaps the most important writ known to the constitutional law of England ....'" Charles Alan Wright, The Law of Federal Courts § 53, at 350 (5th ed. 1994) (quoting Secretary of State for Home Affairs v. O'Brien, [1923] A.C. 603, 609).

habeas corpus ad deliberandum et recipiendum (hay­ bee-as kor-p;}s ad di-lib-;}-ran-dam et ri-sip-ee-en­ dam). [Law Latin "that you have the body to consider and receive"] Hist. A writ used to remove a person for trial from one county to the county where the person allegedly committed the offense. Cf. EXTRADITION. habeas corpus ad faciendum et recipiendum (hay­ bee-as kor-p;}s ad fay-shee-en-dam et ri-sip-ee-en­ ddm). [Law Latin "that you have the body to do and receive"] Hist. A writ used in civil cases to remove the case, and also the body of the defendant, from

an inferior court to a superior court. Also termed habeas corpus cum causa. See CERTIORARI. habeas corpus ad prosequendum (hay-bee-;)s kor-pas ad prahs-a-kwen-d;}m). [Law Latin "that you have the body to prosecute"]. A writ used in criminal cases to bring before a court a prisoner to be tried on charges other than those for which the prisoner is currently being confined. [Cases: Criminal Law habeas corpus ad respondendum (hay-bee-ds kor- PdS ad ree-spon-den-d;}m). [Law Latin "that you have the body to respond"] Hist. A writ used in civil cases to remove a person from one court's custody into that of another court, in which the person may then be sued. habeas corpus ad satisfaciendum (hay-bee-;}s kor-pds ad sat-is-fay-shee-en-d~m). [Law Latin "that you have the body to make amends"] In England, a writ used to bring a prisoner against whom a judgment has been entered to some superior court so that the plaintiff can proceed to execute that judgment. habeas corpus ad subjiciendum (hay-bee-as kor-pds ad sab-jis-ee-en-d;}m). [Law Latin "that you have the body to submit to"] A writ directed to someone detaining another person and commanding that the detainee be brought to court. - Usu. shortened to habeas corpus. [Cases; Habeas Corpus habeas corpus ad testificandum (hay-bee-;}s kor-pds ad tes-ti-fi-kan-dam). [Law Latin "that you have the body to testify"] Hist. A writ used in civil and criminal cases to bring a prisoner to court to testify. [Cases: Witnesses C"::' 18.J habeas corpus cum causa. See habeas corpus ad facien­ dum et recipiendum. Habeas Corpus Act. 1. One ofthe four great charters of English liberty (31 Car. 2, 1679), securing to English subjects speedy relief from all unlawful imprison­ ments.• The other three great charters are Magna Carta, the Petition of Right (3 Car. 1, 1628), and the Bill of Rights (1 Wm. & M. 1689). The Habeas Corpus Act does not apply in Scotland; the corresponding statute is the Criminal Procedure Act of 1701, ch. 6. 2. A statute deriving ultimately from the English statute and enacted in the United States as a constitutional guarantee of personal liberty. [Cases: Habeas Corpus (:=>201-9l3.]

habendum clause (ha-ben-dam). (1829) 1. 1he part of an instrument, such as a deed or will, that defines the extent of the interest being granted and any condi­ tions affecting the grant. • The introductory words to Also the clause are ordinarily to have and to hold. termed to-have-and-to-hold clause. [Cases: Deeds 120.] 2. Oil & gas. The provision in an oil-and-gas lease

habitual residence

779

defining how long the interest granted to the lessee will extend.• Modern oil-and-gas leases typically provide for a primary term a fixed number of years during which the lessee has no obligation to develop the premises - and a secondary term (for "so long there­ after as oil and gas produced") once development takes place. Most jurisdictions require production of paying quantities to keep the lease in effect. - Often short­ ened to habendum. Also termed term clause. [Cases: Mines and Minerals ''This part of the deed was originally used to determine the interest granted, or to lessen, enlarge, explain or qualify the premises. But it cannot perform the office of divesting the estate already vested by the deed; for it is void if it be repugnant to the estate granted. It has degenerated into a mere useless form; and the premises now contain the specification of the estate granted, and the deed becomes effectual without any habendum. If, however, the premises should be merely descriptive, and no estate mentioned, then the habendum becomes efficient to declare the intention; and it w',11 rebut any implication arising from the silence of the premises." 4 James Kent, Commentaries on American Law *468 (George Comstock ed., 11th ed. 1866),

habendum et tenendum (ha-ben-d;)m et t-moht). See HALLMOTE. ham (ham or am). (bef. 12c) 1. A place of dwelling; a village.• This word now usu. appears in compound form at the end of place names, such as Buckingham. 2. A small (esp. enclosed) pasture; a piece ofland. - Also spelled hamm. Cf. HAMLET. hamel. See HAMLET. hameleta. See HAMLET. hamesucken (haym-s;>k-;m), n. (bef. 12c) Scots law. 1. Assault on a householder within the house after breaking in to commit the assault or to commit theft. 2. The crime of housebreaking or burglary accompanied by violence .• This term derives from Anglo-Saxon law (hamso en), and literally meant" breaching the peace of another's home." Also spelled hamesecken; hameso­ ken. Also termed hamfare. "Burglary, or nocturnal housebreaking, burgi latrocinium, which by our ancient law was called hamesecken, as it is in Scotland to this day, has always been looked upon as a very heinous offence ...." 4 William Blackstone, Commentaries on the Laws of England 223 (1769).

hamfare. See HAMESGCKEN. hamlet. (bef. 12c) A small village; a part or member of a vill. • A hamlet in a rural community might consist of no more than a store, a church, and a few residences. ­ Also termed hamel; harneleta; hamleta. See VILL. Cf. HAM.

hamleta. See HAMLET. hammer, n. Slang. A forced a sale at public auction . See forced sale under SALE. Hammurabi, Code of. See CODE OF HAMMURABI. hanaper (han-;>-p;>r), n. [Law Latin hanaperium «hamper"] (14c) Hist.1. A basket or hamper used by the Chancery to store writs and returns. 2. The treasury of the Chancery, funded from the fees charged for writs. Cf. FISCUS.

782

Hanaper Office. His!. An office formerly belonging to the common-law jurisdiction of the Chancery Court.• The term derives from the storage ofwrits in a hamper (in hanaperio). Crown writs, on the other hand, were stored in the Petty Bag Office. The Hanaper Office was abolished in 1842. See BAGA. hand, n. 1. A person's handwriting . 4. (usu. pl.) Possession . 5. Assistance . 6. A measure oflength equal to four inches, used in measuring the height of equines, esp. horses . [Cases: Weights and Measures (;:::;:-3.] 7. Hist. An oath . 8. One of two sides or aspects ofan issue or argument . hand, vb. To give; to deliver . handbill. (I8c) A written or printed notice displayed, handed out, or posted, usu. to inform interested people of an event or of something to be done .• Posting and distribution of handbills is regulated by ordinance or statute in most localities. hand down, vb. (17c) To announce or file (a judgment) in a case .• The term was originally used in connection with an appellate-court opinion sent to the court below; it was later expanded to include any decision by a court on a case or point under consideration. [Cases: Appeal and Error (;:::;:-1181, 1182; Federal Courts (;:::;:-921.] handfasting. 1. See handfast marriage (3) under MAR­ RIAGE (1). 2. See handfast marriage (4) under MARRIAGE (1).

handfast marriage. See MARRIAGE (1). Hand formula. (1972) A balancing test for determin­ ing whether conduct has created an unreasonable risk of harm, first formulated by Judge Learned Hand in United States v. Carroll Towing Co., 159 F.2d 169 (2d Cif. 1947).• Under this test, an actor is negligent if the burden of taking adequate precautions against the harm is outweighed by the probable gravity ofthe harm multiplied by the probability that the harm will occur. [Cases: Negligence (;:::;:-215.] ''The legal standard applicable to most unintentional tort cases is that of negligence, defined by Judge Learned Hand as follows: the defendant is gUilty of negligence if the loss caused by the aCCident, multiplied by the probability of the accident's occurring, exceeds the burden of the tions that the defendant might have taken to avert This is an economic test.... Although the Hand formula is of relatively recent origin, the method that it capsulizes has been the basic one used to determine negligence ever since negligence was first adopted as the standard to govern accident cases." Richard A. Posner, Economic Analysis of Law § 6.2, at 122-23 (2d ed. 1977).

handhabend (hand-hab-;>nd), adj. (14c) Rist. (Of a thief) caught in possession of a stolen item.

783

handhabend, n. [fro Old English aet haebbendre handa "at or with a having hand"] Hist. 1. The bearing ofstolen goods in hand or about the person. Cf. BACKBEREND. 2. A thief or another person caught carrying stolen goods. 3. Jurisdiction to try a person caught carrying stolen goods. - Also spelled hand-habende. handicap. See DISABILITY (2). handicapped child. See CHILD. hand money. Money paid in hand to bind a bargain; earnest money paid in cash. See EARNEST MONEY. hand note. See NOTE (1). handsale. Hist. A sale memorialized by shaking hands. • Over time, handsale also came to refer to the earnest money given immediately after the handshake. In some northern European countries, shaking hands was necessary to bind a bargain. This custom some­ times persists for oral contracts. The Latin phrase for handsale was venditio per mutuam manuum complex­ ionem ("a sale by the mutual joining of hands"). - Also spelled handsel. hands-off agreement. (1986) A noncompete contrac­ tual provision between an employer and a former employee prohibiting the employee from using infor­ mation learned during his or her employment to divert or to steal customers from the former employer. [Cases: Contracts ~ U8.] hand up, vb. (1930) (Of a grand jury) to deliver (an indict­ ment) to a criminal court. handwriting. (15c) Evidence. 1. A person's chirography; the cast or form ofwriting peculiar to a person, includ­ the size, shape, and style of letters, and whatever individuality to one's writing. [Cases: Evidence 2. Something written by hand; a writing specimen.• Nonexpert opinion about the genuineness of handwriting, based on familiarity not acquired for litigation purposes, can authenticate a document. Fed. R. Evid. 901(b)(2). [Cases: Criminal Law ~452(4);; Evidence ~480, 561.) hang, vb. (1848) 1. (Of a jury) to be unable to reach a verdict . See hung jury under JURY. [Cases: Criminal Law ~'867; Federal Civil Procedure 1974; Trial ~316.12. To suspend a person above the ground by a rope tied around the person's neck in order to cause the person's death. _ The standard past tense of the verb in sense 2 is hanged, not hung - the latter being the standard past tense in all other uses of the verb. See HANGING. hanged. drawn, and quartered. Rist. An ancient sentence for high treason, conSisting of the prisoner's being drawn on a hurdle to the place of execution, hanged by the neck (but not until dead), disembow­ eled, and beheaded, and the body then divided into four pieces for the king's disposal. • The sentence was abolished in England in 1870. See TREASON. hanging, n. The killing of someone by suspending the person above the ground by a rope around the person's

happy-slapping

neck. - Death is caused by asphyxiation (by being hoisted from the ground) or by a sudden breaking of the cervical vertebrae (by being dropped from a height). Hanging was a common form of capital punishment in the United States until the 19308. See HANG. hanging chad. See CHAD. hanging in chains. Hist. English law. As the punishment in an atrocious case, the suspending of an executed murderer's body by chains near where the crime was committed.• Hanging in chains was abolished in 1834. hanging judge. See JUDGE. hangman. Archaic. An executioner, esp. one who executes condemned criminals by hanging. Hansard (han-s;}rd). The official reports of debates in the British Parliament. • The name derives from Luke Hansard (1752-1828), printer of the Journal of the House of Commons from 1774 to 1828. The name has varied at different times. In 1892 it became the Authorised Edition; in 1909 the title was changed to the Official Report; and since 1943 the name Hansard has been added to Official Report. - Also termed Hansard Official Report; Hansard's Debates. hanse (hans), n. [German] (14c) Hist. 1. A merchant guild, esp. one engaging in trade abroad. 2. A fee for entrance to the guild; an impost levied on merchants not belonging to the guild. Hanseatic (han-see-at-ik), adj. (17c) Hist. 1. Ofor relating to the union ofthe Hanse Towns, usu. referred to as the Hanseatic League. 2. Of or relating to a hanse or com­ mercial alliance. Hanse Towns (hans). Hist. The collective name of certain German cities including Lubeck, Hamburg, and Bremen that allied in the 12th century to protect and further their mutual commercial interests .• This alliance was usu. called the Hanseatic League. The League framed and promulgated a code of maritime law known as the Laws ofthe Hanse Towns, or Jus Han­ seaticum Maritimum. The League's power peaked in the 14th century, then gradually declined until 1669, when the last general assembly was held. Hanse Towns, laws of the. Rist. A uniform maritime code drawn from the laws of the Hanse towns, esp. that of Lubeck, published in German at Lubeck in 1597 and revised and enlarged in 1614. happiness, right to pursue. (1829) The constitutional right to pursue any lawful business or activity - in any manner not inconsistent with the equal rights of others - that might yield the highest enjoyment, increase one's prosperity, or allow the development of one's faculties .• This is a penumbral rather than explicit right under the U.S. Constitution. See the Dec­ laration ofIndependence ~ 2 (1776). [Cases: Constitu­ tional Law C:::> 1107.] happy-slapping. Slang. An assault on a randomly chosen victim by a person or group while another person films the assault with the intention oflater broadcasting or

784

harassment

selling copies ofthe recording.• Happy-slapping began in the early 20005 as a fad in London, in which a teenage victim was merely slapped or struck with an object such as a rolled-up newspaper while the assault was recorded on a cellphone camera. As the fad spread across England and into Europe, the perpetrators attacked victims of all ages, and the assaults escalated from mere slaps to serious bodily injury, rape, and murder. harassment (ha-ras-mant or har-as-mant). (I8c) Words, conduct, or action (usu. repeated or persistent) that, being directed at a specific person, annoys, alarms, or causes substantial emotional distress in that person and serves no legitimate purpose.• Harassment is actionable in some circumstances, as when a creditor uses threatening or abusive tactics to collect a debt. [Cases: Civil Rights (> 1036, 1143.] - harass (ha-ras or har-as), vb. same-sex harassment. See same-sex sexual harassment under SEXUAL HARASSMENT. sexual harassment. See SEXUAL HARASSMENT. harbinger (hahr-bin-jar), n. (14c) 1. Hist. In England, a royal officer who went ahead and was responsible for securing lodging for troops or for a traveling royal entourage. 2. A person or thing that predicts what is to come . harbor, safe. See SAFE HARBOR. harboring, n. (14c) The act of affording lodging, shelter, or refuge to a person, esp. a criminal or illegal alien. [Cases: Aliens, Immigration, and Citizenship (>778; Compounding Offenses C:--:;3.5.] harboring an illegal alien. The act ofproviding conceal­ ment from detection bv law-enforcement authorities or shelter, employment, ~r transportation to help a non­ citizen remain in the United States unlawfully, while knowing about or recklessly disregarding the nonciti­ zen's illegal immigration status .• The crime ofharbor­ ing an illegal alien does not require that the offender be involved in the smuggling of illegal aliens into the country. 8 USCA § 1324. [Cases: Aliens, Immigration, and Citizenship C=:)778.] harbor line. A line marking the boundary of a certain part of public water that is reserved for a harbor; esp., the line beyond which wharves and other structures may not extend. [Cases: Navigable Waters (> 14(1).] hard asset. See real asset under ASSET. hard case. (1836) A lawsuit involving equities that tempt a judge to stretch or even disregard a principle oflaw at issue.• Hence the expression, "Hard cases make bad law." hard currency. See CURRENCY. hard dollars. 1. Cash proceeds given to a seller. 2. The part of an equity investment that is not deductible in the first year. Cf. SOFT DOLLARS. hard goods. See durable goods under GOODS. hard labor. (18c) Work imposed on prisoners as addi­ tional punishment, usu. for misconduct while in prison.

• Several states (such as Louisiana, Maine, and New Jersey) impose hard labor as a sentence for a variety of crimes. Hard labor is also imposed in military sen­ tencing. See PENAL SERVITUDE. [Cases: Sentencing and Punishment c8==' 1067, 1134, 1526.] hard-look doctrine. (1979) Administrative law. The prin­ ciple that a court should carefully review an adminis­ trative-agency decision to ensure that the decision did not result from expediency, pressure, or whim. [Cases: Administrative Law and Procedure C:) 74 1.] hard money. See MONEY. hard sell. A sales practice characterized by slogans, aggressiveness, intimidation, and urgent decision­ making. Cf. SOFT SELL. hardship. (l3c) l. Privation; suffering or adverSity. 2. The asperity with which a proposed construction oflaw would bear on a particular case, sometimes forming a basis (also known as an argument ab inconvenienti) against the construction. See AB INCONVENIENT!; HARD CASE. [Cases: Statutes 181(2).] 3. family law. A condition that makes it onerous or impossible for a child-support obligor to make the required child-sup­ port payment. [Cases: Child Support (>254, 458.J 4. Zoning. A ground for a variance under some zoning statutes if the zoning ordinance as applied to a particu­ lar property is unduly oppressive, arbitrary, or confisca­ tory; esp., a ground for granting a variance, based on the impossibility or prohibitive expense ofconforming the property or its use to the zoning regulation. - Also termed unnecessary hardship. See VARIANCE (2). [Cases: Zoning and Planning (>492.] Hare-Ware voting. See instant-runoff voting under

:::

VOTING.

harm, n. (bef. 12c) Injury, loss, damage; material or tangible detriment. accidental harm. 1. Harm not caused by a purposeful act. 2. Harm not caused by a tortious act. bodily harm. (16c) Physical pain, illness, or impair­ ment of the body. grievous bodily harm. See serious bodily injury under INJURY.

physical harm. (18c) Any physical injury or impair­ ment ofland, chattels, or the human body. serious bodily harm. See serious bodily injury under INJURY.

social harm. (1933) An adverse effect on any social interest that is protected by the criminal law. "If the phrase 'social harm' is used to include every invasion of any social interest which has been placed under the pro· tection of a criminal sanction (whether by common law or by statute), every crime may be said to involve, in addition to other requirements, (1) the happening of social harm and (2) the fact that the act of some person was the cause ofthis harm." Rollin M. Perkins & Ronald N. Boyce, Criminal Law 830 (3d ed. 1982).

harmful behavior. Conduct that could injure another person, esp. a child. [Cases: Infants C'":::: 156.]

cumulatively harmful behavior. Family law. Seriously harmful parental (or caregiver) behavior that, ifcon­ tinued for a significant period, will over time cause serious harm to a child. immediately harmful behavior. Family law. Seriously harmful parental (or caregiver) behavior that could have caused serious injury to a child but that, because of the intervention of an outside force or a fortuitous event, did not result in any injury. seriously harmful behavior. Family law. Parental (or caregiver) behavior that could cause serious injury to a child in the person's care .• Some examples of seriously harmful behavior are physical battering, physical neglect, sexual abuse, and abandonment. harmful child labor. See oppressive child labor under CHILD LABOR.

harmful error. See reversible error under ERROR (2). harmless error. See ERROR (2). harmony. (14c) Agreement or accord; conformity . - harmonize, vb. harrow (har-oh or hJ-roh), n. [fr. Old French haro] (14c) Hist. In Norman and early English law, an outcry (or hue and cry) after felons and malefactors. - Also spelled haro. See HUE AND CRY. Cf. CLAMEUR DE HARO. Harter Act. Maritime law. An 1893 federal statute reg­ ulating a carrier's liability for the loss or damage of ocean cargo shipped under bills of lading. 46 USCA app. §§ 190-96.• The Act was the primary model for the Carriage of Goods by Sea Act, which has largely superseded it in practice. See CARRIAGE OF GOODS BY SEA ACT. [Cases: Shipping ~ 103.] "[T1he Harter Act [was] the world's first legislative attempt to allocate the risk of loss in ocean transportation between carrier and cargo interests." Michael F. Sturley, Changing Liability Rules and Marine Insurance, 24 j. Mar. L. & Com. 119, 119 (1993).

Hart-Scott-Rodino Antitrust Improvement Act. A federal statute, enacted in 1976, that generally strength­ ens the Justice Department's antitrust enforcement powers, esp. by requiring firms to give notice to the Federal Trade Commission and the Justice Department of an intent to merge if one of the firms has annual revenues or assets exceeding $100 million, and the acquisition price or value of the acquired firm exceeds $50 million. 15 USCA § 18(a). - Often shortened to Hart-Scott-Rodino Act (abbr. HSR Act). hash, vb. To run (a document) through an encryption algorithm, usu. to secure the contents or to derive a number unique to the document.• The product of hashing is either run through the encryption algorithm in reverse to verify that the transmitted message has not been altered or combined with the sender's private­ encryption key to produce a digital signature for the document. hash number. A unique numerical code generated by encryption software for use in creating a digital sig­

nature.

Also termed hashed number. See

DIGITAL

SIGNATURE; HASH; KEY ENCRYPTION.

haspa (has-p"), n. [Law Latin] Hist. The hasp of a door. • Livery of seisin was often made in the doorway of a structure located on the property being transferred. hasta (has-t. 3. HEREINAFTER . here and there. See VALUE DATE. herebannum (her-d-ban-dm), n. [Law Latin fr. Old English here "army" + bann "proclamation"] Hist. 1. A proclamation summoning the army into the field. 2. A mulct or fine for not joining that army when summoned. 3. A tax or tribute for the support of that army. herebote (her-d-boht), n. [fro Old English here "army" + bod "command"] Hist. In England, a royal edict sum­ moning the people to the battlefield; an edict com­ manding subjects into battle. Also spelled herebode; hebote. hereby, adv. (l3c) By this document; by these very words . heredad (e-re-dahd), n. Spanish law. 1. An inheritance or heirship. 2. A piece ofland under cultivation; a cul­ tivated farm. heredad yacente (e-re-dad yah-sen-te). An inheritance not yet accepted. See hereditas jacens under HEREDI­ TAS.

heredero (e-re-der-oh), n. Spanish law. I. An heir or legatee. 2. An owner of a cultivated farm. heredes. See HERES. heredes a/ioqui successuri (hd-ree-deez ay-lee-oh-kwI sdk-ses-J-rr). [Latin] Hist. Heirs entitled otherwise to succeed. - Also termed heredes alioquin success uri. heredes nati et facti (hd-ree-deez nay-ti et fak-u). [Latin] Hist. Heirs born and made. heredes proximi (hJ-ree-deez prok-SJ-mI), n. [Latin] Nearest or next heirs. heredes proximi et remotiores (hd-ree-deez prok-sd-mi et ri-moh-shee-or-eez). [Latin] Hist. Heirs nearer and more remote. heredes remotiores (ha-ree-deez ri-moh-shee-or-eez), n. [Latin] Heirs more remote; relatives other than children or descendants. heredipeta (he-rd-dip-d-td), n. [Law Latin] Hist. A leg­ acy-hunter; the seeker of an inheritance.

794

heredis institutio (hd-ree-dis in-sti-t[y]oo-shee-oh). See INSTITUTIO HEREDIS.

hereditament (her-a-dit-;l-mdnt or hd-red-i-tJ-mJnt). (lSc) I. Any property that can be inherited; anything that passes by intestacy. [Cases: Descent and Distri­ bution ~8.] 2. Real property; land. [Cases: Property corporeal hereditament (kor-por-ee-dl). A tangible item ofproperty, such as land, a building, or a fixture. Property~4.J [Cases: Fixtures incorporeal hereditament (in-kor-por-ee-al). An intangible right in land, such as an easement. • 1he various types at common law were advowsons, annui­ ties, commons, dignities, franchises, offices, pensions, rents, tithes, and ways. "There are two quite distinct classes of incorporeal her· editaments: 1. Those which may ripen into corporeal her­ editaments. Thus a grant to A for life with remainder to B in fee simple gave B an incorporeal hereditament which becomes corporeal after A's death. 2. Those which can never become corporeal hereditaments but are merely rights over the land of another, e.g., rentcharges." Robert E. Megarry & M. P. Thompson, A Manual of the Law of Real Property 361 (6th ed. 1993).

hereditary, adj. (15c) Of or relating to inheritance; that descends from an ancestor to an heir. hereditary succession. See intestate succession under SUCCESSION (2).

hereditas (ha-red-i-tas), n. [Latin] 1. Roman law. An inheritance by universal succession to a decedent. • This succession applied whether the decedent died testate or intestate, and whether in trust (ex fideicom­ missa) for another or not. The comparable right under Praetorian law was bonorum possessio, possession of an inheritance that could be the basis of a right to succeed. 2. Hist. An estate transmissible by descent; an inheri­ tance. Also spelled haereditas. hereditas damnosa (hd-red~i-tas dam-noh-sd). A bur­ densome inheritance; an inheritance whose debts exceed its assets. hereditas jacens (hd-red-i-tas jay-senz). [Latin iaceo "to lie"] 1. Property belonging to an estate before an heir accepts it. • This term had a similar meaning at common law. See ABEYANCE (2). "Hereditas jacens is the term applied to an inheritance which has not yet vested, an inheritance, that is to say, which has been 'delata' to a heres extraneus (i.e. vol un­ tarius), but has not yet been acquired by him." Rudolph Sohm, The Institutes: A Textbook of the History and System of Roman Private Law 512 Uames Crawford Ledlie trans., 3d ed. 1907).

2. Hist. A decedent's estate that has no heir or legatee to take it; an escheated estate. - Also termed caduca. See ESCHEAT. 3. Hist. An inheritance without legal owner and thus open to the first occupant. hereditas legitima (hd-red-i-tas ld-jit-i-md). A suc­ cession or inheritance devolving by operation oflaw rather than by wilL See INTESTACY. hereditas luctuosa (ha-red-i-tas ldk-choo-oh-sa). A sad or mournful inheritance; one that disturbs the

795

heretofore

natural order of mortality (turbato ordine mortali­ heres factus (fak-t 110.] hidage (hId-ij), n. Hist. A tax, payable to the Crown, based on every hide of land. - Also spelled hydage. See HIDE. "Of the same nature with scutages upon knights'-fees were the assessments of hydage upon all other lands, and of talliage upon cities and burghs. But they all gradually fell into disuse, upon the introduction of subsidies, about the time of king Richard II and king Henry IV." 1 William Black­ stone, Commentaries on the Laws of England 300 (1765).

hidalgo (hi-dal-goh or ee-dahl-goh), n. [fro Spanish hijo "son" + algo "property"] In Spain, a man belonging to the lower nobility; a gentleman of property. hidalguia (ee-dahl-gee-ya), n. [Spanish] In Spain, nobility by descent or lineage.

797

high-probability rule

HIDC. abbr. HOLDER IN DUE COURSE. hidden asset. See ASSET. hidden defect. See DEFECT. hidden fraud. See fraudulent concealment under

High Court of Chivalry. Hist. A court of honor having jurisdiction over matters relating to deeds of arms and war, armorial insignia, and precedence. Also termed Court of Chivalry; Court ofEarl Marshal. See COURT CON~

CEALMENT.

hidden tax. See TAX. hide, n. Hist. (bef. 12c) 1. In England, a measure of land consisting in as much as could be worked with one plow, variously estimated as from 30 to 120 acres but probably determined by local usage .• A hide was anciently employed as a unit of taxation. Cf. CARUCATE. 2. As much land as would support one family or the dwellers in a mansion~house. - Also termed (in senses 1 & 2) hide land. 3. A house; a dweIling~house. hidegild (hId-gild), n. [Old English] Hist. A sum ofmoney paid by a villein or servant to avoid a whipping. - Also spelled hidgild; hydegeld; hudegeld. bidel (hId~;}1 or hid-all, n. [Old English] Hist. A hidingplace; a place of protection or sanctuary. hide land. 1. See HIDE (1). 2. See HIDE (2). high bailiff. See BAILIFF. High Commission Court. See COURT OF HIGH COMMIS­ SION.

High Court. L See HIGH COURT OF JUSTICE. 2. See HIGH COURT OF JUSTICIARY.

High Court of Admiralty. In England, a court exercis­ ing jurisdiction in matters relating to shipping, colli~ sian, and salvage cases .• The court dates from the 14th century, and much of its early history concerns prize and piracy cases. Its jurisdiction varied through the centuries, sometimes extending into criminal matters and other areas oflaw not related directly to maritime issues. The Judicature Acts of 1873-1875 merged the Court into the High Court as part of the Probate, Divorce, and Admiraltv Division. The Administra­ tion ofJustice Act of 1970 established a new Admi­ ralty Court as part of the Queen's Bench Division ofthe High Court. It is regulated by the Supreme Court Act of 1981. Also termed Court of the Lord High Admiral; Court ofAdmiralty. Cf. ADMIRALTY (1). "To the office of the Lord High Admiral (originally a naval official concerned with the command of the fleet and the suppression of piracy and wrecking) there was annexed a court which acquired a jurisdiction over civil cases of a maritime nature. Just how and when this happened is too cloudy and controversial for simple or even accurate summary, but by the time of Richard II (1377~ 1400) the admiral and vice~admiral were transacting enough judicial business to move Parliament to limit their jurisdiction by statute to 'a thing done upon the sea,' and in Tudor times the court was well established as a court of record, doing a large civil business. It slowly but surely took away most of their business from the local maritime courts in the port towns, and attracted the easily aroused jealousy of the common law courts, as well as the dislike of those who feared it as a prerogative court .... These factors resulted in the rather anticlimactic eclipse of the court for almost two centuries." Grant Gilmore & Charles L. Black Jr., The Law of Admiralty § 1~4, at 9~ 10 (2d ed. 1975).

OF HONOR.

"This Curia Marescalli, or High Court of Chivalry, was revived by James I as a court of honour, which not only tried the right to distinctions of honour and coat armour but also redressed affronts to honour such as slander. The slander jurisdiction was later denied, leaving it with ajurisdiction probably confined to disputes over armorial bearings, which are determined according to the law of arms. The court, which has only sat once since 1737, is the last English court to use the procedure of the civil law:' J.H. Baker. An Introduction to English Legal History 142 (3d ed. 1990).

High Court of Delegates. See COURT OF DELEGATES. High Court of Errors and Appeals. See COURT OF ERRORS AND APPEALS.

High Court ofJustice. The superior dvil court ofEngland and Wales. - Often shortened to High Court. High Court of Justiciary (j;}-stish-ee-er~ee). Scots law. The superior criminal court of Scotland, acting both as a trial court and as a court of final criminal appeaL - Its judges are Lords Commissioners ofJusticiary. - Often shortened to High Court. high crime. See CRIME. high degree of care. See great care under CARE. high diligence. See great diligence under DILIGENCE. higher court. See court above under COURT. higher scale. See SCALE (4). highest and best use. See USE (1). highest court. See COURT. highest degree of care. See CARE. highest proved value. See VALUE (2). high flier. Slang. A security that has strongly attracted public interest so that investors pay an unusually high price. highgrade, vb. 1. To steal rich ore, as from a mine by a miner. 2. To mine only esp. valuable ore (such as gold). high-grade security. See SECURITY. high justice. See rUSTICE (3). high-low agreement. (1980) A settlement in which a defendant agrees to pay the plaintiff a minimum recovery in return for the plaintiffs agreement to accept a maximum amount regardless of the outcome of the trial. Also termed hilo settlement. [Cases: Compro­ mise and Settlement c-' 104.] highly prudent person. See REASONABLE PERSON. high-managerial agent. See AGENT (2). high misdemeanor. See MISDEMEANOR. high-probability rule. Marine insurance. The princi~ pIe that an insured may abandon a vessel if it appears extremely likely that a total loss is imminent. [Cases: Insurance C::>2237.]

798

high seas

high seas. See SEA. high sheriff. See SHERIFF (1). high-test marriage. See covenant marriage under MARRIAGE

(1).

high treason. See TREASO:-.l. high-water line. See high-water mark under

WATER­

MARK.

high-water mark. See WATER MARK. highway. (bef. 12c) 1. Broadly, any main route on land, on water, or in the air. 2. A free and public roadway or street that every person may use. [Cases: Highways "Every thoroughfare which is used by the public, and is, in the language of the English books, 'common to all the king's subjects,' is a highway, whether it be a carriage· way, a horse-way, a foot-way, or a navigable river. It is, says Lord Holt, the genus of all public ways." 3 James Kent, Commentaries on American Law *432 (George Comstock ed., 11th ed. 1866).

3. The main public road connecting towns or cities. 4. The entire width between boundaries of every publicly maintained way when part is open to public use for purposes of vehicular traffic. common highway. A highway for use by the public for any purpose of transit or traffic. public highway. A highway controlled and maintained by governmental authorities for general use. [Cases: Highways (;:;0 18.] highway act. (usu. pl.) One of a body of statutes gov­ erning the laying out, construction, repair, and use of highways. Also termed highway law. [Cases: Highways C::>21.] highwayman. (17c) A highway robber; a person who robs on a public road. highway rate. Hist. In England, a tax for the mainte­ nance and repair of highways. highway robbery. See ROBBERY. highway tax. See TAX.

high-yield bond. See BOND (3).

high-yield debt obligation. See high-yield bond under

BOND

(3).

higuela (ee-gay-Iah), n. Spanish law. A receipt given by a decedent's heir, setting forth what property the heir has received from the estate, and kept as a record. hijack, vb. (1923) 1. To commandeer (a vehicle or airplane), esp. at gunpoint. See CARJACK; SKYJACK. 2. To steal or rob from (a vehicle or airplane in transit). [Cases: Aviation C::;; 16; Robbery C::;; 1.] 3. Hist. To rob by trickery or violence; esp., to rob (a smuggler or boot­ legger) and take illegal goods. Hilary Rules. (l9c) Hist. A collection of English pleading rules designed to ease the strict pleading require­ ments of the special-pleading system, esp. by limiting the scope of the general issue in the formed actions and by forCing the defendant to set up affirmatively all matters other than a denial of the breach of duty or

of the wrongful act. - Promulgated in England in the 1834 Hilary Term, these rules followed an 1828 initia­ tive to examine procedural laws and other subjects and to report to Parliament changes that might be enacted. The rules had the unintended effect of extending the reach of strict-pleading requirements into new areas of law. Widespread dissatisfaction with the Hilary Rules led to the liberalization of the pleading system under the 1873-1875 Judicature Acts. - Formerly also termed New Rules. "The failure of the Hilary Rules ... lay in their insistence on special pleading as it was understood late in the eighteenth century. That parties should plead precisely, and clarify as far as possible the issue between them, is one thing; that their endeavours to do so should be judged by the extremely artificial standards of the old system, was quite another." Theodore F.T. Plucknett, A Concise Hlstorv of the Common Law416 (5th ed. 1956).

Hilary sittings. In England, a term of court beginning on January 11 of each year and ending on the Wednes­ day before Easter. _ The Hilary sittings were known as Hilary term until 1875. Cf. EASTER SITTINGS; MICHAEL­ MAS SITTINGS; TRINITY SITTINGS.

hilo settlement. See HIGH-LOW AGREEMENT. Hilton doctrine. Civil procedure. The rule that in a dispute between parties to an oil-and-gas lease, royalty owners who would lose their rights if the defendant's lease were terminated are regarded as indispensable parties to a proceeding challenging the lease. Hilton v. Atlantic Refining Co., 327 F.2d 217 (5th Cir. 1964). [Cases: Mines and Minerals C=>78.7(2).] Himalaya clause. Maritime law. A provision in a bill of lading extending the carrier's defenses and limitations under the Carriage of Goods by Sea Act to third parties, typically employees, agents, and independent contrac­ tors. - The Supreme Court has held that this type of clause must be strictly construed. Robert C. Herd & Co. v. Krawilllviachinery Corp., 359 U.S. 297, 79 S.Ct. 766 (1959). See CARRIAGE OF GOODS BY SEA ACT. [Cases: Shipping C::;;, 140(1).] "The plaintiff was injured while a passenger on the cruise ship The Himalaya. She sued the master and the boatswain for their negligence because the carrier was contractually exempt from all liability. Because the contract did not have a 'Himalaya clause,' she succeeded. The carrier, having indemnified its employees, ultimately paid the damages. It thus lost its contractual exemption indirectly." Michael J. Sturley, International Uniform Law in National Courts, 27 Va.j. Int'l L. 729, 740 n.lOl (1987).

hinc inde (hink in-dee). [Law Latin] Scots law. On either side. _ The phrase usu. refers to the respective claims of parties to a lawsuit. hine (hIn), 11. Hist. In England, a husbandry servant. Also spelled hind. hinefare (hIll-fair), n. Hist. In England, the loss or depar­ ture of a servant from the master. hinegeld (hIn-geld), n. Hist. A ransom for an offense committed by a servant. HIPAA (hip-;.}), abbr. HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT.

hodgepodge act

799

hipoteca (ee-poh-tek-ah), n. Spanish law. A mortgage of real property. See HYPOTHECATION. hire, vb. (bef. 12c) 1. To engage the labor or services of another for wages or other payment. 2. To procure the temporary use of property, usu. at a set price. 3. To grant the temporary use of services . hired gun. (1971) Slang. 1. An expert witness who testi­ fies favorably for the party paying his or her often because of that financial relationship rather than because of the facts. 2. A lawyer who stops at nothing to accomplish the client's goals, regardless of moral consequences. hireling, n. A person who is hired or serves for wages, esp. one who works only for the sake of payments. [Cases: Labor and Employment ~23.] hire-purchase agreement. See LEASE-PURCHASE AGREE­ MENT.

hiring. See LOCATIO. hiring at wilL See employment at will under

EMPLOY­

MENT.

his. (bef. 12c) A possessive pronoun of the masculine gender but traditionally used and construed to include both sexes.• Because of the trend toward nonsexist language, careful drafters now tend to avoid the generic use of his (and the personal pronouns he and him) unless the reference is only to a male person. His Honor; Her Honor. (1827) L A third-person title customarily given to a judge. 2. A third-person title customarily given to the mayor of a city. 3. A third­ person title given by the Massachusetts Constitution to the lieutenant governor of the commonwealth. Cf. YOUR HONOR.

his testibus (his tes-td-bds). [Law LatinI Hist. These being witnesses .• The concluding clause of deeds and charters typically opened with these words, which stated the names of the witnesses to the instrument. This clause appeared in deeds and charters until the 16th century. - Also spelled hijs testibus; hiis testibus. historian. Parliamentary law. An officer charged with compiling or contributing to an organization's official history. historical cost. See acquisition cost (1) under COST (1). historical jurisprudence. See JURISPRUDENCE. historic bay. See BAY. historic-preservation law. An ordinance prohibiting the demolition or exterior alteration ofcertain historic buildings or of all buildings in a historic district. [Cases: Environmental Law C=.::>61-103.] historic site. A building, structure, area, or property that is Significant in the history, architecture, archaeology, or culture of a country, state, or city, and has been so deSignated by statute. _ A historic site usu. cannot be altered without the permission of the appropriate authorities. [Cases: Environmental Law (;-=>78.]

hit, n. (bef. 12c) 1. A physical strike. 2. Criminal law. A murder committed for money or on orders from a gang leader. 3. Criminal law. An instance ofthe taking of a drug. 3. Intellectual property. A Single instance of a computer's connection to a Web page .• Counters keep track of how many visitors a Web page attracts, and a large number of hits is a major selling point for advertising. 4. Intellectual property. A Web page identi­ fied by an Internet search engine as containing words matching a user's query. 5. A creative work that is a popular or a commercial Sllccess. hit-and-run statute. A law requiring a motorist involved in an accident to remain at the scene and to give certain information to the police and others involved. [Cases: Automobiles ~ 336.] hitherto, adv. (l3c) Until now; heretofore. H.L. abbr. HOUSE OF LORDS. HLA test. See HUMAN-LEUKOCYTE ANTIGEK TEST. HMO. abbr. HEALTH-MAINTENANCE ORGANIZATION. hoard, vb. (bef. 12c) To acquire and hold (goods) beyond one's reasonable needs, usu. because of an actual or anticipated shortage or price increase . hohbler. Hist. In England, a light horseman or bowman; a tenant bound by his tenure to maintain a small light horse for military service. Hobbs Act. A federal anti-racketeering act making it a crime to interfere with interstate commerce by extor­ tion, robbery, or phYSical violence. 18 USCA § 1951. See RACKETEER INFLUENCED AND CORRUPT ORGANI­ ZATIONS ACT. [Cases: Extortion and Threats Robbery ~ 1.] hobby loss. See LOSS. hoc. [Latin] This; with; by; in. hoc intuitu (hok in-t[y]oO-;}-t[y]oo). [Law Latin] Scots law. In this prospect. - The phrase appeared in refer­ ence to deeds executed in expectation ofan event, such as a marriage. hoc loco (hok loh-koh). [Law Latin] Hist. In this place. hoc nomine (hok nahm-. 4. To keep in custody or under an obligation . 5. To take or have an estate from another; to have an estate on condition of paying rent or per­ forming service <James holds Hungerstream Manor under lease>. 6. To conduct or preside at; to convoke, open, and direct the operations of <Judge Brown holds court four days a week>. 7. To possess or occupy; to be in possession and administration of <Jones holds the office of treasurer>. holdback, n. An amount withheld from the full payment of a contract pending the other party's completion of some obligation, esp. to ensure that a contractor finishes the work agreed on beforehand.• The terms of a holdback are typically expressed in the contract. The device gives the contractor an incentive to finish the work, and the other party security that the work will be finished. hold back, vb. holder. (14c) 1. A person who has legal possession of a negotiable instrument and is entitled to receive payment on it. [Cases: Bills and Notes G-~427(1).] 2. A person with legal possession of a document of title or an investment security. 3. A person who possesses or uses property. holder for value. (I8c) A person who has given value in exchange for a negotiable instrument. • Under the UCC, examples of "giving value" include acquiring a security interest in the instrument and accepting the instrument in payment of an antecedent claim. UCC § 3-303(a). - Also termed bona fide holder for value. [Cases: Bills and Notes G-~352.1 holder in due course. (1882) A person who in good faith has given value for a negotiable instrument that is complete and regular on its face, is not overdue, and, to the possessor's knowledge, has not been dishonored. • Under UCC § 3-305, a holder in due course takes the instrument free of all claims and personal defenses, but subject to real defenses. - Abbr. HDC; HIDe. ­ Also termed due-course holder. [Cases: Bills and Notes P327-384.]

800

holder in good faith. (18c) One who takes property or an instrument without knowledge of any defect in its title. holder of record. See STOCKHOLDER OF RECORD. hold harmless, vb. (18c) To absolve (another party) from any responsibility for damage or other liability arising from the transaction; INDEMNIFY. - Also termed save harmless. [Cases: IndemnityP25, 31(4).] hold-harmless agreement. (1939) A contract in which one party agrees to indemnify the other. Also termed save-harmless agreement. See INDEMNITY. [Cases: Indemnity (>~)25-33.1 hold-harmless clause. See INDEMNITY CLAUSE. holding, n. (15c) 1. A court's determination of a matter of law pivotal to its decision; a principle drawn from such a decision. Cf. OBITER DICTUM. [Cases: Courts (;=:>88.] 2. A ruling on evidence or other questions presented at trial. 3. (usu. pl.) Legally owned property, esp. land or securities. 4. Hist. In feudal law, tenure. holding cell. See JAIL. holding charge. (1949) A criminal charge of some minor offense filed to keep the accused in custody while pros­ ecutors take time to build a bigger case and prepare more serious charges. holding company. See COMPA~Y. holding-company tax. See TAX. holding over. 1. A tenant's action in continuing to occupy the leased premises after the lease term has expired. • Holding over creates a tenancy at sufferance, with the tenant being referred to as a holdover. See tenancy at sufferance under TENANCY. [Cases: Landlord and Tenant (>:;;:090, 119(2).] 2. Parliamentary law. An offi­ cer's continued tenure beyond the term for which he or she was elected, usu. because a successor has not been elected or cannot yet assume the office. holding period. (1935) Tax. The time during which a capital asset must be held to determine whether gain or loss from its sale or exchange is long-term or short· term. [Cases: Internal Revenue 0.:::> 3260; Taxation 3465-3469.] holding zone. See ZONE. hold order. (1945) A notation in a prisoner's file stating that another jurisdiction has charges pending against the prisoner and instructing prison officials to alert authorities in that other jurisdiction instead of releas­ ing the prisoner. hold out, vb. (16c) I. To represent (oneself or another) as having a certain legal status, as by claiming to be an agent or partner with authority to enter into transac­ tions <even though he was only a promoter, Schwartz held himself out as the principal>. [Cases: Principal and Agent P99.] 2. To refuse to yield or submit; to stand firm <Womack held out for a higher salary and better benefits>. holdover clause. See TRAILER CLAUSE.

holdover tenancy. See tenancy at sufferance under TENA:-.1CY.

holdover tenant. See TENANT. hold pleas. Archaic. To hear or try cases. holdup. See STICKUP. holiday. See LEGAL HOLIDAY. holograph (hol-533.]

negligent homicide. (1859) Homicide resulting from the careless performance of a legal or illegal act in which the danger of death is apparent; the killing ofa human being by criminal negligence. Also termed criminally negligent homicide. See criminal negligence under NEGLIGENCE. [Cases: Homicide C:~)708.1

homicide by misadventure. See ACCIDENTAL KILLING. homicideper infortunium (par in-for-t[y]oo-nee-am). [Latin "homicide by misfortune"] (1856) The uninten­ tional killing ofanother while engaged in a lawful act; ACCIDENTAL KILLING. See PER INFORTUNIUM. [Cases: Homicide C=>762.] innocent homicide. (1884) Homicide that does not involve criminal guilt. justifiable homicide. (18c) 1. The killing of another in self-defense when faced with the danger of death or serious bodily injury. - Also termed excusable homicide. See SELF-DEFENSE (1). 2. A killing mandated or permitted by the law, such as execution for a capital crime or killing to prevent a crime or a criminal's escape. [Cases: Homicide C=>752-756.] "It should be noted that a justifiable homicide is not criminal, since it is a killing which the law has either com­ manded or permitted: the actus in such a case is not legally punishable, and therefore we may perhaps say that it is an actus of killing which is not reus. As we shall see in most

"There is no common-law offense known as 'negligent homicide.' As a matter of the common law of crimes any killing below the grade of manslaughter is innocent homicide. Some of the new penal codes have a classifica­ tion scheme which (omitting degrees or other variations) divides criminal homicide into murder, manslaughter and criminally negligent homicide - or simply negligent homicide. For the most part, however, this has been achieved by removing from manslaughter the offense of homicide by criminal negligence and using this to consti­ tute the newly named offense. Thus, though there are a few exceptions, most states will have no homicide offense which would be below common-law manslaughter." Rollin M. Perkins & Ronald N. Boyce, Criminal Law 116-17 (3d ed. 1982).

nonfelonious homicide. A killing that is legally either excusable or justifiable. See excusable homicide; jus­ tifiable homicide. reckless homicide. (1866) The unlawful killing of another person with conscious indifference toward that person's life. Cf. MANSLAUGHTER. [Cases: Homicide C=>709.] vehicular homicide. (1952) The killing of a person as a result of the unlawful or negligent operation of a motor vehicle. Also termed automobile homicide. [Cases: Automobiles C=>342.1.] victim-precipitated homicide. 1. See suicide-by-cop under SUICIDE. 2. A killing provoked by the victim who conSciously intended to die at the hands of another person. _ This term applies loosely to any assisted suicide. Unlike most types of homicide, the victim bears some of the responsibility for causing his or her own death. willful homicide. (1860) The act ofintentionally causing a person's death, with or without legal justification.

homicidium (hom+sI-dee-"m), n. [Latin "felling of a person") Homicide.

homicidium ex casu (eks kay-s[y)oo). Homicide by accident. See ACCIDENTAL KILLING.

homicidium ex justitia (eks j"s-tish-ee-,,). Homicide in the administration of justice, or in the carrying out of a legal sentence. See justifiable homicide (2) under HOMICIDE. homicidium ex necessitate (eks nd-ses-i-tay-tee). Homicide from inevitable necessity, such as protect­ ing one's person or property. See justifiable homicide (I) under HOMICIDE. homicidium ex voluntate (eks vol-dn-tay-tee). Volun­ tary or willful homicide. See criminal homicide under HOMICIDE. homicidium in rixa (hom-a-sI-dee-dm in rik-s 140(3); Bills and Notes ~24, 388,428.] 2. To recog­ nize, salute, or praise. Honorable. (I5c) A title of respect given to judges, members of the U.S. Congress, ambassadors, and the like . - Abbr. Hon. honorable discharge. See DISCHARGE (8). honorable-engagement clause. Reinsurance. An arbi­ tration provision in a reinsurance contract allowing the arbitrators to view the reinsurance arrangement reasonably - in line with the agreement's general purposes rather than strictly according to the rules oflaw or an unduly technical interpretation of contrac­ tuallanguage. [Cases: Insurance (;:::;)3626.] honorarium (on-J-rair-ee-Jm), n. (17c) 1. A payment of money or anything else of value made to a person for services rendered for which fees cannot legally be or are not traditionally paid. 2. A voluntary reward for that for which no remuneration could be collected by law; a voluntary donation in consideration of services that admit of no compensation in money. 3. Roman law. A gratuitous payment, esp. for professional services, as distinguished from compensation for physical labor. PI. honoraria; honorariums. Cf. MERCES. honorary, adj. (I6c) (Of a title or status) conferred in rec­ ognition of merit or service, but without the attendant rights, powers, or dutiesj nominal . - An honorary title or status may be granted without regard to whether the honoree ever held the title or status in fact. The honorarv title conferred on a former officer who has honorably retired from office is often "emeritus" or "emerita." See EMERITUS. honorary canon. See CANON (5).

honorary feud. Hist. In England, a title of nobility descending to the eldest son only. See FEUD (1)-(3). honorary services. Hist. Special services rendered to the king by a person holding tenure of grand serjeanty. ­ The services usu. consisted of carrying the royal banner or sword, or serving at the king's coronation as a butler, as a champion, or in some other capacity. honorary trust. See TRUST. honor crime. See CRIME. honor killing. See honor crime under CRIME. hooligan. 1. An unruly or mischievous person who causes trouble; a street-gang member. - This term is often associated with boisterous fans of British sporting events. 2. See HOOLIGAN TOOL. hooligan tool. A steel bar used by police officers and fire­ fighters to break open doors or windows. - Sometimes shortened to hooligan. Also termed halligan tool. horae juridicae (hor-ee juu-rid-i-see), n. pI. [Latin] Hist. Juridical hours. - The time during which judges sat in court to attend to judicial business. Also termed horae judicii (hor-ee joo-dish-ee-ee). horea (or-kah), n. Spanish law. 1. A gallows. 2. A stick for administering corporal punishment. 3. A deSignated place for administering corporal punishment. hordera (hor-deer-::I), n. [Law Latin] Hist. In England, a treasurer. - Also termed hordarius (hor-dair-ee-Js). horderium (hor-deer-ee-::Im), n. [Law Latin] Hist. In England, a hoard, treasury, or repOSitory. horizontal agreement. See horizontal restraint under RESTRAINT OF TRADE. horizontal competition. See COMPETITION. horizontal equality. In per capita distribution of an estate, parity of distribution among members of the same generation. See PER CAPITA. Cf. VERTICAL EQUALITY. horizontal-gaze nystagmus test (nis-tag-mJs). (1985) Criminal law. A field-sobriety test for intoxication, in which the suspect is told to focus on an object (such as a pencil) and to track its movement, usu. from side to side, by moving only the eyes. - Intoxication is indicated if the eyes jerk or twitch while tracking the object. - Abbr. HGN test. [Cases: Automobiles ~

411.1 horizontal integration. See horizontal merger under MERGER. horizontal merger. See MERGER. horizontal nonprivity. See NONPRIVITY. horizontal price-fixing. See PRICE-FIXING. horizontal privity. See PRIVITY. horizontal-property act. A statute dealing with coop­ eratives and condominiums. horizontal restraint. See RESTRAINT OF TRADE. horizontal stare decisis. See STARE DECISIS. horizontal union. See craft union under UNION.

hornbook. (16c) 1. A book explaining the basics of a given subject. 2. A textbook containing the rudimen­ tary principles of an area oflaw. Cf. CASEBOOK. "Hornbook . .. The first book of children, covered with horn to keep it unsoiled." Samuel Johnson, A Dictionary of the English Language (1755).

hornbook law. See BLACKLETTER LAW. hornbook method. (1895) A method oflegal instruction characterized by a straightforward presentation oflegal doctrine, occasionally interspersed with questions .• The hornbook method predominates in civil-law coun­ tries, and in certain fields oflaw, such as procedure and evidence. - Also termed lecture method. Cf. CASEBOOK METHOD; SOCRATIC METHOD. horning, n. Hist. Scots law. 'Lhe denunciation of a person as an outlaw.• The term comes from the old ceremony of proclaiming a person outlawed in which the king's messenger gave three blasts on a horn. Also termed putting to the horn. horn tenure. 1. See CORNAGE (1).2. See CORNAGE (2). hors (or). [French]l. Out or out of. 2. Outside or outside of. hors de son fee (or d" son fee), n. [French "out of his fee"] Hist. A defensive plea in an action for rent or services by which the defendant alleged that the land in question was outside the plaintiff's fee. horse case. See WHITEHORSE CASE. horsehead. See PUMPING UNIT. horseshedding, n. (1931) The instructing of a witness favorable to one's case (esp. a client) about the proper method of responding to questions while giving testi­ mony. - Also termed woodshedding. Cf. SANDPAPER­ ING. horseshed, vb. hospitalaria. See HOSTILARIA. Hospitallers (hos-pi-t"l-arz). A military and religiOUS order founded in the 11th century and so called because it built a hospital at Jerusalem to care for pilgrims .• The Crown seized all its lands and goods in England under the Grantees of Reversions Act (1540). The Hos­ pitallers still functions in several countries as a human­ itarian society. hospital lien. See LIEN. hospitator (hos-p"-tay-t,,r), n. [Law Latin] A host or entertainer. hospitatorcommunis (b-myoo-nis). A common inn­ keeper. hospitator magnus (mag-nas). The marshal of a camp. hospitia (hah-spish-ee-a), n. [Latin] Inns. hospitia cancellariae (kan-sa-Iair-ee-I). Inns of chancery. hospitia communia (b-myoo-nee-a). Common inns. hospitia curiae (kyoor-ee-I). Inns of court. hospiticide (hah-spit-,,-sld), n. (l7e) 1. The murder of a host by a guest. 2. A host who murders a guest.

hospitium (hah-spish-ee-am), n. [Latin] An inn; a house­ hold. hostage. (l3c) 1. An innocent person held captive by another who threatens to kill or harm that person if one or more demands are not met. • Hostage-taking is a federal crime. 18 USCA § 1203. Cf. KIDNAPPING. 2. Int'llaw. A person who is given or taken into an enemy's custody, in time of war, with his or her freedom or life to stand as security for the performance of some agreement made to the enemy by the belligerent power giving the hostage. [Cases: War and National Emer­ gency C=> 11.] hostelagium (hos-ta-Iay-jee-"m), n. [Law Latin] Hist. A right to receive lodging and entertainment, anciently reserved by lords in their tenants' houses. hosteler (hos-ta-Iar). (14c) 1. A person who stays in a youth hostel. 2. A stableman. 3. Archaic. A person who receives and entertains guests, esp. at a monastery. 4. Archaic. An innkeeper. See HOSTLER. hostes (hos-teez), n. pl. [Latin] Enemies. Sing. hostis (hos-tis). hostes humani generis (hyoo-may-m jen-a-ris). Enemies of the human race; specif., pirates. hosticide (hos-t,,-SId), n. (1848) 1. The killing of an enemy. 2. A person who kills an enemy. hostilaria (hos-ta-Iair-ee-,,), n. [Latin] A place or room in a religiOUS house used to receive guests and strang­ ers. - Also termed hospitalaria (hos-p,,-t,,-ler-[ee-] a). hostile, adj. (16c) 1. ADVERSE. 2. Showing ill will or a desire to harm. 3. Antagonistic; unfriendly. hostile act. See ACT OF HOSTILITY. hostile amendment. See AMENDMENT (3). hostile bidder. See CORPORATE RAIDER. hostile embargo. See EMBARGO (1). hostile-environment sexual harassment. See SEXUAL HARASSMENT. hostile possession. See POSSESSION. hostile propaganda. See PROPAGANDA. hostile takeover. See TAKEOVER. hostile witness. See WITNESS. hostility. (lSc) 1. A state of enmity between individuals or nations. 2. An act or series ofacts displaying antago­ nism. 3. (usu. pl.) Acts of war. hostler ([h]os-lar). [fro hosteler] (l4c) Archaic. L A stable­ man; an ostler. 2. An innkeeper.• By the 16th century, this term had lost its "innkeeper" sense, and referred exclusively to a stableman. hot bench. See BENCH. hot blood. See HEAT OF PASSION. hot cargo. (1938) Labor law. Goods produced or handled by an employer with whom a union has a dispute. hot-cargo agreement. (1957) Labor law. A voluntary agreement between a union and a neutral employer by

807

house bill

which the latter agrees to exert pressure on another employer with whom the union has a dispute, as by ceasing or refraining from handling, using, selling, transporting, or otherwise dealing in any of the products of an employer that the union has labeled as unfair. - Most agreements of this type were prohibited by the Landrum-Griffin Act of 1959. See LANDRUM­ GRIFFIN ACT.

hot check. See bad check under CHECK. hotchpot (hoch-pot), n. (16c) 1. The blending ofitems of property to secure equality of division, esp. as practiced either in cases of divorce or in cases in which advance­ ments of an intestate's property must be made up to the estate by a contribution or by an accounting. Also termed hotchpotch; hotchpot rule. [Cases: Descent and Distribution ~ 108; Wills ~762.J "In some states ... a child who has received his advance· ment in real or personal estate, may elect to throw the amount of the advancement into the common stock, and take his share of the estate descended, or his distributive share of the personal estate, as the case may be: and this is said to be bringing the advancement into hotchpot, and it is a proceeding which resembles the collatio bonorum in the civil law." 4 James Kent, Commentaries on American Law"419 (George Comstock ed., 11th ed. 1866). "[TJhe distribution of the property among the children is subject to what is called the hotchpot rule, the purpose of which is to ensure that the shares of all the children shall be equal. The rule is that any money or property which the intestate has paid to, or settled on, or covenanted to settle on a child, either by way of advancement or in view of marriage, shall be brought into account and deducted from the share which is payable to that child under the intestacy." G.c. Cheshire, Modern Law of Real Property 783-84 (3d ed. 1933).

2. In a community-property state, the property that falls within the community estate. See COLLATIO BONORUM.

3. MAIN POT.

hot court. See CO'C'RT. hot document. See DOC'C'MENT. hotel divorce. See DIVORCE. hotelkeeper. See INNKEEPER. hotelkeeper's lien. See LIEN. hot issue. See ISSUE (2). hot news. Intellectual property. Extremely time-sensitive or transient information that is usu. reliable for very brief periods, such as stock quotations. hot-news test. Intellectual property. A judicial test for determining whether a misappropriation claim is pre­ empted by the Sears-Compeo doctrine, consisting in analyzing whether, in addition to the elements of copy­ right infringement, the claim also requires proof of (1) time-sensitive information collected at a cost to the plaintiff, (2) unfair use of that information by a directly competing defendant who has made no similar invest­ ment, and (3) a consequent threat to the plaintiff's com­ mercial existence. hot-potato rule. The principle that a lawyer may not unreasonably withdraw from representing a client. _ The term comes from the rule's classic formulation:

"a firm may not drop a client like a 'hot potato: espe­ cially if it is in order to keep happy a far more lucra­ tive client." Picker Int'l, Inc. v. Varian Assocs., Inc., 670 F. Supp. 1363, 1365 (N.D. Ohio 1987). An exception may be allowed for a conflict of interest arising from circumstances beyond the control of the lawyer or the law firm. See thrust-upon conflict under CONFLICT OF INTEREST. [Cases: Attorney and Client (::::>20.] hot pursuit. (ISc) 1. See FRESH PURSUIT. 2. Int'llaw. The legitimate chase of a foreign vessel on the high seas just after that vessel has violated the law of the pursuing country while within that country's jurisdiction. hot stock. See hot issue under ISSUE (2). hot-water ordeal. See ordeal by water (2) under ORDEAL. hour of cause. Scots law. The time at which a trial is to begin. housage (howz-ij). 1. A fee for storing goods. 2. The state of being housed or the action ofhousing. house. (bef. 12c) 1. A home, dwelling, or residence. ancient house. Hist. In England, a house that has stood long enough to acquire an easement of support against the adjoining land or building. bawdy house. See DISORDERLY HOUSE (2). disorderly house. See DISORDERLY HOUSE. dwelling-house. See DWELLING-HOUSE. house of correction. 1. A reformatory. 2. A place for the confinement of juvenile offenders or those who have committed crimes oflesser magnitude. Also termed house of refuge. [Cases: Infants ~271.1 house ofdetention. See JA I L. house ofillfame. 1. See BROTHEL. 2. See DISORDERLY HOUSE

(2).

house ofprostitution. See DISORDERLY HOUSE (2). house ofrefuge. See house ofcorrection. house ofworship. A building or place set apart for and devoted to the holding of religious services or exer­ cises or public worship; a church or chapel, or a place similarly used. [Cases: ReligiOUS Societies ~ 15.] public house. See PUBLIC HOUSE. 2. A branch of a legislature or a quorum of such a branch; esp., the lower chamber of a bicameral legis­ lature. 3. HOUSE OF REPRESENTATIVES. 4. HOUSE OF DELEGATES (1).

houseage (howz-ij). A fee paid for housing goods, as by a carrier or at a wharf. house arrest. (1936) The confinement of a person who has been accused or convicted of a crime to his or her home, usu. by attaching an electronically monitored bracelet to the person. _ Most house-arrest programs require the offender to work and permit leaVing the home only for reasons such as work, medical needs, or community-service obligations. [Cases: Sentencing and Punishment ~2047.1 house bill. See BILL (3).

808

housebote

housebote. See BOTE (1). housebreaking. (17c) The crime of breaking into a dwelling or other secured building, with the intent to commit a felony inside; BURGLARY. • Burglary is now used more frequently than housebreaking. In England, for example, housebreaking was replaced in 1968 with statutory burglary, though the term is still used in Scots law. In some jurisdictions, housebreaking includes "breaking out" of a house that was entered without a breaking. [Cases: Burglary 1.] - housebreaker, n.

house of delegates. (18c) 1. (often cap.) The convention of many learned or profeSSional associations, includ­ ing the American Bar Association . Often shortened to House. - Also termed house of representatives. See CONVENTION (4). [Cases: Attorney and Client ~31.12. (cap.) The lower chamber of the state legislature in Maryland, Virginia, and West Virginia. [Cases: States ~26.1 house of detention. See JAIL. house of ill fame. 1. See BROTHEL. 2. See DISORDERLY

"The oldest term for this purpose [i.e., of distinguishing between common-law burglary and its statutory enlarge· ments], still encountered at times, is 'housebreaking'; a more recent suggestion is 'breaking and entering,' and peace officers sometimes speak of a 'breakin,''' Rollin M. Perkins & Ronald N. Boyce, Criminal Law 270 (3d ed. 1982).

house of ill repute. See DISORDERLY HOUSE. House of Lords. (l7c) The upper chamber of the British Parliament, of which the ll-member judicial com­ mittee provides judges who serve as the final court of appeal in most civil cases .• In practice, the Lords sit as committees, usu. of five but occaSionally of seven. Two committees may sit Simultaneously. - Abbr. H.L. Also termed Lords.

HOUSE (2).

constructive housebreaking. A breaking made out by construction oflaw, as when a burglar gains entry by threat or fraud. - Also termed constructive breaking into a house. [Cases: Burglary houseburning. The common-law misdemeanor of inten­ tionally burning one's own house that is within city limits or that is close enough to other houses that they might be in danger of catching fire (even though no actual damage to them may result). - Also termed combustio domorum. Cf. ARSON. [Cases: Arson

"'House of Lords' is an ambiguous expression. It refers {ll to all the peers who choose to sit as the Upper House of the legislature (Parliament), and also (2) to a court consisting of the highest level of the judiciary." Glanville Williams, Learning the Law 8 (l1th ed. 1982).

2.]

house counsel. See in-house counsel under COUNSEL. house-duty. Hist. English law. A tax first imposed in 1851 on inhabited houses. 14 & 15 Viet., ch. 36 (repealed 1924).• This tax replaced the window tax, which levied a duty on houses with more than six windows. See window tax under TAX. household, adj. Belonging to the house and family; domestic. household, n. (14c) I. A family living together. 2. A group of people who dwell under the same roof. Cf. FAMILY. 3. The contents of a house. householder. (14c) 1. A person who keeps house with his or her family; the head or master of a family. 2. A person who has a household. 3. An occupier of a house. Cf. HEAD OF HOUSEHOLD. - householdership, n. household goods. See GOODS. house law. Hist. A regulatory code promulgated by the head of a royal or noble family, or of a prominent private family, governing intrafamily relationships and acts concerning events such as marriage, disposition of property, and inheritance.• Such a code had no legal authority but was enforced within the family by personal and economic sanctions. house mark. See house trademark under TRADEMARK. house of assignation. See DISORDERLY HOUSE (2). House of Commons. The lower chamber of the British and Canadian parliaments. - Abbr. H.C. house of correction. See HOUSE.

!

house of prostitution. See DISORDERLY HOUSE (2). house of refuge. See house ofcorrection under HOUSE. House of Representatives. (I8c) 1. The lower chamber of the U.S. Congress, composed of 435 members ­ apportioned among the states on the basis of popu­ lation who are eJected to two-year terms. [Cases: United States 2. The lower house ofa state leg­ islature. - Abbr. H.R.; (in senses 1 & 2) H. Often shortened to House. [Cases: States ~·26.] 3. HOUSE OF DELEGATES (1): - Often shortened (in all senses) to House. - Abbr. H.R. house ofworship. See HOUSE. house trademark. See TRADEMARK. housing code. See BUILDING CODE. housing court. See COURT. hovering act. Int'l law. A statute applying to a coastal country's criminal jurisdiction over ships, and persons aboard those ships, when the ships are outside the country's territory. 'The notion of hovering acts evolved long before that of a belt of uniform width in the form of territorial waters. Great Britain's first anti·smuggling legislation to operate at a stated distance seaward was in 1719, applying to the master of any ship 'found at anchor or hovering within two leagues from the shore.' Later enactments extended this limit to three, then four, then eight leagues. A statute of 1794 gave power to seize and confiscate customable goods in vessels 'found at anchor, or hovering' inside specific straight lines drawn between lines on the British coasts, thus resembling the 'King's Chambers' of the Stuart era. In 1805 the British Parliament extended the seizure limit to 100 leagues (300 miles) from the coasts of Great Britain and Ireland in respect of vessels 'belongi ng whOlly or in part to His Majesty's subjects, or whereof one-half of the persons on board shall be subjects of His Majesty,' Foreign-flag vessels could have fallen within this category. In the case of Le Louis (l 817) 165 E.R. 1464, the British Admiralty judge

809

hundredor Lord Stowell described these statutes as being permitted by 'the (ommon courtesy of nations for their convenience.''' Geoffrey Marston, "Hovering Acts," in 2 Encyclopedia of Public Intemational Law 884-85 (1995).

HOW. abbr. HOME OWNERS WARRANTY. How say you? Archaic. (Asked of a jury) how do you find? howsoever, adv. (14c) In whatever way; however. H.R. abbr. HOUSE OF REPRESENTATIVES. H.R. 10 plan. See KEOGH PLAN. HSR Act. See HART-SCOTT-RODINO ANTITRUST IMPROVE­ MENT ACT.

HTML. abbr. HYPERTEXT MARKUP LANGUAGE. http. abbr. HYPERTEXT TRANSFER PROTOCOL. hub-and-spoke conspiracy. See wheel conspiracy under CONSPIRACY.

hue usque (h~k ~s-kwee), adv. [Latin] Hist. Hitherto.• This term commonly appeared in pleadings. - Also spelled hucusque. HUD. abbr.

DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT.

hudegeld. See HYDEGELD. hue and cry. (lSc) Hist. 1. 1he pUblic uproar that, at common law, a citizen was expected to initiate after dis­ covering a crime. Also termed vociferatio; clamor. "Hue and Cry is the old Common Law mode of pursuing, 'with horn and voice: persons suspected of felony, or having inflicted a wound from which death is likely to ensue." 1 Joseph Chitty, A Practical Treatise on the Criminal Law26 (2d ed. 1826). "All were obliged to pursue the criminal when the hue and cry was raised. Neglect of these duties entailed an amerce­ ment of the individual, the township or the hundred. The sheriffs and the constables were under special obligations, as conservatores pacis, to fulfil these duties." 1 William Holdsworth, A History of English Law 294 (7th ed. 1956).

2. The pursuit of a felon accompanying such an uproar. 3. A written proclamation for the capture of a felon. huggery. English law. Rare. A barrister's improperly ingratiating actions to curry favor with a solicitor for the purpose of gaining professional employment. _ Many consider huggery a breach of Bar etiquette, but it is not expressly forbidden. hui (hoo-ee), n. In Hawaiian law, an association of persons who own land together, usu. as tenants in 10; common. [Cases: Associations (;:::> l; Sales Tenancy in Common huissier (wee-syay), n. [French fro huis" door"] 1. French law. An usher of a court; an officer (such as a marshal) who serves process. 2. Hist. In England, a ministerial officer attached to a court, responsible for service of process, issuing executions, and maintaining order during court sessions. hulk, n. (l7c) Hist. In England, a dismantled ship used as a prison .• Living conditions in hulks were notoriously poor, and their use as prisons ended as part of the broad prison-reform movements of the mid-19th century.

humanitarian doctrine. See

LAST-CLEAR-CHANCE

DOCTRINE.

humanitarian intervention. See INTERVENTION. humanitarian law. Int'l law. Law dealing with such matters as the permissible use of weapons and other means of warfare, the treatment of prisoners of war and civilian populations in armed conflicts, and generally the direct impact of war on human life and liberty.• Most existing rules composing humanitarian law are codified in the Geneva Conventions and their proto­ cols. human-leukocyte antigen test. A medical process of analyzing the blood sample of a man in a paternity or legitimacy case by comparing certain indicators with the child's blood. Abbr. HLA test. See BLOOD­ GROUPING TEST. Cf. GENETIC-MARKER TEST. [Cases: Children Out-of-Wedlock (;:::>45,58.] human rights. (ISc) The freedoms, immunities, and benefits that, according to modern values (esp. at an international level), all human beings should be able to claim as a matter of right in the society in which they live. See UNIVERSAL DECLARATION OF HUMAN RIGHTS. [Cases: Civil Rights (;::::::> 1026.] human trafficking. See TRAFFICKING. hundi. See HAWALA. hundred. (bef. 12c) 1. Formerly, a county subdivision that had its own local court. 'The hundred was a group of adjoining townships. It may have consisted of an area taxed at one hundred hides. Other explanations of the term 'hundred' are that the unit may have consisted of one hundred households, or the area had to supply one hundred fighting men for the national defence." L.B. Curzon, English Legal History 7 (2d ed. 1979).

2. The populace of such a subdivision. 3. See hundred court under COURT. 4. In the United States, a politi­ cal division derived from the English county division. • Hundreds existed in colonial Delaware, Maryland, Pennsylvania, and Virginia. Today, they exist only in Delaware. hundredal (hun-dri-d-tas). [fro Latin idoneus "suitable"] Hist. A person's ability or fitness. ~ Also termed idoneity.

idoneum sefacere; idoneare se (I-doh-nee-am see fay-sa­ ree; r-doh-nee-air-ee see). [Law Latin "to make oneself sufficient; to clear oneself"] Hist. To purge oneself, by oath, of a crime that one is accused of committing. idoneus (I-doh-nee-;)s), adj. [Latin] Roman law. (Of a person or thing) appropriate or suitable.• A respon­ sible or solvent man, for example, was known as an idoneus homo, while a pledge of sufficient security was termed idonea cautio. Also spelled (in English) idoneous. IDP. abbr. INTERNALLY DISPLACED PERSON. IDS. abbr. INFORMATION-DISCLOSURE STATEMENT. i.e. abbr. [Latin id est] (17c) That is IORANTIA JURIS NON EXCUSAT. ignorantia juris non excusat (ig-n;)-ran-shee-~ joor-is non ek-skyoo-sat or -zat). [Latin] Lack of knowledge about a legal requirement or prohibition is never an excuse to a criminal charge. _ In English, the idea is commonly rendered ignorance ofthe law is no excuse. Often shortened to ignorantia juris. Also termed ignorantia juris neminem excusat (ignorance of the law excuses no one); ignorantia legis non excusat: ignorantia juris haud excusat. [Cases: Criminal Law C=:>32.]

into the United States by arriving at the wrong time or place, by evading inspection, or by fraud. illegal interest. See USURY.

illegality, n. (l7c) l. An act that is not authorized by law.

2. The state of not being legally authorized. "A contract made ultra vires is void; but not [strictly speaking] on the ground of illegality. Lord Cairns .. , takes exception to the use of the term 'illegality,' pointing out that it is not the object of the contracting parties, but the incapacity of one of them, that avoids the contract." William R, Anson, Principles of the Law of Contract 190 (Arthur L Corbin ed., 3d Am. ed, 1919).

"It must not be thought that illegality in the law of contract is co-terminous with illegality in the criminal law, for a contract may be illegal without involving any breach of the criminal law at all." p.s. Atiyah, An Introduction to the Law of Contract 257 (3d ed, 1981).

"Almost the only knowledge of law possessed by many people is that ignorance of it is no excuse (ignoYantiajuris non excusat), This maxim was originally formulated at a time when the list of crimes, broadly speaking, represented current morality (mala in se), but we now have many other crimes that are the result of administrative or social regula­ tion (mala prohibita), which are equally governed by the maxim, The rule is, then, that whereas ignorance of fact can excuse, to the extent that it negatives mens rea or fault, ignorance of the law generally does not." Glanville Williams, Textbook of Criminal Law40S (1978),

3. The state or condition ofbeing unlawfuL. The affir­ mative defense of illegality must be expressly set forth in the response to the opponent's pleading. Fed. R. Civ, P.8(c). illegally obtained evidence. See EVIDENCE. illegal per se. Unlawful in and of itself. illegal rate. See INTEREST RATE. illegal search. See unreasonable search under SEARCH. illegal strike. See STRIKE. illegal subdivision. See SUBDIVISION. illegal tax. See TAX,

ignoratio elenchi (ig-n~-ray-shee-oh e-leng-kI or ig-n~­ rab-tee-oh i-Ieng-kee). [Law Latin "ignorance of the conclusion to be proved"] (l6c) An advocate's misun­ derstanding of an opponent's position, manifested by an argument that fails to address the opponent's point; the overlooking of an opponent's counterargument. • This fallacy oflogic often involves an advocate's trying to prove something that is immaterial to the point to be decided. ignore, vb. (lB01) 1. To refuse to notice, recognize, or consider, 2. (Of a grand jury) to reject (an indictment) as groundless; to no-bill (a charge). ignoring, n. Family law. A parent's or caregiver's pattern of depriving a child of essential intellectual or emo­ tional stimulation or of otherwise stifling a child's emo­ tional growth and intellectual development, essentially by being unavailable. Cf. ISOLATING; REJECTING. lIED. abbr. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS. ill, adj. (Of a pleading) defective, bad, or null. illation (i-lay-sh~n), (16c) l. The act or process of infer­ ring, 2. An inference; that which is inferred. il1egal, adj. Forbidden by law; unlawful . illegal alien. See ALIEN. illegal bargain. See BARGAIN, illegal consideration. See CONSIDERATION (1). illegal contract. See CONTRACT, illegal entry. (IBc) 1. Criminal law. The unlawful act of going into a building with the intent to commit a crime. _ In some jurisdictions, illegal entry is a lesser included offense of burglary. [Cases: Burglary

i

illegal tax protester. See TAX PROTESTER. illegal vote. See VOTE (1). illegitimacy. (17c) 1. Unlawfulness. 2. The status of a person who is born outside a lawful marriage and who is not later legitimated by the parents. Also termed bastardy. Cf. LEGITIMACY. [Cases: Children Out-of1.] Wedlock illegitimate, adj. (l6c) 1. (Of a child) born out oflawful wedlock and never having been legitimated .• Under modern ecclesiastical law, a child born out of wedlock may be automatically legitimated if the parents later marry. A child conceived while the mother is married but born after she is divorced or widowed is considered legitimate. [Cases: Children Out-of-Wedlock 1.] 2. Against the law; unlawful . 3. Improper . 4. Incorrectly inferred . 5. Ecclesiastical law. (Of a child) born within a marriage that is regarded as an invalid sacrament from its inception, illegitimate child. See CHILD, ill fame. Evil repute; notorious bad character. Cf. FAMA PUBUCA, illicenciatus (il-h-sen-shee-ay-t~s). [Law LatinI Without license. illicit (i[l]-lis-;)t), adj. (16c) Illegal or improper .

illicit cohabitation. See COHABITATION. illicitum collegium (i-lis-385.] - immediacy, immedi­ ateness, n. immediate annuity. See ANNUITY. immediate breach. See BREACH OF CONTRACT. immediate cause. See CAUSE (1). immediate control. (1962) Criminal procedure. 1. The area within an arrestee's reach .• A police officer may conduct a warrantless search of this area to ensure the officer's safety and to prevent the arrestee from destroy­ ing evidence. [Cases: Arrest (;::::>71.1(5); Automobiles (;::::>349.5(10).) 2. Vehicular control that is close enough to allow the driver to instantly govern the vehicle's movements.• A driver's failure to maintain immedi­ ate control over the vehicle could be evidence of neg­ ligence. immediate death. See DEATH. immediate descent. See DESCENT. immediate family. See FAMILY.

immunity

811

immediate intent. See INTENT (1). immediately-apparent requirement. (1978) Criminal procedure. The principle that a police officer must have probable cause to believe that an item is contraband before seizing it .• This plain-view exception to the warrant requirement was first announced in Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022 (1971). "An object may not be seized from a car merely because the police plain view of it was lawfully acquired; there must be probable cause that the object is a fruit, instrumentality or evidence of crime. And under the 'immediately apparent' requirement of Coolidge v. New Hampshire, this probable cause must be determined without examination of the object other than is justified by the purpose underlying police entry of the vehicle." Wayne R. LaFave & Jerold H. Israel, Criminal Procedure § 3.7, at 201 (2d ed. 1992).

immediately harmful behavior. See HARMFUL

BEHA­

VIOR.

immediately pending motion. See MOTION (2). immediate notice. See NOTICE. immediate-notice clause. Insurance. A provision in many insurance policies obligating the insured to notify the insurer as soon as possible after a claim arises .• A requirement in a policy for "prompt" or "immediate" notice or that notice must be given "immediately," "at once," "forthwith," "as soon as practicable," or "as soon as possible" - generally means that the notice must be given within a reasonable time under the cir­ cumstances. [Cases: Insurance ~3154.] immediate past president. 1. See PRESIDENT. 2. See EMERITUS.

immediate possession. See POSSESSION. immemorial (im-a-mor-ee-al), adj. (l7c) Beyond memory or record; very old. See TIME IMMEMORIAL. immemorial possession. See POSSESSION. immemorial usage. See USAGE. immigrant. (l8c) A person who enters a country to settle there permanently; a person who immigrates. Cf. EMIGRANT. alien immigrant. An immigrant who has not yet been naturalized. immigration, n. (17c) The act ofentering a country with the intention of settling there permanently. Cf. EMI­ GRATION. [Cases: Aliens, Immigration, and Citizenship (,..~ 100-430.] - immigrate, vb. immigrant, n. Immigration and Nationality Act. A comprehensive federal law regulating immigration, naturalization, and the exclusion of aliens. 8 USCA §§ 1101-1537. - Also termed Nationality Act. [Cases: Aliens, Immigration, and Citizenship ~ 102.] Immigration and Naturalization Service. A former U.S. Department ofJustice agency that administered the Immigration and Nationality Act and operates the U.S. Border Patrol. - Abbr. INS. See UNITED STATES CITI­ ZENSHIP AND IMMIGRATION SERVICES. [Cases: Aliens, Immigration, and Citizenship ~ 140-155.]

Immigration Appeals Board. See BOARD OF IMMIGRA­ TION APPEALS.

imminent danger. See DANGER. imminent hazard. See HAZARD (1). imminently dangerous. See DANGEROUS. imminent-peril doctrine. See EMERGENCY DOCTRINE (1).

immiscere (i-mis-a-ree), vb. [Latin] Roman law. To mix or mingle with; to meddle with .• This term took on the figurative sense of meddling in another's affairs (e.g., acting as if one were an heir), for which a person could be held accountable. immobilia (im-3.] discretionary immunity. (1965) A qualified immunity for a public official's acts, granted when the act in question required the exercise of judgment in carrying out official duties (such as planning and policy-mak­ ing). 28 USCA § 2680(a). [Cases: Municipal Corpora­ tions (:=)728.] "Probably no one test will control the decision on discre­ tionary immunity. Although the fact that the government has omitted to act is not in itself a defense, the discretion­ ary immunity is frequently emphasized in nonfeasance cases. On the other hand, where the government's activity is affirmative, specific, and in violation of a statute, regu­ lation, or constitutional provision imposing a duty upon government, courts are often willing to say there is no room for discretion." Prosser and Keeton on the Law of Torts § 131, at 1041-42 (W. Page Keeton ed., 5th ed. 1984).

executive immunity. (1941) 1. The absolute immunity of the U.S. President or a state governor from civil damages for actions that are within the scope of official responsibilities. lCases: United States ~;) 26.] 2. The qualified immunity from civil claims against lesser executive officials, who are liable only if their conduct violates dearly established constitu­ tional or statutory rights .• Executive immunity gen­ erally protects an official while carrying out clearly established responsibilities about which a reasonable person would know. Cf. executive privilege under PRIVILEGE (3). foreign immunity. The immunity of a foreign sover­ eign, its agents, and its instrumentalities from liti­ gation in U.S. courts. [Cases: International Law 10.31-10.39.]

818

government immunity. See sovereign immunity. intergovernmental immunity. (1935) The immunity between the federal and state governments based on their independent sovereignty. See I:>ITERGOVERN­ MENTAL-IMMUNITY DOCTRINE. judicial immunity. (1850) The immunity of a judge from civil liability arising from the performance of judicial duties. [Cases: Judges C=>36.] legislative immunity. (1890) The immunity of a legisla­ tor from civil liability arising from the pertormance of legislative duties. See congressional immunity. [Cases: Municipal Corporations ~~, 170.] prosecutorial immunity. The absolute immunity of a prosecutor from civil liability for decisions made and actions taken in a criminal prosecution. [Cases: District and Prosecuting Attorneys C=> 10;] qualified immunity. (1877) Immunity from civillia­ bility for a public official who is performing a dis­ cretionary function, as long as the conduct does not violate clearly established constitutional or statu­ tory rights. Also termed prima facie privilege. Cf. absolute immunity. [Cases: Civil Rights C=> 1376; Officers and Public Employees (:=.) 114.] sovereign immunity. (1857) 1. A government's immunity from being sued in its own courts without its consent. • Congress has waived most ofthe federal government's sovereign immunity. See FEDERAL TORT CLAIMS ACT. [Cases: United States C=> 125.] 2. A state's immunity from being sued in federal court by the state's own citizens. Also termed government immunity; governmental immunity. work-product immunity. See WORK-PRODUCT RULE. 2. Torts. A doctrine proViding a complete defense to a tort action.• Unlike a privilege, immunity does not negate the tort, and it must be raised affirmatively or it will be waived. Cf. PRIVILEGE (2). charitable immunity. (1935) The immunity of a chari­ table organization from tort liability. - This immunity has been eliminated or restricted in most states. ­ Also termed eleemosynary defense. [Cases: Charities C=>45(2).] corporate immunity. A corporate officer's immunity from personal liability for a tortious act committed while acting in good faith and within the course of corporate duties. husband-wife immunity. (1951) The immunity of one spouse from a tort action by the other spouse for personal injury.• The immunity arose from the age-old notion that a husband and wife were one in the eyes of the law, so that one could not injure the other there being no "other." Most states and the District of Columbia have abolished interspousal tort immunity either by judicial opinion or by statute. Some states have abolished the rule only in specific instances such as intentional or vehicular torts. Also termed interspousal immunity; interspousal tort

819

imparl

immunity; marital immunity. [Cases: Husband and Wife (::::>205(2).] interspousal immunity. See husband-wife immunity judgmental immunity. See ERROR-OF-JUDGMENT RULE.

marital immunity. See husband-wife immunity. parental immunity. (1930) 1. The principle that children cannot sue their parents, and that parents cannot sue their children, for tort claims.• This tort immunity did not exist at English common law; it was created by American courts, first appearing in Hewellette v. George, 9 So. 885 (Miss. 1891). Many courts have abol­ ished the doctrine for some purposes, such as actions by unemancipated minors against parents to recover for injuries sustained in motor-vehicle accidents. See, e.g., Merrick v. Sutterlin, 610 P.2d 891 (Wash. 1980) (en bane). Nor does the immunity apply when an injury is inflicted by the parent or child through willful, wanton, or criminal conduct. See, e.g., Nudd v. Matsoukas, 131 N.E.2d 525 (Ill. 1956). Also termed parent-child immunity; parental-immunity doctrine. [Cases: Parent and Child ~'")1l.]2. The principle that parents are not liable for damages caused by the ordinary negligence of their minor child. Cf. PAREN­ TAL-LIABILITY STATUTE. [Cases: Parent and Child (;::J 13.5(2).] 3. Criminal law. Freedom from prosecution granted by the government in exchange for the person's testi­ mony.• By granting immunity, the government can compel testimony despite the Fifth Amendment right against self-incrimination - because that testi­ mony can no longer incriminate the witness. [Cases: Criminal Law (::::>42.] pocket immunity. (I983) Immunity that results from the prosecutor's decision not to prosecute, instead of from a formal grant of immunity. - Also termed informal immunity. [Cases: Criminal Law (::::>42.] testimonial immunity. (1938) Immunity from the use ofthe compelled testimony against the witness.• Any information derived from that testimony, however, is generally admissible against the witness. [Cases: Criminal Law (::::>42; Witnesses (::::>304.] 'Testimonial immunity is a logical corollary to a person's fifth amendment right not to 'be compelied in any criminal case to be a witness against himself.' It provides that when a witness is compelled to testify for any reason, his testi­ mony cannot be used against him in a subsequent criminal proceeding. It also follows that the immunity is not avail­ able where the witness testifies voluntarily, and that the protection applies only in a subsequent criminal prosecu­ tion in which the witness is subject to prosecution for an offense related to his earlier testimony." 2 Paul H. Robinson, Criminal Law Defenses § 205, at 482-83 (1984).

transactional immunity. (1966) Immunity from pros­ ecution for any event or transaction described in the compelled testimony.• This is the broadest form of immunity. [Cases: Criminal Law (::::>42.] use immunity. (1970) Immunity from the use of the compelled testimony (or any information derived from that testimony) in a future prosecution against

the witness.• After granting use immunity, the gov­ ernment can still prosecute if it shows that its evidence comes from a legitimate independent source. - Also termed use/derivative-use immunity; derivative-use immunity. [Cases: Criminal Law (""::>42.] 4. Freedom of a person against having a given legal relation altered by someone else's act or omission. immunize, vb. (1892) To grant immunity to . impacted area. A region that is affected by some event; esp., a region in which the school population increases due to an influx of federal employees who are working on a federal project or activity, but the tax revenue declines due to the U.S. government's immunity from local taxes. impact rule. (1865) Torts. The common-law require­ ment that physical contact must have occurred to allow damages for negligent infliction ofemotional distress .• This rule has been abandoned in most jurisdictions. ­ Also termed physical-impact rule. [Cases: Damages 57.16(2).] impair, vb. (17c) To diminish the value of (property or a property right).• This term is commonly used in refer­ ence to diminishing the value of a contractual obliga­ tion to the point that the contract becomes invalid or a party loses the benefit of the contract. See CONTRACTS CLAUSE.

impaired capital. See CAPITAL. impairing the morals of a minor. (1931) The offense of an adult's engaging in sex-related acts, short of inter­ course, with a minor.• Examples of this conduct are fondling, taking obscene photographs, and showing pornographic materials. - Also termed unlawful sexual conduct with a minor; corrupting; corruption of a minor. Cf. CONTRIBUTI"'G TO THE DELINQUENCY OF A MI"'OR. [Cases: Infants 13.] impairment, n. (14c) The fact or state ofbeing damaged, weakened, or diminished . - impair, vb. severe impairment. In social-security or disability law, a physical or mental impairment that greatly restricts a person's ability to perform ordinary, neces­ sary tasks ofdaily life. See DISABIUTY (2); MAJOR LIFE ACTIVITY. [Cases: Social Security and Public Welfare C=140.20.] impalement, n. (l7c) Hist. An ancient mode of inflict­ ing punishment by thrusting a sharp pole through the body. Formerly also spelled empalement. - impale, vb. impanel, vb. See EMPANEL. impaneled jury. See JURY. imparcare (im-pahr-kair-ee), vb. [Law Latin "to enclose"] Hist. To impound; to confine in prison. See CAReER. imparl (im-pahrl), vb. 1. Hist. To request or obtain an imparlance. 2. To confer with the opposing party in

imparlance

an effort to settle a dispute amicably; to discuss settle­ ment. imparlance (im-pahr-l~nts). Hist. 1. A continuance granted for the purpose of giving the requesting party (usu. the defendant) further time to answer the adver­ sary's last pleading (esp. the plaintiff's writ, bill, or count), often so that the parties will have time to settle the dispute. - Imparlances were abolished in England in 1853.2. A petition for such a continuance. 3. The per­ mission granting such a continuance. - Formerly also spelled emparlance. - Also termed licentia loquendi. "After defence made, the defendant must put in his plea. But, before he pleads, he is entitled to demand one impar' lance, or licentia loql.lendi, and may have more granted by consent of the plaintiff; to see if he can end the matter amicably without farther suit, by talking with the plain· tiff ...." 3 William Blackstone, Commentaries on the Laws of England 298 (1768). "An imparlance is the time allowed by the court to either party, upon request, to answer the pleading of his opponent. Imparlance, from the French 'parler' - to speak in its most common signification, means time to plead. Formerly the parties, in the course of oral pleadings, were allowed time to speak or confer with one another, so that they might endeavor to settle the matters in dispute, and later, when the pleadings came to be in writing, the court permitted a certain time for each to plead to or answer the pleading of his opponent. In modern practice the term is rarely used ...." BenjaminJ. Shipman, Handbook of Common·Law Pleading § 234, at 405 (Henry Winthrop Ballantine ed., 3d ed. 1923).

general imparlance. The allowance of time until the court's next term, without reserving to the defen­ dant the benefit of any exception. - With this type of imparlance, the requesting defendant cannot later object to the jurisdiction of the court or plead any matter in abatement. general special imparlance. The allowance of time with a saving of all exceptions, so that a defendant might later plead not only in abatement but also to the jurisdiction. special imparlance. The allowance of time with a saving only of exceptions to the writ, bill, or count, but not to the court's jurisdiction. impartial, adj. (16c) Unbiased; disinterested. impartial chair. (1993) 1. ARBITRATOR. 2. MEDIATOR. Also termed impartial chairman. impartial expert. See EXPERT. impartial jury. See JURY. impartible (im-pahr-t;J-b;Jl), adj. (14c) Indivisible . impartible feud. See FEUD (1). impasse (im-pas). A point in negotiations at which agreement cannot be reached. - A neutral third party (such as a mediator) is often called in to help resolve an impasse. "Not only is the employer free after impasse to implement changes already offered to the union, but either party is free after impasse to decline to negotiate further. Since impasse signifies that the parties have exhausted (at least temporarily) the avenues of bargaining, termination of

820 bargaining at that point cannot be thought to demon· strate a cast of mind against reaching agreement." Robert A. Gorman, Basic Text on Labor Law: Unionization and Col­ lective Bargaining 447 (1976).

impeach, vb. (14c) 1. To charge with a crime or miscon­ duct; esp., to formally charge (a public official) with a violation of the public trust . _ Impeaching a federal official, such as the President, the Vice Presi­ dent, or a judge, requires that a majority of the U.S. House of Representatives vote to return at least one article of impeachment to the U.S. Senate, itemizing the charges and explaining their factual grounds. Even if an official is impeached, removal from office does not occur unless two-thirds of the senators who are present vote for conviction. 2. To discredit the veracity of (a witness) 1127; Pleading 364(4).] ''The court will not strike out the matter unless its imperti­ nence clearly appears; for if erroneously stricken out, the error is irremediable; if left to stand, the court may set the matter right in taxing the costs. Matter which is scandalous is also impertinent." William C. Anderson. A Dictionary Of Law 526 (1889).

impescare (im-pd-skair-ee), vb. (fr. Law French empe­ scher "to impeach"] Hist. To impeach; to accuse. impetitio vasti (im-p.Hish-ee-oh vas-tT). See IMPEACH­ MENT OF WASTE.

impetrare (im-pd-trair-ee), vb. [Latin] Roman law. To obtain by request .• This word often appeared in peti­ tions requesting a formula for an action from a praetor. It performed a similar function under English law for those seeking a writ from Chancery. The English word impetrate derives from this Latinism. Cf. FORMULA. impetration (im-pd-tray-shdn). 1. Hist. The act of peti­ tioning for a writ. 2. Hist. Eccles. law. The act ofobtain­

822

ing a papal benefice for bestowal by the king or other lay patron. - impetrate, vb. impignorata (im-pig-n. implacitare (im-plas-. 2. To be involved or affected . implication. (15c) 1. The act of showing involvement in something, esp. a crime or misfeasance . 2. An inference drawn from something said or observed . necessary implication. (18c) An implication so strong in its probability that anything to the contrary would be unreasonable. implicit cost. See opportunity cost under COST (1). implied, adj. (16c) Not directly expressed; recognized by law as existing inferentially . See IMPLY (1). Cf. EXPRESS. implied abandonment. See ABANDONMENT (10). implied acceptance. See ACCEPTANCE (4). implied acquittal. See ACQUITTAL. implied actual knowledge. See actual knowledge (2) under KNOWLEDGE. implied admission. See ADMISSION (1). implied agency. See AGENCY (1). implied amnesty. See AMNESTY. implied assent. See ASSENT. implied assertion. See assertive conduct under

c>

CONDUCT.

implied assumption. See ASSUMPTION.

823

import

implied assumption of the risk. See ASSUMPTION

OF

THE RISK.

implied authority. See AUTHORITY (1). implied bias. See BIAS. implied coercion. See UNDUE INFLUENCE (1). implied color. See COLOR. implied condition. See CONDITION (2). implied confession. See CONFESSION. implied consent. See CONSENT (1). implied consideration. See CONSIDERATION (1). implied contract. See CONTRACT. implied contractual indemnity. See INDEMNITY. implied covenant. See COVENANT (1). implied covenant of good faith and fair dealing. See COVENANT

(1).

implied crime. See constructive crime under CRIME. implied dedication. See DEDICATION. implied duty of cooperation. See DUTY (1). implied easement. See EASEMENT. implied indemnity. See INDEMNITY. implied in fact, adj. Inferable from the facts of the case. implied-in-fact condition. See CONDITION (2). implied-in-fact contract. See CONTRACT. implied in law, n. (1806) Imposed by operation oflaw and not because of any inferences that can be drawn from the facts of the case. implied-in-Iaw condition. See constructive condition under CONDITION (2). implied-in-Iaw contract. See CONTRACT. implied intent. See INTENT (1). implied license. See LICENSE. implied license by acquiescence. See LICENSE. implied license by conduct. See LICENSE. implied license by equitable estoppel. See LICENSE. implied license by legal estoppel. See LICENSE. implied-license doctrine. 1. The principle that a person's specific conduct may be tantamount to a grant of per­ mission to do something. 2. The principle that in some specified circumstances a statute can be construed as supplying a necessary authority by operation oflaw. implied malice. See MALICE. implied negative covenant. See COVENANT (1). implied notice. See NOTICE. implied obligation. See obediential obligation under OBLIGATION.

implied partnership. See partnership by estoppel under PARTNERSHIP.

implied permission. See PERMISSION. implied power. See POWER (3).

implied promise. See PROMISE.

implied reciprocal covenant. See COVENANT (4).

implied reciprocal servitude. See implied reciprocal

covenant under COVENANT (4). implied repeal. See REPEAL. implied reservation. See RESERVATION. implied-reservation-of-water doctrine. A legal doctrine permitting the federal government to use and control, for public purposes, water appurtenant to federal lands. See EMINENT DOMAIN. [Cases: Waters and Water Courses implied term. See TERM (2). implied trust. 1. See constructive trust under TRUST. 2. See resulting trust under TRUST. implied waiver. See WAIVER (1). implied warranty. See WARRANTY (2). implied warranty of fitness for a particular purpose. See WARRANTY (2). implied warranty of habitability. See WARRANTY (2). implied warranty of merchantability. See WARRANTY (2).

imply, vb. (I4c) 1. To express or involve indirectly; to suggest . Cf. INFER. 2. (Of a court) to impute or impose on equitable or legal grounds . 3. To read into (a document) . See implied term under TERM (2). implication, n. "Anglo-American judges, who continually evaluate facts, often use the phrase by implication (= by what is implied, though not formally expressed, by natural inference), along with its various cognates. Judges (by implication) draw 'natural inferences' and thereby decide that something or other was, in the circumstances, 'implied.' Through the process of hypallage a semantic shift by which the attributes of the true subject are transferred to another subject the word imply has come to be used in reference to what the judges do, as opposed to the circumstances. This specialized use of imply runs counter to popular lay use and is not adequately treated in English-language dictionaries. 'The lawyer's imply has directly encroached on the word infer. Whereas nonlawyers frequently use inferfor imply, lawyers and judges conflate the two in the opposite direc­ tion, by using imply for infer. In analyzing the facts of a case, judges will imp/yone fact from certain others. (From is a telling preposition.) Nonlawyers believe they must be inferring an additional fact from those already known; if contractual terms are implied, they must surely be implied by the words or circumstances of the contract and not by the judges." Bryan A. Garner, A Dictionary of Modern Legal Usage 423, 424 (2d ed. 1995).

import, n. (16c) 1. A product brought into a country from a foreign country where it originated . See PARALLEL IMPORTS. 2. The process of bringing foreign goods into a country . Cf. EXPORT (1), (2). 3. The meaning; esp., the implied meaning . 4. Importance; sig­ nificance 44.J objective impossibility. Impossibility due to the nature of the performance and not to the inability of the indi­ vidual promisor. [Cases: Contracts 0309.] subjective impossibility. Impossibility due wholly to the inability of the individual promisor and not to the nature of the performance. [Cases: Contracts 309.J supervening impossibility. Impossibility arising after the formation of a contract but before the time when the promisor's performance is due, and arising because of facts that the promisor had no reason to anticipate and did not contribute to the occurrence of. [Cases: Contracts C== 309.] "Contracting parties constantly take a voluntary risk, and it would make the whole basis of contract insecure if they were allowed to plead every and any kind of supervening impossibility. Moreover, a man need not undertake this kind of risk unless he chooses. He can deliberately exclude it by stipulations in his contract, if the other party is willing to contract with him on those terms." 2 Stephen's Commen· taries on the Laws of England 82-83 (L. Crispin Warmington ed., 21st ed. 1950).

impossibility-of-performance doctrine. (1960) The principle that a party may be released from a contract on the ground that uncontrollable circumstances have rendered performance impossible. Cf. FRUSTRATION (2); IMPRACTICABILITY. [Cases: Contracts C'" 309(1).] impossible consideration. See CONSIDERATION (1). impossible contract. See CONTRACT. impost (im-pohst). (16c) A tax or duty, esp. a customs duty . See DUTY (4). impostor (im-pos-t~r). (l6c) One who pretends to be someone else to deceive others, esp. to receive the benefits of a negotiable instrument. - Also spelled imposter. [Cases: Banks and Banking c..~ 147; Bills and Notes C==201, 279.] impostor rule. Commercial law. The principle that an impostor's indorsement of a negotiable instrument is not a forgery, and that the drawer or maker who issues the instrument to the impostor is negligent and there­ fore liable to the holder for payment. - If a drawer or maker issues an instrument to an impostor, any result­ ing forgery of the payee's name will be effective in favor of a person paying on the instrument in good faith or

825

improbation

taking it for value or collection. UCC § 3-404. [Cases: Banks and Banking (;=> 147; Bills and Notes (;=>201, 279.] impotence (im-p;H;;mts). (lSc) 1. A man's inability to achieve an erection and therefore to have sexual inter­ course.• Because an impotent husband cannot con­ summate a marriage, impotence has often been cited as a ground for annulment. - Also termed impotency; physical incapacity; erectile dysfunction. 2. Hist. Steril­ ity. 3. Rare. A woman's physical inability to engage in sexual intercourse. impound, n. The portion of a monthly mortgage payment that is earmarked to pay property taxes and the prop­ erty-insurance premiums. See impound account under ACCOUNT.

impound, vb. (lSc) 1. To place (something, such as a car or other personal property) in the custody of the police or the court, often with the understanding that it will be returned intact at the end of the proceeding. 2. To take and retain possession of (something, such as a forged document to be produced as evidence) in preparation for a criminal prosecution. impound account. See ACCOUNT. impoundment. (17c) 1. The action of impounding; the state of being impounded. See IMPOUND. 2. Constitu­ tionallaw. The President's refusal to spend funds appro­ priated by Congress .• Although not authorized by the Constitution and seldom used, impoundment effec­ tively gives the executive branch a line-item veto over legislative spending. [Cases: United States 309(1).] "The doctrines of Impossibility, Commerciallmpracticabil· ity or as the Uniform Commercial Code knows it, Excuse by Failure of Presupposed Conditions, comprise unclimbed peaks of contract doctrine. Clearly, all of the famous early and mid-twentieth century mountaineers, Corbin, Williston, Farnsworth and many lesser men have made attempts on this topic but none has succeeded in conquering the very summit.... In spite of attempts by all of the contract buffs and even in the face of eloquent and persuasive general statements, it remains impossible to predict with accuracy how the law will apply to a variety of relatively common cases. Both the cases and the Code commentary are full of weasel words such as 'severe' shortage, 'marked' increase, 'basic' assumptions, and 'force majeure.'" James J. White

& Robert S. Summers, Uniform Commercial Code § 3-9. at 155 (3d ed. 1988).

imprescriptible (im-pm-skrip-t;}-b;:,l), adj. (16c) Not subject to prescription; not capable of being acquired by prescription. imprescriptible right. See RIGHT. impressment (im-pres-m. See FALSE IMPRISONMENT. "Imprisonment, by whatever name it is called, is a harsh thing, and the discipline that must be exerCised over human beings in close confinement can never be wholly agreeable to those subject to it. When an attempt is made to hide the harsh realities of criminal justice behind euphe­ mistic descriptions, a corrupting irony may be introduced into ordinary speech that is fully as frightening as Orwell's 'Newspeak.''' Lon L. Fuller, Anatomy of the Law 57 (1968).

imprisonment for debt. Hist. Detention of a debtor by court order to force the debtor to pay certain civil obli­ gations.• The remedy was usu. available only when the debt arose from nonpayment of taxes or fines owed to the Crown, or from the debtor's failure to pay court-ordered support or alimony, or from the debtor's failure to obey a decree ad factum praestandum. - Also termed civil imprisonment. See decree ad factum prae­ standum under DECREE. improbation. Scots law. An action to prove that a document is forged or otherwise false. - Also termed

proper improbation. reduction improbation. Scots law. An action in which a person who may be hurt or affected by a document can demand the document's production in court. • The person bringing the action may ask the court either to determine the document's effects or to nullify the

improper document. Ifthe document is not produced, the court can automatically declare it false or forged. improper, adj. (ISc) 1. Incorrect; unsuitable or irregular. 2. f;raudulent or otherwise wrongful. improper cumulation of actions. Hist. Under the com­ mon-law pleading system, the joining of inconsistent causes of action in one proceeding .• This is permitted under most modern pleading systems. improperfeud. See FEUD (1). improper influence. See UNDUE INFLUENCE (2). improper means of discovery. Trade secrets. A wrongful way of figuring out a competitor's trade secret, as by misrepresentation, eavesdropping, or stealing. [Cases: Antitrust and Trade Regulation C:::=-414.J improper motion. See MOTION (2). impropriate rector. See RECTOR (1). impropriation (im-proh-pree-ay-sh;m). Eccles. law. The grant of an ecclesiastical benefice to the use of a lay person, whether individual or corporate. See LAY IMPROPRIATOR. Cf. APPROPRIATION (5). "A church might also be appropriated to a layman, and the proper word to denote this was impropriation as distinct from appropriation, which was confined to the case of an allocation to a spiritual body." G,c. Cheshire, Modern Law of Rea! Property 333 (3d ed. 1933),

improve, vb. (16c) 1. To increase the value or enhance the appearance of something. 2. To develop (land), whether or not the development results in an increase or a decrease in value. - improver, n. improved land. See LAND. improved value. (1834) Real estate. In the appraisal of property, the value of the land plus the value of any improvements. improvement. (16c) An addition to real property, whether permanent or not; esp., one that increases its value or utility or that enhances its appearance. ­ Also termed land improvement. Cf. FIXTURE. [Cases:

Improvements C:::=-l.J

beneficial improvement. See valuable improvement.

general improvement. (17c) An improvement whose

primary purpose or effect is to benefit the public gen­ erally, though it may incidentally benefit property owners in its vicinity. local improvement. (1831) A real-property improve­ ment, such as a sewer or sidewalk, financed by special assessment, and specially benefiting adjacent property. [Cases: Municipal Corporations (;.':;)265.] necessary improvement. (17c) An improvement made to prevent the deterioration of property. public improvement. An improvement made to property owned by the state or any other political entity, such as a municipality. [Cases: Municipal Cor­ porations C:::=-26S; States C:::=-83.] valuable improvement. (I8c) An improvement that adds permanent value to the freehold .• Because of its nature, a valuable improvement would not typically

826

be made by anyone other than the owner. A valuable improvement may be slight and of small value, as long as it is both permanent and beneficial to the property. Also termed beneficial improvement. voluntary improvement. An improvement whose only purpose is ornamental. [Cases: Improvements C:::=-l. improvement bond. See revenue bond under BOND (3). improvement claim. See Jepson claim under PATENT CLAIM.

improvement invention. See INVENTION. improvement patent. See PATENT (3). improvidence (im-prahv-a-d.mts). (1Sc) A lack of fore­ sight and care in the management of property, esp. as grounds for removing an estate administrator. improvident (im-prahv-a-d;:mt), adj. (16c) 1. Lacking foreSight and care in the management of property. 2. Of or relating to a judgment arrived at by using misleading information or a mistaken assumption. impruiare (im-proo-ee-air-ee), vb. [Law Latin] Hist. To improve land. impubes (im-pyoo-beez), n. [Latin] Roman law. A child under the age of puberty.• Under Roman law, this term referred to a male under 14 and a female under 12. PI. impuberes (im-pyoo-ba-reez). Cf. INFANS. impugn (im-pyoon), vb. (14c) To challenge or call into question (a person's character, the truth ofa statement, etc.). - impugnment, n. impulse, 11. (17c) A sudden urge or inclination that prompts an unplanned action. uncontrollable impulse. (1844) An impulse so over­ whelming that it cannot be resisted .• In some juris­ dictions, an uncontrollable impulse serves as a defense to criminal conduct committed while in the grip of the impulse. See IRRESISTIBLE-IMPULSE TEST. [Cases: Criminal Law C::::> 50.] impunity (im-pyoo-na-tee). (16c) Exemption from pun­ ishment; immunity from the detrimental effects of one's actions . Cf. IMMUNITY (1). imputation, n. (16c) The act or an instance of imputing something, esp. fault or crime, to a person; an accusa­ tion or charge . imputation of payment. Civil law. The act of applying or directing a payment to principal or interest on a debt, or to a particular debt when there are two or more. La. Civ. Code arts. 1864, 1866. impute (im-pyoot), vb. (14c) To ascribe or attribute; to regard (usu. something undesirable) as being done, caused, or possessed by . imputation, n. imputable, adj. "The word 'impute' comes from im (in) and putare (reckon), It means to bring into the reckoning, to attribute or to ascribe, It is sometimes used to attribute vicariously, - to ascribe as derived from another. This is included properly

827

in arrears within the general import of the term but it is not its primary meaning. It may be used in many senses. Thus we may impute (ascribe) intent, knowledge, guilt, and so forth. Here it is used in the basic sense of imputing (ascrib· ing) the fact itself. Harm has been done. Did the defendant do it? Usually such an inquiry is purely factual. What really happened? At times, however, when all the facts are known we have to ask: Will the law impute (attribute or ascribe) what happened to the defendant? That is what is meant here by 'imputability.'" Rollin M. Perkins & Ronald N. Boyce, Criminal Law 605 (3d ed. 1982).

imputed disqualification. See vicarious disqualification under DISQUALIFICATION. imputed income. See INCOME. imputed interest. See INTEREST (3). imputed knowledge. See KNOWLEDGE. imputed negligence. See NEGLIGENCE. imputed notice. See NOTICE. in, prep. Under or based on the law of . in absentia (in ab-sen-shee-48.] inadvertent negligence. See NEGLIGENCE. inaedificatio (in-ee-di-fi-kay-shee-oh), n. [Latin] Roman law. The act of building on another's land with one's own materials, or on one's own land with another's materials.• 1his was a form of accessio. Regardless of the source of the materials, the building became the landowner's property. See ACCESSIO. in aemulationem (in ee-mY 182.] incident, adj. (ISc) Dependent upon, subordinate to, arising out of, or otherwise connected with (something else, usu. of greater importance) . incident, n. (ISc) 1. A discrete occurrence or happening 2. A depen­ dent, subordinate, or consequential part (of something else) . incidental, adj. (I7c) Subordinate to something of greater importance; having a minor role . incidental admission. See ADMISSION (1). incidental authority. See AUTHORITY (1). incidental beneficiary. See BENEFICIARY. incidental damages. See DAMAGES. incidental demand. See DEMAND (1). incidental main motion. See MOTION (2). incidental motion. See MOTION (2). incidental power. See incident power under POWER (3). incidental use. See USE (1).

incidenter (in-si-den-t;:lr). [Latin] Hist. Incidentally.

incident of ownership. (usu. pl.) (1821) Any right of

control that may be exercised over a transferred life­ insurance policy so that the policy's proceeds will be included in a decedent's gross estate for estate-tax purposes .• The incidents of ownership include the

rights to change the policy's beneficiaries and to borrow against, assign, and cancel the policy. [Cases: Internal Revenue C=>41SS.] incident power. See POWER (3). incident to employment. Workers' compensation. A risk that is related to or connected with a worker's job duties. [Cases: Workers' Compensation C=>61O-611.] incidere (in-sid-;:l-ree), vb. [Latin "fall into or on"] Roman law. To come within the scope of a law or to fall into a legal category; esp. to become involved in a situation that entangles a person in a legal action .• This term had a similar meaning under English law. For example, a person might become liable to (or "fall into") amerce­ ment (incidere in misericordiam). See AMERCEMENT. incipitur (in-sip-i-t;:lr). [Law Latin] Hist. It is begun.• This refers to the practice of entering the commence­ ment of a pleading on the court roll. incite, vb. (ISc) To provoke or stir up (someone to commit a criminal act, or the criminal act itself). Cf. ABET. incitee. A person who has been incited, esp. to commit a crime. inciteful, adj. Tending to incite . incitement, n. (ISc) 1. The act or an instance of pro­ voking, urging on, or stirring up. 2. Criminal law. The act of persuading another person to commit a crime; SOLICITATION (2). [Cases: Criminal Law C=>4S.] ­ inciteful, adj. "An inciter is one who counsels, commands or advises the commission of a crime. It will be observed that this defini­ tion is much the same as that of an accessory before the fact. What, then, is the difference between the two? It is that in incitement the crime has not (or has not necessarily) been committed, whereas a party cannot be an accessory in crime unless the crime has been committed. An acces­ sory before the fact is party to consummated mischief; an inciter is guilty only of an inchoate crime." Glanville Williams, Criminal Law612 (2d ed. 1961). "Emphasis upon the theory of one offense with guilt attach­ ing to several is quite appropriate because it is still part of the groundwork of our legal philosophy, so far as perpetra­ tors, abettors and inciters are concerned, despite the fact that some of the statutes require lipservice to the notion of a separate substantive offense, in the effort to avoid certain procedural difficulties. It explains how one may be guilty of a crime he could not perpetrate, by having caused or procured it as a result of his abetment or incitement." Rollin M. Perkins & Ronald N. Boyce, Criminal Law 732-33 (3d ed. 1982).

inciter. (ISc) A person who incites another to commit a crime; an aider or abettor. inciting revolt. See MUTINY. incivile (in-siv-;:l-lee), adj. [Law Latin] Irregular; out of the due course oflaw. incivism (in-si-viz-;:lm). (18c) Unfriendliness toward one's own country or its government; lack of good citizenship. inclausa (in-klaw-zJ). [Law Latin] Hist. An enclosure near a house; a home close. See CLOSE (1). in clientela (in klr-Jn-tee-l;:l). [Latin] Hist. In the relation between client and patron.

831

income

inclose, vb. See ENCLOSE. inclosure. See ENCLOSURE. include, vb. (I5c) To contain as a part of something. - The participle including typically indicates a partial list . But some drafters use phrases such as including without limitation and including but not limited to ­ which mean the same thing. See NAMELY. included offense. See lesser included offense under OFFENSE (1).

inclusionary-approach rule. (1981) The principle that evidence ofa prior crime, wrong, or act is admissible for any purpose other than to show a defendant's criminal propensity as long as it is relevant to some disputed issue and its probative value outweighs its prejudicial effect. [Cases: Criminal Law ~--:)369.2(1).] indusio unius est exclusio alterius. See EXPRESSIO UNIUS EST EXCLUSIO ALTERIUS.

inclusive deed. See inclusive grant under GRANT. inclusive grant. See GRANT. inclusive legal positivism. See INCORPORATIONISM. inclusive survey. See SURVEY. incognito (in-kog-nee-toh or in-kog-ni-toh), adj. or adv. [Latin "unknown"] (l7c) Without making one's name or identity known . incola (in-k3230.1-3257; Taxation 3466.] other income. Income not derived from an entitv's principal business, such as earnings from dividen'ds and interest. passive income. (1958) Income derived from a business, rental, or other income-producing activity that the earner does not directly participate in or has no immediate control over. See PASSIVE ACTIVITY. Cf. portfolio income. passive investment income. Investment income that does not involve or require active participation, such as gross receipts from royalties, rental income, divi­ dends, interest, annuities, and gains from the sale or exchange of securities. IRC (26 USCA) § 1362(d). [Cases: Internal Revenue personal income. (1851) The total income received by an individual from all sources. portfolio income. (1978) Income not derived in the ordinary course ofa trade or business, such as interest earned on saVings, dividends, royalties, capital gains, or other investment sources.• For tax purposes, losses on passive activities cannot be used to offset net portfolio income. Cf. passive income. prepaid income. (1935) Income received but not yet earned. Also termed deferred revenue. previously taxed income. An S corporation's undistrib­ uted taxable income taxed to the shareholders as ofthe last day of the corporation's tax year.• This income could usu. be withdrawn later by the shareholders without tax consequences. PTr has been replaced

832

by the accumulated adjustments account. - Abbr. PTI. real income. Income adjusted to allow for inflation or deflation so that it reflects true purchasing power. regular income. Income that is received at fixed or specified intervals. split income. (1949) An equal division between spouses of earnings reported on a joint tax return, allowing for equal tax treatment in community-property and common-law states. taxable income. (1856) Gross income minus all allow­ able deductions and exemptions.• Taxable income is multiplied by the applicable tax rate to compute one's tax liability. [Cases: Internal Revenue 0=)4529; Taxation (;:=>3448.] unearned income. (1921) 1. Earnings from investments rather than labor. Also termed investment income. 2. Income received but not yet earned; money paid in advance. Cf. earned income. unrelated-business income. (1952) Tax. Gross income earned by a nonprofit corporation from activities unrelated to its nonprofit functions .• A nonprofit corporation's income is tax-exempt only to the extent that it is produced by activities directly related to its nonprofit purpose. Also termed unrelated-busil1eSS taxable income. IRC (26 USCA) § 512(a)(3)(A). [Cases: Internal Revenue (;:=>4068.] "The [Internal Revenue] Service has justified the unrelated business income tax as a means of preventing unfair competition between tax-exempt and for-profit provid­ ers. Thus, part of the analysis of whether income from a business venture is unrelated business taxable income focuses on the impact of the activity on competitors by inquiring whether the activity at issue is one generally offered by commercial enterprise. The categorization of a business activity of an exempt organization as related or unrelated to the exempt purpose of the organization follows very few bright-line rules. Approaches to the question of exempt purposes within the context of unre· lated business income differ substantially from those used in the context of the qualification of an entity for exempt status itself: Barry R. Furrow et aI., Health Law § 8·1, at 419 (2d ed. 2000).

income-and-expense declaration. Family law. In child­ support litigation, a document that contains infor­ mation on a parent's income, assets, expenses, and liabilities. - Also termed financial statement. [Cases: Child Support ~ 183.] income approach. (1951) A method of appraising real property based on capitalization ofthe income that the property is expected to generate. - Also termed illcome­ capitalization approach. Cf. MARKET APPROACH; COST APPROACH. [Cases: Taxation income averaging. Tax. A method of computing tax by averaging a person's current income with that of pre­ ceding years. [Cases: Internal Revenue (;::=03092.] "A distinct departure from the strict annual system of taxing income is the concept of averaging income, allowed until repeal by the 1986 T.R.A .... [T]he rate at which the item was taxed was made to depend not only on the rates and level of income for that year, but upon the taxpayer's

in confinio majoris aetatis

833 experience over the past four years. The item was (some· times) taxed as if it had been received over a four·year period. Especially for authors, actors, athletes, and other taxpayers who have fluctuating or bunched income and face graduated tax rates that apply on an annual basis, income averaging was most important." John K. McNulty,

Federal Income Taxation of Individuals in a Nutshell 353 (5th ed. 1995).

income-based plan. See CHAPTER 13. income-basis method. A method of computing the rate of return on a security using the interest and price paid rather than the face value. income beneficiary. See BENEFICIARY. income bond. See BOND (3). income-capitalization approach. See

INCOME

APPROACH.

income exclusion. See EXCLUSION

(1).

income fund. See MUTUAL FUND. income in respect of a decedent. See INCOME. income property. See PROPERTY. income-shifting. (1957) The practice of transferring income to a taxpayer in a lower tax bracket, such as a child, to reduce tax liability.• Often this is accom­ plished by forming a Clifford trust. See Clifford trust under TRUST; kiddie tax under TAX. income statement. (1863) A statement of all the revenues, expenses, gains, and losses that a business incurred during a given period. - Also termed statement of income; profit-and-Ioss statement; earnings report. Cf. BALANCE SHEET.

income stock. See STOCK. income tax. See TAX. income-tax deficiency. See DEFICIENCY

(2).

income-tax return. See TAX RETURN. income-tax withholding. See WITHHOLDING. income-withholding order. (1986) A court order pro­ viding for the withholding of a person's income by an employer, usu. to enforce a child-support order. - Also termed wage-withholding order; wage-assignment order; wage assignment. Cf. ATTACHMENT OF WAGES. income yield. See CAPITALIZATION RATE. in commendam (in k;l-men-d;Jlu). [Law Latin] Civil law. In trust.• The phrase typically refers to property held in a limited partnership. See limited partnership under PARTNERSHIP. [Cases: Partnership C=>349.] in common. (16c) Shared equally with others, undi­ vided into separately owned parts. - Also termed in communi. See tenancy in common under TENANCY. in communi (in k;l-myoo-nr). [Law Latin] In common. incommunicado (in-b-myoo-ni-kah-doh), adj. [Spanish] (1844) 1. Without any means of communica­ tion. 2. (Of a prisoner) having the right to communicate with only a few designated people.

in communiforma (in k;l-myoo-nr for-m;l). [Law Latin] Hist. In common form; in general form rather than special form. - Also written in forma communi. incommutable (in-b-myoot-;l-b;ll), adj. (18c) (Of an offense) not capable of being commuted. See COMMU­ TATION.

incompatibility, n. (1875) Conflict in personality and disposition, usu.leading to the breakup of a marriage .• Every state now recognizes some form of incompatibil­ ity as a no-fault ground for divorce. See noJault divorce under DIVORCE. Cf. IRRECONCILABLE DIFFERENCES; IRRETRIEVABLE BREAKDOWN OF THE MARRIAGE.

Incompatibility Clause. The clause of the U.S. Constitu­ tion prohibiting a person from simultaneously holding offices in both the executive and legislative branches of the federal government. U.S. Const. art. I, § 6, par. 2, cl. 2. [Cases: Officers and Public Employees C=>30.3.] incompetence, n. (17c) 1. The state or fact of being unable or unqualified to do something . 2. INCOMPETENCY . - Also termed incompe­ tence; mental incompetence. Cf. INCAPACITY. [Cases: Mental Health C=>432; Witnesses C=>35.] - incom­ petent, adj. incompetency hearing. See PATE HEARING. incompetent, adj. (l6c) 1. (Of a witness) unqualified to testify. [Cases: Witnesses C=>35.] 2. (Of evidence) inad­ missible.• This sense is often criticized, as in the quo­ tation below. [Cases: Criminal Law C=>385; Evidence C=>148.] "[/ncompetentl is constantly used loosely as equivalent to 'inadmissible' on any ground. This use should be avoided." John H. Wigmore, A Students' Textbook of the Law of Evidence 36 (1935).

incompetent evidence. See EVIDENCE. incomplete instrument. See INSTRUMENT (3). incompleteness rejection. See REJECTION. incomplete transfer. See TRANSFER. in computo (in k;lm-pyoo-toh). [Law Latin] Hist. In com­ putation. inconclusive, adj. (18c) (Of evidence) not leading to a conclusion or definite result. in confinio majoris aetatis (in bn-fin-ee-oh m;l-jor-is ee-tay-tis). [Latin] Hist. Having nearly attained majority.• A person that undertook an obligation in confinio majoris aetatis could be held liable despite the fact that the person pleaded minority status. See MAjORENNITATI PROXIMUS. Cf. IN CONFINIO MINORIS AETATIS.

834

in confinio minoris aetatis

in confinio minoris aetatis (in k;m-fin-ee-oh mi-nor­ is ee-tay-tis). [Latin) Hist. Having nearly attained minority. Cf. IN CONFINIO MAJORIS AETATIS. in consequentiam (in kon-sa-kwen-shee-am). [Latin] Hist. As a consequence. in consideratione inde (in bn-sid-a-ray-shee-oh-nee in-dee). [Law Latin] In consideration thereof. in consideratione legis (in bn-sid-a-ray-shee-oh-nee lee-jis). [Law Latin]l. In consideration or contempla­ tion oflaw. 2. In abeyance. in consideratione praemissorum (in bn-sid-a-ray-shee­ oh-nee pree-mi-sor-am). [Law Latin] In consideration of the premises. in consimili casu (in kan-sim-a-h kay-s[y] 00). See CASU CONSIMILI. inconsistent, adj. (17c) Lacking agreement among parts; not compatible with another fact or claim . inconsistent defense. See DEFENSE (1). inconsistent presumption. See conflicting presumption under PRESUMPTION. inconsistent statement. See prior inconsistent statement under STATEMENT. in conspectu ejus (in kan-spek-t[yJoo ee-jas). [Law Latin] In his sight or view. in contemplation of death. See CONTEMPLATION OF DEATH. incontestability clause. Insurance. An insurance-pol­ icy provision (esp. found in a life-insurance policy) that prevents the insurer, after a specified period (usu. one or two years), from disputing the policy's validity on the basis of fraud or mistake; a clause that bars all defenses except those reserved (usu. conditions and the payment ofpremiums).• Most states require that a life­ insurance policy contain a clause making the policy incontestable after it has been in effect for a specified period, unless the insured does not pay premiums or violates policy conditions relating to military service. Some states also require similar provisions in accident and sickness policies. - Also termed noncontestabil­ ily clause; incontestable clause; uncontestable clause. Cf. CONTESTABILITY CLAUSE. [Cases: Insurance C=:> 3121.] incontestability status. Trademarks. A classification of a trademark that meets certain criteria including commercial use for five years after being placed on the Principal Register - as immune from legal challenge. • Although incontestability does not confer absolute immunity, it makes a challenge much more difficult 15 GSCA § 1065. [Cases: Trademarks C=:> 1352.] incontestable policy. See INSURANCE POLICY. incontinenti (in-kon-ti-nen-tI), adv. [Law Latin) Imme­ diately; without any interval or intermission. - Also spelled in continenti. incontrovertible-physical-facts doctrine. See PHYSICAL­ FACTS RULE.

inconvenience. See RULE OF INCONVENIENCE. inconvenient forum. See FORUM NON CONVENIENS. incorporamus (in-kor-pa-ray-mas). [Law LatinJ Hist. We incorporate.• This word indicated an intent to incor­ porate. "All the other methods therefore whereby corporations exist, by common law, by prescription, and by act of parliament, are for the most part reducible to this of the king '5 letters patent, or charter of incorporation. The king's creation may be performed by the words 'creamus, erigimus, fundamus, incorporamus,' or the like," 1 William Blackstone, Commentaries on the Laws of England 461 (1765).

incorporate, vb. (14c) 1. To form a legal corporation <she incorporated the family business>. [Cases: Corpora­ tions C=:>1.J 2. To combine with something else . 3. To make the terms of another (esp. earlier) document part of a document by specific reference ; esp., to apply the provisions of the Bill of Rights to the states by interpreting the 14th Amendment's Due Process Clause as encompassing those provisions. incorporation, n. (15c) 1. The formation of a legal cor­ poration. See ARTICLES OF INCORPORATION. [Cases: Corporations C=:> 1.] 2. Constitutional law. The process of applying the provisions of the Bill of Rights to the states by interpreting the 14th Amendment's Due Process Clause as encompassing those provisions .• In a variety ofopinions since 1897, the Supreme Court has incorporated the First, Fourth, Sixth, and Ninth Amendments into the Fourteenth Amendment's Due Process Clause. [Cases: Constitutional Law C=:>3850.] selective incorporation. Incorporation of certain provisions of the Bill of Rights.• Justice Benjamin Cardozo, who served from 1932 to 1938, first advo­ cated this approach. [Cases: Constitutional Law 3850.] total incorporation. Incorporation of all of the Bill of Rights.• Justice Hugo Black, who served on the U.S. Supreme Court from 1937 to 1971, first advocated this approach. [Cases: Constitutional Law C=:>3850.J 3. INCORPORATION BY REFERENCE. incorporate,

vb. incorporation by reference. (1886) 1. A method of making a secondary document part of a primary document by including in the primary document a statement that the secondary document should be treated as if it were contained within the primary one. • With a contract, the document to be incorporated must be referred to and described in the contract in such a way that the document's identity is clear beyond doubt. With a will, the rule applies only to clearly iden­ tified writings that existed when the testator signed the will. Gnif. Probate Code § 2-510. Not all jurisdictions follow this rule for either contracts or wills. - Often shortened to incorporation. Also termed adoption by Wills (;:='98.1 2. reference. [Cases: Contracts Patents. The explicit inclusion in one patent application

of information already contained in another document, such as another patent or patent application .• Gener­ ally, the reference must be to a U.S. patent or applica­ tion ifthe information is essential (i.e., the description, enabling disclosure, or best mode), but otherwise it may be to a foreign patent or a nonpatent publication. Incorporation by reference is often used in a continuing application to cite the disclosure contained in a parent application. Cf. CROSS-REFERENCE. [Cases: Patents 99.] 3. Patents. The inclusion in a patent claim of infor­ mation from an external drawing or table .• Incorpora­ tion by reference is a necessity doctrine, available when there is no other practical way to convey the informa­ tion in words, and when it is more concise and clear to refer the examiner to the graphic element. [Cases: Patents (;:::c. 100.] incorporationism. The philosophical view that (1) law is made possible by an interdependent convergence of behavior and attitude, esp. in agreements that take the form of social conventions or rules; (2) authoritative legal pronouncements must distinguish some situa­ tions from others; and (3) the legality of norms can depend on their substantive moral merit, not just on their pedigree or social source. See Jules Coleman,Ihe Practice ofPrinciple (2001); Wl Waluchow, Inclusive Legal Positivism (1994). - Also termed soft positivism; inclusive legal positivism. incorporator. (1883) A person who takes part in the for­ mation of a corporation, usu. by executing the articles of incorporation. - Also termed corporator. "An 'incorporator' must be sharply distinguished from a 'subscriber.' The latter agrees to buy shares in the cor­ poration; in other words, a subscriber is an investor and participant in the venture. An 'incorporator' on the other hand serves the largely ceremonial or ministerial functions described in this section. At one time many states required that an incorporator also be a subscriber of shares; however, such requirement appears to have disappeared in all states." Robert W. Hamilton, The Law of Corporations in a Nutshell 34 (3d ed. 1991).

in corpore (in kor-p3.] "Indece.nt exposure of the person to public view is also a common-law misdemeanor. Blackstone did not deal with it separately. The last offense which I shall mention,' he said, 'more immediately against religion and morality, and cogni­ zable by the temporal courts, is that of open and notorious

lewdness; either by frequenting houses of ill fame, which is an indictable offense; or by some grossly scandalous and public indecency, for which the punishment is by fine and imprisonment.' In other words private indecency was exclusively under the jurisdiction of the ecclesiastical court but public indecency of an extreme nature was indictable: Rollin M. Perkins & Ronald N. Boyce, Criminal Law 473 (3d ed. 1982) (quoting 4 William Blackstone, Commentaries on the Laws of England 64 (l769)).

indecent liberties. (I8c) Improper behavior, usu. toward another person, esp. ofa sexual nature. [Cases: Infants indedmable (in-des-20, 25, 50-61.]2. The right of an injured party to claim reimbursement for its loss. damage, or liability from a person who has such a duty. 3. Reimbursement or compensation for loss, damage, or liability in tort; esp., the right of a party who is sec­ ondarily liable to recover from the party who is primar­ ily liable for reimbursement of expenditures paid to a third party for injuries resulting from a violation of a common-law duty. Cf. CONTRIBUTION. indemni­ tory, adj. contractual indemnity. Indemnity that is expressly provided for in an agreement. [Cases: Indemnity C=::>25.) double indemnity. (1859) The payment of twice the basic benefit in the event of a specified loss, esp. as in an insurance contract requiring the insurer to pay twice the policy's face amount in the case of acciden­ tal death. rCases: Insurance equitable indemnity. 1. A doctrine allOWing a defen­ dant in a tort action to allocate blame to a codefendant or cross-defendant, and thereby to proportionally reduce legal responsibility, even in the absence of con­ tractual indemnity. - Also termed implied indem­ nity; doctrine of equitable indemnity. 2. See implied contractual indemnity. 3. See implied indemnity. [Cases: Indemnity C=::>51.j implied contractual indemnity. Indemnity that is not expressly provided for by an indemnity clause in an agreement but is nevertheless determined to be rea­ sonably intended by the parties, based on equitable considerations. Also termed eqUitable indemnity. lCases: Indemnity C=::>54.J implied indemnity. Indemnity arising from equitable considerations and based on the parties' relationship, as when a guarantor pays a debt to a creditor that the principal debtor should have paid. Also termed equitable indemnity. [Cases: Indemnity indemnity against liability. (1838) A right to indem­ nitythat arises on the indemnitor's default, regardless ofwhether the indemnitee has suffered a loss. [Cases: Indemnity C=::>31(4), 42.) "Indemnity against Liability ~- Where the indemnity is against liability, the cause of action is complete and the indemnitee may recover on the contract as soon as his liability has become fixed and established, even though he has sustained no actual loss or damage at the time he seeks to recover. Thus, under such a contract, a cause of action accrues to the indemnitee on the recovery of a judgment against him, and he may recover from the indem· nitor without proof of payment of the judgment." 42 c.J.5. Indemnity § 22 (1991).

indemnity bond. See BOND (2). indemnity clause. (1860) A contractual provision in which one party agrees to answer for any specified or

838

indemnity contract

unspecified liability or harm that the other party might incur. - Also termed hold-harmless clause; save-harm­ less clause. Cf. EXEMPTION CLAUSE. [Cases: Indemnity C=>25,31(4).] indemnity contract. See CONTRACT.

indemnity insurance. See first-party insurance under

INSURANCE.

indemnity land. 1. Public land granted to a railroad company to help defray the cost of constructing a right­ of-way.• This land indemnifies a railroad company for land given in a previous grant but later rendered unavailable for railroad use by a disposition or reser­ vation made after the original grant. [Cases: Public Lands C=>70.] 2. Federally owned land granted to a state to replace previously granted land that has since been rendered unavailable for the state's use. - Also termed place land. indemnity mortgage. See deed of trust under DEED. indemnity principle. Insurance. The doctrine that an insurance policy should not confer a benefit greater in value than the loss suffered by the insured. [Cases: Insurance C=>2104.] indenization (in-den-i-zay-sh,m), n. See DENIZATION. indenizen. See ENDENIZEN. indent, n. 1. Hist. An indented certificate of indebtedness issued by the U.S. government or a state government in the late 18th or early 19th century. 2. A contract or deed in writing. indent (in-dent), vb. Hist. 1. To cut in a serrated or wavy line; esp., to sever (an instrument) along a serrated line to create multiple copies, each fitting into the angles of the other. See CHIROGRAPH; INDENTURE (1). "If a deed be made by more parties than one, there ought to be regularly as many copies of it as there are parties, and each should be cut or indented (formerly in acute angles instar dentium, but at present in a waving line) on the top or side, to tally or correspond with the other; which deed, so made, is called an indenture.... Deeds thus made were denominated syngrapha by the canonists; and with us chirographa, or hand-writings; the word cirographum or cyrographum being usually that which is divided in making the indenture ...." 2 William Blackstone, Commentaries on the Laws of England 295-96 (1766).

2. To agree by contract; to bind oneself. 3. To bind (a person) by contract. indented deed. See INDENTURE (1). indenture (in-den-chdr), n. (14c) 1. A formal written instrument made by two or more parties with differ­ ent interests, traditionally having the edges serrated, or indented, in a zigzag fashion to reduce the possibility of forgery and to distinguish it from a deed poll. - Also termed indented deed. Cf. deed poll under DEED. [Cases: Deeds C=>3.] 2. A deed or elaborate contract Signed by two or more parties. ''The distinction between a deed poll and an indenture is no longer important since 8 & 9 Vict. C. 106, § 5. Formerly a deed made by one party had a polled or smooth-cut edge, a deed made between two or more parties was copied for each on the same parchment, and the copies cut apart with indented edges, so as to enable them to be

identified by fitting the parts together. Such deeds were called indentures. An indented edge is not now necessary to give the effect of an indenture to a deed purporting to be such." William R. Anson, Principles of the Law of Contract 84 (Arthur l. Corbin ed., 3d Am. ed. 1919). "An indenture was a deed with the top of the parchment indented, i.e., having an irregular edge. The deed was written out twice on a single sheet of parchment, which was then severed by cutting it with an irregular edge; the two halves of the parchment thus formed two separate deeds which could be fitted together to show their genu­ ineness. This contrasted with a 'deed poll,' a deed to which there was only one party, which at the top had been polled, or shaved even." Robert E. Megarry & M.P. Thompson, A Manual of the Law of Real Property 129 (6th ed. 1993).

corporate indenture. A document containing the terms and conditions governing the issuance of debt securi­ ties, such as bonds or debentures. [Cases: Corpora­ tions C=>471.] debenture indenture. (1938) An indenture contain­ ing obligations not secured by a mortgage or other collateral. • It is a long-term financing vehicle that places the debenture holder in substantially the same position as a bondholder secured by a first mortgage. [Cases: Corporations C=>470.] trust indenture. 1. A document containing the terms and conditions governing a trustee's conduct and the trust beneficiaries' rights. - Also termed indenture oftrust. [Cases: Trusts C=> 19-29.] 2. See deed oftrust under DEED. 3. Hist. A contract by which an apprentice or other person, such as a servant, is bound to a master, usu. for a term of years or other limited period. - inden­ tured, adj. indentured servant. See SERVANT. indenture of a fine. Hist. A document engrossed by the chirographer of fines to reflect penalties assessed by the court.• The chirographer prepared indentures in duplicate on the same piece of parchment, then split the parchment along an indented line through a word, sentence, or drawing placed on the parchment to help ensure its authenticity. See CHIROGRAPHER OF FINES. indenture oftrust. See trust indenture under INDEN­ TURE.

indenture trustee. See TRUSTEE (1). independence, n. (17c) The state or quality ofbeing inde­ pendent; esp., a country's freedom to manage all its affairs, whether external or internal, without control by other countries. independent, adj. (17c) 1. Not subject to the control or influence of another . 2. Not associated with another (often larger) entity . 3. Not dependent or contin­ gent on something else . independent adjuster. See ADJUSTER. independent adoption. See private adoption under ADOPTION.

independent advice. (1871) Counsel that is impartial and not given to further the interests of the person

839

giving it .• Whether a testator or donor received inde­ pendent advice before making a disposition is often an important issue in an undue-influence challenge to the property disposition. Also termed proper inde­ pendent advice. independent agency. See AGENCY (3).

independent agent. See AGENT (2).

independent audit. See AUDIT.

independent claim. See PATENT CLAIM.

independent conception. See INDEPENDENT DEVELOP­

MENT. independent contract. See CONTRACT. independent contractor. (1841) One who is entrusted to undertake a specific project but who is left free to do the assigned work and to choose the method for accomplishing it. • It does not matter whether the work is done for payor gratuitously. Unlike an employee, an independent contractor who commits a wrong while carrying out the work usu. does not create liability for the one who did the hiring. - Also termed contract labor. Cf. EMPLOYEE. [Cases: Labor and Employment C=29,3125.] independent counseL See COUNSEL.

independent covenant. See COVENANT (1).

independent creation. Copyright. A defense assert­ ing that a later work is not a derivative of an alleg­ edly infringed work, but is a product of coincidentally parallel labor. [Cases: Copyrights and Intellectual Property 756.] index offense. See OFFENSE (1).

Index of Patents. An annual two-part publication of the

u.s. Patent and Trademark Office, containing the year's List ofPatentees (Part I) and Index to Subjects ofInven­ tions (Part II), arranged by class and subclass. Index of Trademarks. An annual publication ofthe U.S. Patent and Trademark Office, listing all trademarks registered in a given year. Index to the U.S. Patent Classification System. An entry-level aid to using the Patent Office's classifica­ tion system, comprising an estimated 65,000 common terms and phrases and referring each entry to a class and subclass within the system. Indian child. Under the Indian Child Welfare Act, any unmarried person under the age of 18 who either is a member of an Indian tribe or is both eligible for mem­ bership in an Indian tribe and the biological child of a member ofan Indian tribe. See INDIAN CHILD WELFARE ACT. [Cases: Indians C:::> 132.] Indian Child Welfare Act. A federal act that governs child-custody proceedings including foster-care placement, preadoptive placement, adoptive placement, and termination ofparental rights - in cases involving a child of American Indian descent. 25 USCA §§ 1911 et seq. - Congress enacted the Act to help protect the best interests ofIndian children, to promote the stabil­ ity and security of Indian tribes and families, and to counteract the disproportionate foster-care placement and adoption of Indian children by non-Indians. The Act provides minimum federal standards for removing Indian children from their families and for placing them in foster or adoptive homes that will provide an environment reflecting the values of the Indian culture. The Act has an important jurisdictional feature: in a custody dispute involving an Indian child who resides in or is domiciled within an Indian reservation, the tribe and its tribal courts have exclusive jurisdiction. And in a custody dispute involving an Indian child who lives off a reservation, upon petition, any state court should usu. defer and transfer the case to the tribal court unless a party demonstrates good cause to the contrary. Abbr. ICWA. [Cases: Indians C=>213.} Indian Claims Commission. A federal agency dis­ solved in 1978 that adjudicated claims brought by American Indians, a tribe, or another identifiable group ofIndians against the United States. - The U.S. Court of Federal Claims currently hears these claims.

841

indictio

Indian country. 1. The land within the borders of all caution." William C. Canby Jr.. American Indian Law in a Nutshell 3-4 (2d ed. 1988). Indian reservations, the land occupied by an Indian community (whether or not located within a recog­ indicare (in-di-kair-ee), vb. [Latin] 1. Roman law. To nized reservation), and any land held in trust by the accuse (someone) ofa crime; to provide evidence against United States but beneficially owned by an Indian or someone. 2. Civil law. To show or discover. 3. Civil law. tribe. 2. Hist. Any region (esp. during the U.S. westward To fix or tell the price of a thing. See INDICIUM. migration) where a person was likely to encounter indicator. (17c) Securities. An average or index that Indians. shows enough of a correlation to market trends or Indian gambling. See GAMBLING. economic conditions that it can help analyze market performance. Indian land. Land owned by the United States but held in trust for and used by American Indians. - Also coincident indicator. An economic or market-activ­ termed Indian tribal property. Cf. TRIBAL LAND. [Cases: ity index or indicator that shows changing trends Indians 15l.] near the same time that overall conditions begin to change. Indian law. See NATIVE AMERICAN LAW. economic indicator. See ECONOMIC INDICATOR. Indian reservation. An area that the federal government has designated for use by an American Indian tribe, lagging indicator. 1. An index that indicates a major where the tribe generally settles and establishes a tribal stock-market change sometime after the change government. [Cases: Indians (;:=-, 156.] occurs. 2. See lagging economic indicator under ECONOMIC INDICATOR. Indian Territory. A former U.S. territory - now a part leading indicator. 1. A quantifiable index that predicts of the state of Oklahoma - to which the Cherokee, a major stock-market change. 2. See leading economic Choctaw, Chickasaw, Creek, and Seminole tribes were indicator under ECONOMIC INDICATOR. forcibly removed between 1830 and 1843.• In the late 19th century, most of this territory was ceded to the indicavit (in-di-kay-vit). [Law Latin "he has indicated"] United States, and in 1907 the greater part ofit became Hist. A writ of prohibition by which a church patron the State of Oklahoma. removes to a common-law court an ecclesiastical-court action between two clerics who dispute each other's Indian title. A right of occupancy that the federal gov­ right to a benefice .• The writ was long available ernment grants to an American Indian tribe based nominally up to the 20th century under the 1306 on the tribe's immemorial possession of the area.• statute De Conjunctim Feoffatis (34 Edw. 1), Actions Congress does not recognize tribal ownership of the concerning clerics' rights to a benefice were usu. tried land, only possession. A tribe or nation must actually, in ecclesiastical courts, but they could be removed to exclusively, and continuously use the property to estab­ a common-law court if the action involved a church lish that it is the ancestral home. An individual may patron in some way, as when one cleric was appointed claim Indian title by showing that the individual or his by a certain patron and the other cleric was appointed or her lineal ancestors continuously occupied a parcel by another patron. Cf. ADVOWSON. ofland, as individuals, before the land was closed to indicia (in-dish-ee-a), n. pl. (l7c) 1. Roman law. Evidence. settlers. Also termed aboriginal title; right of occu­ pancy. Cf. aboriginal title (1) under TITLE (2). [Cases: 2. (pl.) Signs; indications . Indians (::::> 151.J indicia of title. A document that evidences ownership of Indian tribal property. See INDIAN LAND. personal or real property. [Cases: Property (::::>9.] Indian tribe. A group, band, nation, or other organized indicium (in-dish-ee-am), n. [Latin] Roman law. 1. The group of indigenous American people, including any act of prOViding evidence against an accused. 2. The Alaskan native village, that is recognized as eligible act of promising recompense for a certain service. 3. A for the special programs and services provided by the U.S. government because ofIndian status (42 USCA § I sign or mark; esp., something used as a type of proof. 9601(36»; esp., any such group haVing a federally rec­ I See INDlCARE. ognized governing body that carries out substantial indict (in-drt), vb. (17c) To charge (a person) with a crime governmental duties and powers over an area (42 USCA by formal legal process, esp. by grand-jury presenta­ § 300f(14); 40 CFR § 146.3).• A tribe may be identi­ tion. Also formerly spelled endUe; indite. fied in various ways, esp. by past dealings with other indictable misdemeanor. See serious misdemeanor tribes or with the federal, state, or local government, under MISDEMEANOR. or by recognition in historical records. [Cases: Indians indictable offense. See OFFENSE (1). (::::> 102.J indictee (in-dI-tee). (16c) A person who has been "The Indian tribe is the fundamental unit of Indian law; in its absence there is no occasion for the law to operate. indicted; one officially charged with a crime. Yet there is no all-purpose definition of an Indian tribe. A indictio (in-dik-shee-oh), n. [Latin] I. Roman law. An group of Indians may qualify as a tribe for the purpose imperial proclamation establishing a 15-year period for of one statute or federal program, but fail to qualify for others. Definitions must accordingly be used with extreme the reassessment of property values for tax purposes.

indictment

• Indictio also referred to the IS-year cycle itself. 2. A declaration or proclamation, such as a declaration of war (indictio belli). 3. An indictment. PI. indictiones (in -dik-shee-oh-neez). indictment (in-dIt-m;mt), n. 04c) 1. The formal written accusation of a crime, made by a grand jury and pre­ sented to a court for prosecution against the accused person. See Fed. R. Crim. P. 7. [Cases: Indictment and Information 17.]2. The act or process ofpreparing or bringing forward such a formal written accusation. Cf. INFORMATION; PRESENTMENT (2). barebones indictment. (1963) An indictment that cites only the language of the statute allegedly violated; an indictment that does not provide a factual state­ ment. "What has been called 'a bare bones indictment using only statutory language' is quite common, and entirely permis· sible so long as the statute sets forth fully, directly, and expressly all essential elements of the crime intended to be punished." 1 Charles Alan Wright, Federal Practice and Procedure § 125, at 558·59 (3d ed. 1999).

duplicitous indictment (d[y]oo-plis-;)-t 190, 199, 290.J full indorsement. 1. See irregular indorsement. 2. See special indorsement. general indorsement. See blank indorsement. indorsement in blank. See blank indorsement. indorsement in full. See special indorsement. indorsement without recourse. See qualified indorse­ ment. irregular indorsement. (1842) An indorsement by a person who signs outside the chain of title and who therefore is neither a holder nor a transferor of the instrument.• An irregular indorser is gen­ erally treated as an accommodation party. Also termed anomalous indorsement;full indorsement. See

844

[Cases: Bills and Notes 191,294.] qualified indorsement. (1806) An indorsement that passes title to the instrument but limits the indors­ er's liability to later holders if the instrument is later dishonored.• Typically, a qualified indorse­ ment is made by writing "without recourse" or "sans recourse" over the signature. VCC § 3-415(b). Also termed indorsement without recourse. See WITHOUT RECOURSE. Bills and Notes restricted indorsement. See conditional indorsement. restrictive indorsement. (18c) An indorsement that includes a condition (e.g., "pay Josefina Cardoza only if she has worked 8 full hours on April 13") or any other language restricting further negotiation (e.g., "for deposit only"). Also termed collection indorse­ ment. See conditional indorsement. [Cases: Bills and Notes C;=> 190, 199, 290.J special indorsement. (18c) An indorsement that speci­ fies the person to receive payment or to whom the goods named by the document must be delivered. UCC § 3-205(a). Also termed indorsement in full; full indorsement. C£. cDrlditional indorsement. [Cases: Bills and Notes 289.] trust indorsement. (1945) An indorsement stating that the payee becomes a trustee for a third person (e.g., "pay Erin Ray in trust for Kaitlin Ray"); a restrictive indorsement that limits the instrument to the use of the indorser or another person. unauthorized indorsement. (1840) An indorsement made without authority, such as a forged indorse­ ment. [Cases: Bills and Notes C;=>239, 279.] unqualified indorsement. (1839) An indorsement that does not limit the indorser's liability on the paper.• It does not, for example, include the phrase "without recourse." [Cases: Bills and Notes C;=>281, 287, 293.] unrestrictive indorsement. (1844) An indorsement that includes no condition or language restricting negotia­ tion. - Also termed unrestricted indorsement. [Cases: Bills and Notes (;=) 190. 199, 290.] ACCOMMODATION PARTY.

indorser. (18c) A person who transfers a negotiable instrument by indorsement; speci£., one who signs a negotiable instrument other than as maker, drawer, or acceptor. - Also spelled endorser. accommodation indorser. (1820) An indorser who acts as surety for another person. in dote aestimata (in doh-tee es-ti-may-t;}). [Latin] Roman & civil law. When the dowry was valued .• When the dowry had been valued, the husband owed a sum of money representing the value and could dispose of the specific items of which the dowry was composed. in dubio (in d[y]oo-bee-oh), adv. & adj. [Latin] In doubt. induced abortion. See ABORTION.

inducement, n. (15c) l. The act or process of enticing or persuading another person to take a certain course of action. See fraud in the inducement under PRAUD. active inducement. The act of intentionally causing a third party to infringe a valid patent. - Active induce­ ment requires proof of (1) an actual intent to cause the patent infringement and (2) knowledge of the patent. [Cases: Patents c;::::,259 (1).] 2. Contracts. The benefit or advantage that causes a promisor to enter into a contract. 3. Criminal law. An enticement or urging of another person to commit a crime. 4. The preliminary statement in a pleading; esp., in an action for defamation, the plaintiff's allega­ tion that extrinsic facts gave a defamatory meaning to a statement that is not defamatory on its face, or, in a criminal indictment, a statement of preliminary facts necessary to show the criminal character of the alleged offense. Cf. INNUENDO (2); COLLOQUIUM. [Cases: Libel and Slander c;::::,81.] - induce, vb. inducement ofbreach ofcontract. See TORTIOUS INTER­ FERENCE WITH CONTRACTUAL RELATIONS.

induciae legales (in-d[y]oo-shee-ee l~-gay-leez). [Latin] Civil & Scots law. The days allowed after summons for a defendant to appear in court. inducing infringement. See infringement in the induce­ ment under INFRINGEMENT. induct, vb. (14c) 1. To put into possession of (something, such as an office or benefice). 2. To admit as a member. 3. To enroll (a person) for military service. [Cases: Armed Services c;::::,20.10(2).] inductio (in-d3k-shee-oh), n. [Latin] Roman law. The act of erasing a writing or part of it, as when a testator struck a legacy from a will. PI. inductiones (in-d~k­ shee-oh-neez). induction. (14c) 1. The act or process of initiating . 2. The act or process of reasoning from specific instances to general propositions . Cf. DEDUCTION (4). indult (in-d.dt). Eccles. law. A dispensation granted by the Pope to do or obtain something contrary to canon law. - Historically, induits were often used for politi­ cal ends. An indult granted to a sovereign empowered the recipient to present an ecclesiastical benefice, usu. without papal interference. Less exalted bodies, such as the parliament of Paris and the college of cardinals, were sometimes granted similar privileges. - Also termed indulto. indulto (in-d;}l-toh). [Spanish] 1. A pardon or amnesty. 2. Hist. A duty paid on imported goods to the Spanish or Portuguese Crown. in duplo (in d[y]oo-ploh), adv. & adj. [Law Latin] Hist. In double. - This term appeared in phrases such as damna in duplo ("double damages"). - Also termed (in Roman law) in duplum.

in duriorem sortem (in d[y]uur-ee-or-am

sor-t~m).

[Latin] Civil law. To the debt that it was the debtor's interest to have first discharged. _ The phrase appeared in reference to a debt that bound the debtor most quickly or to which a penalty was imposed. industrial design. Patents. The shape, configuration, pattern, or ornament applied to a finished article of manufacture, often to distinguish the product's appear­ ance. _ A design patent may be issued to protect the product's characteristic appearance. [Cases: Patents c;::::, 15.] industrial-development bond. See BOND (3). industrial disease. See OCCUPATIONAL DISEASE. industrial espionage. See ESPIONAGE. Industrial Espionage Act. See ECONOMIC ESPIONAGE ACT.

industrial goods. See capital goods under GOODS. industrial insurance. See industrial life insurance under LIFE INSURANCE.

industrial law. See LABOR LAW. industrial life insurance. See LIFE INSURANCE. industrial property. Intellectual property. Patented goods, industrial deSigns, trademarks, and copyrights that a business owns and may exclude others from using.• Employed in the Paris Convention, the term was not defined, but the treaty states that it is to be construed broadly. industrial relations. All dealings and relationships between an employer and its employees, including collective bargaining about issues such as safety and benefits. industrial-revenue bond. See industrial-development bond under BOND (3). industrial union. See UNION.

industry. (15c) 1. Diligence in the performance ofa task.

2. Systematic labor for some useful purpose; esp., work in manufacturing or production. 3. A particular form or branch of productive labor; an aggregate of enter­ prises employing similar production and marketing facilities to produce items having markedly similar characteristics. industry-wide liability. See enterprise liability (1) under LIABILITY.

indutiae (in-d[y]oo-shee-ee), n. [Latin]!. Roman & int'l law. A truce or cessation of hostilities; an armistice. 2. Roman & civil law. A delay allowed for performing an obligation or other legal business. 3. Maritime law. A period of 20 days in which a bottomry-bond debtor may unload the ship's cargo and pay the bond. - Also spelled induciae. in eadem causa (in ee-ay-dam kaw-za), adv. [Latin] Hist. In the same cause; in the same state or condition. inebriate (in-ee-bree-~t), n. (18c) Archaic. An intoxicated person; esp., a habitual drunkard. [Cases: Chemical Dependents C=> 1.]

inebriated

inebriated (in-ee-bree-ay-tid), adj. (15c) Drunk; intoxi­ cated. ineffective assistance of counsel. See ASSISTANCE OF COUNSEL. ineffective revocation. See DEPENDENT RELATIVE REVO­ CATION. Ineligibility Clause. The clause of the U.S. Constitution that prohibits a member of Congress from accepting an appointment to an executive office that was created, or the compensation for which was increased, during the member's service in Congress. D.S. Const. art. I, § 6. Officers and Publk Employees ineligible, adj. (18c) (Of a person) legally disqualified to serve in office. [Cases: Officers and Publk Employees ineligibility, n. in emulationem vicini (in em-Yl1.] infra jurisdictionem (in-fr;) joor-is-dik-shee-oh-n;!m), adv. & adj. [Law LatinJ Within the jurisdiction. infra praesidia (in-fr;! pr;!-sid-ee-;!). [Latin "within the defenses"] Rist. The international-law doctrine that someone who captures goods will be considered the owner of the goods if they are brought completely within the captor's power.• This term is a corruption of the Roman-law term intra praesidia, which referred to goods or persons taken by an enemy during war. Under the principle of postliminium, the captured person's rights or goods were restored to prewar status when the captured person returned. See POSTLIMINIUM. "In war, when those who are our enemies have captured someone on our side and have taken him into their own lines [intra praesidia]; for if during the same war he returns he has postliminium, that is, all his rights are restored to him just as if he had not been captured by the enemy." Digest ofJustinian 49.15.5.1 (Pomponius, Quintus Mucius 37).

infrastructure. The underlying framework of a system; esp., public services and facilities (such as highways, schools, bridges, sewers, and water systems) needed to support commerce as well as economic and residential development. in fraudem creditorum (in fraw-d 1566.J copyright infringement. The act of violating any of a copyright owner's exclusive rights granted by the federal Copyright Act, 17 USCA §§ 106,602.• A copyright owner has several exclusive rights in

copyrighted works, including the rights (1) to repro­ duce the work, (2) to prepare derivative works based on the work, (3) to distribute copies of the work, (4) for certain kinds of works, to perform the work publicly, (5) for certain kinds ofworks, to display the work publicly, (6) for sound recordings, to perform the work publicly, and (7) to import into the United States copies acquired elsewhere. [Cases: Copyrights and Intellectual Property (::;'53.] criminal infringement. The statutory criminal offense ofeither (1) willfully infringing a copyright to obtain a commercial advantage or financial gain (17 USCA § 506; 18 USCA § 2319), or (2) trafficking in goods or services that bear a counterfeit mark (18 USCA § 2320).• Under the second category, the law imposes criminal penalties if the counterfeit mark is (1) iden­ tical with, or substantially indistinguishable from, a mark registered on the Principal Register of the U.S. Patent and Trademark Office, and (2) likely to confuse or deceive the public. [Cases: Copyrights and Intellec­ tual Property (;:::c:>70; Trademarks (;::::::c 1786, 1787.1 direct infringement. 1. Patents. The act of making, using, selling, offering for sale, or importing into the United States, without the patentee's permission, a product that is covered by the claims ofa valid patent. 35 USCA § 271(a). [Cases: Patents (>226.]2. Trade­ marks. The use of a mark in trade when that use causes a likelihood of confusion about the source of goods or services already identified by a similar mark. 3. Copyright. The unauthorized copying, distributing, or displaying of - or the adapting of a derivative work from - a copyrighted work. Cf. contributory infringe­ ment; infringement in the inducement. domain-name infringement. Infringement of another's trademark or servicemark by the use of a confUSingly similar Internet domain name. [Cases: Trademarks (> 1116, 1435.] infringement by sale. Patents. The unauthorized sale, resale, or offer of a possessory interest in a patented invention. Also termed infringement through sale. [Cases: Patents (>226.J infringement in the inducement. Patents. The act of actively and knOWingly aiding and abetting direct infringement by another person .• Although some­ times used in copyright and trademark law to mean contributory infringement, the term is usu. reserved for the patent context. - Also termed inducing infringement. Cf. direct infringement. [Cases: Patents (;:~'259.J

innocent infringement. The act of Violating an intel­ lectual-property right without knowledge or aware­ ness that the act constitutes infringement.• An innocent infringer may, in limited circumstances, escape liability for some or all of the damages. In the copyright context, damages may be limited if (1) the infringer was misled by the lack of a copyright notice on an authorized copy of the copyrighted work, dis­ tributed under the owner's authority before March 1989 (the effective date of the Berne Convention

infringement by sale

Implementation Act of 1988), and (2) the infring­ ing act occurred before the infringer received actual notice of the copyright. 17 USC A § 405(b).ln the trademark context, publishers and distributors of paid advertisements who innocently infringe a mark have no liability for damages. 15 USCA § 1114. In both contexts, the innocent infringer is immunized only from an award of monetary damages, not from injunctive relief. Cf. willful infringement. [Cases: Copyrights and Intellectual Property C=>52.] literal infringement. Patents. Infringement in which every element and every limitation of a patent claim is present, exactly, in the accused product or process. Cf. DOCTRINE OF EQUIVALENTS. lCases: Patents 226.] nonliteral infringement. See DOCTRINE OF EQUIVA­ LENTS.

patent infringement. The unauthorized making, using, offering to sell, selling, or importing into the United States of any patented invention. 35 USCA § 271{a). [Cases: Patents "In determining whether an accused device or composi­ tion infringes a valid patent, resort must be had in the first instance to the words of the claim. If accused matter falls clearly within the claim, infringement is made out and that is the end of it." Craver Tank & Mfg. Co. v. Linde Air Prods. Co., 339 U.S. 605, 607, 70 S.Ct. 854, 855 (1950) Uackson, J.).

trademark infringement. The unauthorized use of a trademark - or of a confusingly similar name, word, symbol, or any combination ofthese - in connection with the same or related goods or services and in a manner that is likely to cause confusion, deception, or mistake about the source of the goods or services. See LIKELIHOOD-OF-CONFUSION TEST. [Cases: Trade­ marks C::> 1421.] vicarious infringement. A person's liability for an infringing act of someone else, even though the person has not directly committed an act of infringe­ ment.• For example, a concert theater can be vicari­ ously liable for an infringing performance of a hired band. [Cases: Patents C-:287(2).j willful infringement. An intentional and deliber­ ate infringement of another person's intellectual property. Cf. innocent infringement. [Cases: Patents C=>227.] infringement by sale. See INFRINGEMENT. infringement opinion. See OPINION (2). infringement search. Patents. A patent search aimed at discovering whether a product or method infringes any in-force patent .• An infringement search is usu. limited to the political territory where the patent is to be relied on. Also termed clear-ta-use search; free­ dam-to-operate search; PTO search. Cf. PATE:'oITABILITY SEARCH; VALIDITY SEARCH.

infringement test. Patents. A means of determining whether a patent claim is dependent by asking if the claim would always be infringed if the independent

852

claim on which it rests were infringed .• Since a depen­ dent claim must incorporate all the elements of the independent claim, an infringement of the independent claim must also be an infringement of the dependent claim. [Cases: Patents C=> 165(5).] infringement through sale. See infringement by sale under INFRINGEMENT. infringer. (l6c) A person who interferes with one of the exclusive rights of a patent, copyright, or trade­ mark owner. See INFRINGEMENT. [Cases: Copyrights and Intellectual Property (;=)77; Patents C~::>287(1); Trademarks C=> 1564.] in fructu (in frak-t[y]oo). [Latin] Hist. Among the fruit. • A bona fide possessor owned the fruits of the subject possessed but not the subject itself because the subject was not infructu. For example, a person who possessed but did not own a goat was entitled to the goat's milk, wool, and offspring, but not the goat's meat. in full. Constituting the whole or complete amount <payment in full>. in fullUfe. (Of a person) alive in fact and in law; neither naturally nor civilly dead. in futuro (in fYd-tyoor-oh), adv. [Latin] In the future. Cf. IN PRAESENTI. in generali passagio (in jen-..-ray-h pd-say-jee-oh), adv. [Law Latin] Hist. In the general passage (to the holy land with a company of Crusaders).• This type of pil­ grimage excused an absence from court during the Crusades. Cf. SIMPLEX PASSAGIUM. in genere (in jen-dr-ee). [Latin "in kind"] Belonging to the same class, but not identical. ingenuitas (in-jd-n[y]oo-d-tas), n. [Latin] Roman law. The condition or status of a free-born person. ingenuitas regni (in-ja-n[y]oo-..-tas reg-nIl. [Law Latin] Hist. The freemen, yeomanry, or commonalty of the kingdom.• This term was occasionally applied to the nobility. ingenuus (in-jen-yoo-..s), n. [Latin] Roman law. A free­ born person .• This term, denoting freeborn persons, was commonly opposed to libertini (people born into slavery and later emancipated). Cf. LATINI IUNIANI; SERVUS.

in globo (in gloh-boh), adv. [Latin "in a mass"] As an undivided whole rather than separately <settlement paid in globo to the three defendants>. ingratitude, n. Civil law. Lack of appreciation for a generous or kind act, esp. for a gift received .• Under Louisiana law, a gift may be reclaimed on grounds of ingratitude if the recipient mistreats the giver by, for example, attempting to murder the giver or refusing to provide the giver with needed food. La. Civ. Code art. 1560. [Cases: Gifts ingratus (in-gray-tds), adj. [Latin] Roman law. (Of a person) ungrateful; (of conduct) marked by ingratitude. • Ungrateful acts or words (such as spiteful comments

inheritance

853

from a freedman toward a former master) could form the basis for a return to a prior inferior status. in gremio juris (in gree-mee-oh joor-is), adv. & adj. [Law Latin] Civil & Scots law. In the bosom of the right .• lhis phrase describes a clause formerly inserted in an instrument to bind holders to its terms. in gremio legis (in gree-mee-oh lee-jis), adv. & adj. [Law Latin] In the bosom of the law.• This is a figurative expression for something that is under the protection of the law, such as a land title that is in abeyance. ingress (in-gres). (l5c) l.lne act of entering. 2. The right or ability to enter; access. Cf. EGRESS. ingress, egress, and regress. (17c) The right of a lessee to enter, leave, and reenter the land in question. ingress us (in-gres-Js). [Latin "ingress, entry"] Hist. The fee paid by an heir to a feudal lord to enter the estate of a decedent. in gross. 1. Undivided; still in one large mass. - Also termed en gros; en grosse. 2. (Of a servitude) personal as distinguished from appurtenant to land. See easement in gross under EASEMENT. ingross, vb. See ENGROSS. ingrossator (in-groh-say-tJr). [Law Latin] Hist. An engrosser; a clerk who writes records or instruments on parchment.• The Engrosser of the Great Roll, for example, was known as the lngrossator Magni Rotuli. See CLERK OF THE PIPE. inhabit, vb. (l4c) To dwell in; to occupy permanently or habitually as a residence. in hac parte (in hak pahr-tee). [Latin] On this part or side. in haec verba (in heek v65.] inherent authority. See AUTHORITY (1). inherent condition. See CONDITION (2). inherent covenant. See COVENANT (1). inherent defect. See hidden defect under DEFECT. inherently dangerous. See DANGEROUS. inherently dangerous activity. An activity that can be carried out only by the exercise of special skill and care and that involves a grave risk of serious harm if done unskillfully or carelessly. inherently dangerous work. See WORK (1). inhereut power. See POWER (3). inherent-powers doctrine. 'The principle that allows courts to deal with diverse matters over which they are thought to have intrinsic authority, such as (1) procedural rulemaking, (2) internal budgeting of the courts, (3) regulating the practice oflaw; and (4) general judicial housekeeping.• The power is based on interpretations of art. I, § 8, cl. 18 of the Constitution. [Cases: Courts C-~ 1.] inherent right. See inalienable right under RIGHT. inherit, vb. (l4c) 1. To receive (property) from an ancestor under the laws of intestate succession upon the ancestor's death. [Cases: Descent and Distribution 2. To receive (property) as a bequest or devise. inheritable, adj. See HERITABLE. inheritable blood. See heritable blood under BLOOD. inheritable obligation. See heritable obligation under OBLIGATION.

inheritable security. See heritable security under SECURITY.

inheritance. (14c) L Property received from an ancestor under the laws of intestacy. [Cases: Descent and Distri­ bution 1, 8.] 2. Property that a person receives by bequest or devise. dual inheritance. An adopted child's intestate inheri­ tance through both his adopted family and his natural parent. _ The problem of dual inheritance occurs only if a relative of the birth parent adopts the child. For instance, if a child's mother dies and the maternal grandparents adopt the grandchild, and if a grand­ parent then dies intestate, the child qualifies for two separate shares - one as a child and the other as a grandchild. In some jurisdictions, by statute, such a child is allowed to inherit only the adopted child's share. Under the Uniform Probate Code, the child takes the larger of the two shares. [Cases: Adoption (;:::>21.

inheritance tax

several inheritance. An inheritance that descends to two persons severally, as by moieties. shifting inheritance. Under intestacy laws, an inheri­ tance that is transferred from an heir who was living when the intestate died to an afterborn heir who is more closely related to the intestate. [Cases; Descent and Distribution universal inheritance. A system by which an intes­ tate's estate escheats to the state only if the decedent leaves no surviving relatives, no matter how distant. • Universal inheritance has been almost universally abandoned in Anglo-American jurisdictions. See UNIVERSAl.-INHERITANCE RUl.E. inheritance tax. See TAX. inheritor (in-hair-i-tar), n. (ISc) A person who inherits; HEIR. inheritrix (in-hair-i-triks), n. Archaic. A female heir; HEIRESS. inhibition (in-hi-bish-an), n. 1. Eccles. law. A writ issued by a superior ecclesiastical court, forbidding a judge from proceeding in a pending case. 2. Eccles. law. An order issuing from an ecclesiastical court, prohibiting a member of the clergy from taking office or perform­ ing an unlawful action. 3. Hist. A writ of prohibition. 4. Scots law. An order issued by the Court of Session to prohibit a debtor from encumbering or alienating the debtor's heritable property to the prejudice of a creditor. See EX CAPITE INHlBITIONIS; (in senses 3 & 4) PROHI­ BITION (2). in hoc (in hok), adv. [Latin] In this; in respect to this. in hoc statu (in hok stay-t[yJoo). [Latin] Hist. In this position. inhonestus (in-h;;-nes-t;;s), adj. [Latin] Roman law. 1. (Of a person) of ill repute. 2. (Of conduct) morally shameful. in-house counsel. See COUNSEl.. inhuman treatment. Family law. Physical or mental cruelty so severe that it endangers life or health.• Inhuman treatment is usu. grounds for divorce. See CRUEl.TY. [Cases: Divorce (;:=>27(1,3).] in hypothesi (in hi-pahth-55.] temporary injury. An injury that may be abated or discontinued at any time by either the injured party or the wrongdoer. Cf. permanent injury. [Cases: Damages 109.]

willful and malicious injury. Bankruptcy. Under the statutory exception to discharge, damage to another entity (such as a creditor) caused by a debtor inten­ tionally performing a wrongful act - without just cause or excuse that the debtor knew was certain or substantially certain to cause injury. 11 USCA § 523(a)(6). [Cases: BankruptcyG-~3374.] injury-in-fact trigger. See ACTUAL-INTURY TRIGGER. injustice. (15c) l. An unjust state of affairs; unfairness. 2. An unjust act. in jus vocare (in jas voh-kair~ee), vb. [Latin] Roman law. To summon a defendant to court. in kind, adv. (17c) 1. In goods or services rather than money <payment in cash or in kind>. 2. In a similar way; with an equivalent of what has been offered or received . - in-kind, adj. . INL. abbr. BUREAU OF I:NTERNATIONAL NARCOTICS AND LAW ENFORCEMENT.

inlagare (in~la-gair-ee), vb. [Law Latin] Hist. To restore (an outlaw) to the protection of the law. Cf. UTLAGARE.

inlagation (in-la-gay-shall), n. [Law Latin] Hist. The act of restoring an outlaw to the protection of the law; inlawry. Cf. UTLAGATION. inlagh (in-law). Hist. A person within the protection of the law, in contrast to an outlaw. Cf, UTLAGH. inland. (15c) 1. The interior part of a country or region, away from the coast or border. 2. Hist. The portion of a feudal estate lying closest to the lord's manor and dedicated to the support of the lord's family. - Also termed (in sense 2) inlantal. Cf. UTLAND. inland bill of exchange. See domestic bill (2) under BILL (6).

inland draft. See DRAFT. inland marine insurance. See INSURANCE. inland revenue. See I:NTERNAL REVENUE. inland trade. See TRADE. inland waters. See INTERNAL WATERS. inlantal (in-Ian-tal). Hist. See INLAND (2). - Also spelled inlantale. in law. (15c) Existing in law or by force oflaw; in the contemplation of the law. Cf. IN FACT. in-law, n. (1894) A relative by marriage. inlaw, vb. Archaic. To place (an offender) under the pro­ tection of the law. Cf. OUTLAW (1). 'The outlaw's life is insecure .... If the king inlaws him, he comes back into the world like a new-born babe, quasi modo genius, capable indeed of acquiring new rights, but unable to assert any of those that he had before his outlawry. An annihilation of the outlawry would have a different operation, but the inlawed outlaw is not the old person restored to legal life; he is a new person." 1 Freder· ick Pollock & Frederic William Maitland, History of English Law Before the Time of Edward 1477 (2d ed. 1898),

inlawry inlawry. The restoration of an outlawed person's rights and protections under the law. See INLAGATION. in lecto aegritudinis (in lek-toh ee-gri-t[y]oo-di-nis). [Law Latin] Scots law. On a bed of sickness. - 1he phrase appeared in reference either to the deathbed or to periods of illness that excused a person from fulfill­ ing an obligation. See LIEGE POUSTI. in lecto mortali (in lek-toh mor-tay-lr), adv. & adj. [Latin] On the deathbed. in legal custody. See IN CUSTODIA LEGIS. in liberam baroniam (in Iib-;)f-;)m bd-roh-nee-;)m). [Law Latin] Hist. Into a free barony. "In former times, many persons holding certain feudal rights from the Crown were called barons, but in the strict legal sense, the title was only due to him whose lands had been erected or confirmed by the king in liberam baroniam. The advantages conferred by the right of barony were considerable. Such a right conferred on the baron both civil and criminal jurisdiction within his barony; and under the clause of union contained in his charter, he was enabled to take infeftment in the whole lands and rights of the barony in, what was at that time, an easy and inex, pensive mode." John Trayner, Trayner's Latin Maxims 264 (4th ed. 1894).

in liberam elemosinam (in lib-dr-;)m el-d-md-SI-n;)m). [Latin "in free alms"] Hist. Land given away for a chari­ table purpose; land given away to be held in frankal­ moin. - Also spelled in liberam eleemosinam. Also termed in libera elemosina. See FRANKALMOIN. in liberam regalitatem (in lib-;)r-;)m ri-gal-;)-tay-t;)m). [Law Latin] Hist. Into a free regality. - The phrase appeared in reference to feudal land grants that were made by the Crown and that gave the grantees jurisdic­ tion over criminal and civil matters in their territory equivalent to that of the Crown. in libero sochagio (in lib-;)r-oh s;)-kay-jee-oh), adv. [Law Latin] In free socage. See SOCAGE. in lieu of. (Be) Instead of or in place of; in exchange or return for . in lieu tax. See TAX. in limine (in lim-a-nee), adv. [Latin "at the outset"] (lSc) Preliminarily; presented to only the judge, before or during trial . See MOTION IN LIMINE. [Cases: Criminal Law (:=:>632(4); Federal Civil Procedure (>927.5; Pretrial Procedure in-limine, adj. (Of a motion or order) raised prelimi­ narily, esp. because of an issue about the admissibility of evidence believed by the movant to be prejudicial . in linea recta {in lin-ee-;) rek-ta), [Latin] Hist. In the direct line (of succession). in litem (in h-tem or -tam), adv. [Latin] For a suit; to the suit. See AD LITEM. in loco (in loh-koh). [Latin] In the place of. in loco parentis (in loh-koh pa-ren-tis), adv. & adj. [Latin "in the place of a parent"] (1818) Of, relating to, or

858

acting as a temporary guardian or caretaker of a child, taking on all or some ofthe responsibilities of a parent. - The Supreme Court has recognized that during the school day, a teacher or administrator may act in loco parentis. See Vernonia Sch. Dist. v. Acton, 515 U.S. 646, 115 S.Ct. 2386 (1995). See PERSON IN LOCO PARENTIS. [Cases: Child Custody Child Support G= 31; Parent and Child (:=:> 15.] in loco parentis, n. Supervision of a young adult by an administrative body such as a university. [Cases: Schools (:=:> 169.] in lucro captando (in loo-kroh kap-tan-doh). [Latin] Hist. In endeavoring to gain an advantage. in majorem cautelam (in md-jor-;)m kaw-tee-I;)m), adv. [Latin] Hist. For a greater security. in majorem evidentiam (in m;)-jor-;)m ev-;)-den­ shee-am). [Law Latin] Hist. For more certain proof; for more sure evidence. in mala fide (in mal-;) fI-dee). [Latin] Hist. In bad faith. "A possessor in mala fide is one who holds possession of a subject, in the know/edge that it is not his own, on a title which he knows, or has reasonable ground for believing to be a bad one." John Trayner, Trayner's Latin Maxims 266 (4th ed. 1894).

in mancipio (in man-sip-ee-oh), adj. [Latin] Roman law. In a state ofcivil bondage .• This status applied to a son whose father was sued in a noxal action and settled the claim by handing over his son. See NOXAL ACTION (I). in manu mortua. See IN MORTUA MANU. in-marriage. See MARRIAGE (1). inmate. (16c) 1. A person confined in a prison, hospital, or similar institution. [Cases: Prisons 110.] 2. Archaic. A person living inside a place; one who lives with others in a dwelling. in medias res (in mee-dee-;)s reez or in me-dee-ahs rays), adv. [Latin1Into the middle of things; without preface or introduction. in medio (in mee-dee-oh). [Law Latin] Scots law. In the middle; intermediate.• The phrase appeared in refer­ ence to a fund in controversy. in meditatione fugae (in med-i-tay-shee-oh-nee fry] oo-jee). [Law Latin] Scots law. Meditating flight; con­ templating leaving the country.• Formerly, a debtor could be detained under a fugae warrant if the debtor had sufficient debt to warrant imprisonment, and if the debtor was attempting to leave the country. This type of warrant became obsolete when imprisonment for debt was abolished. in mercy, adv. (l7c) At a judge's discretion concern­ ing punishment. _ A judgment formerly noted (using the Law Latin phrase in misericordia) which litigant lost by stating that the unsuccessful party was in the court's mercy. A plaintiffheld in mercy for a false claim, for example, was said to be in misericordia pro falso clamore suo.

859

innocence

in misericordia (in miz-a-ri-kor-dee-d). [Law LatinJ See IN MERCY. in mitiori sensu (in mish-ee-or-I sens-[y]oo), adv. [Law Latin] In a milder or more favorable sense.• This phrase appeared as part of the former rule applied in slander actions. A word capable oftwo meanings would be given the one more favorable to the defendant. Cf. INNOCENT-CONSTRUCTION RULE. [Cases; Libel and Slander C:::> 19.J 'Within half a century of its first appearance, the action for words had become part of the everyday bUSiness of the common-law courts, in particular the King's Bench. In the early days there were often more slander cases in the rolls than assumpsit . ... Thejudges apparently came to regret this aspect of their increased jurisdiction, especially since juries frequently awarded sums of money quite dispropor· tionate to the harm and to the ability of the wrongdoer to pay .... [Tlhe principal effect of the judicial reaction was that a spirit of repression began to manifest itself .... The ... most effective attack was launched in the 15705, when the courts began the policy of construing ambiguous or doubtful words in the milder sense (in mitiori sensu) so that they would not be actionable." J.H. Baker, An Introduc· tion to English Legal History 500-01 (3d ed. 1990).

in modum adminiculi (in moh-dam ad-mi-nik-y;:!-lI). [Law Latin] Hist. As corroborating evidence. in modum assisae (in moh-ddm d-sl-zee), adv. [Law Latin] In the manner or form of an assize. See ASSIZE. in modum juratae (in moh-ddm juu-ray-tee), adv. [Law Latin] In the manner or form of a jury. in modum poenae (in moh-ddm pee-nee). [Latin] Hist. By way of penalty.• The phrase appeared in reference to the basis for charging interest. in modum probationis (in moh-ddm proh-bay-shee-oh­ nis). [Latin] Hist. In the form of proof. _1he phrase appeared in reference to documents that a party provided to support a claim. in modum simplicis querelae (in moh-ddm sim-pl401, 462.J legal innocence. (1813) Criminal law. The absence of one or more procedural or legal bases to support the sentence given to a defendant. - In the context of a petition for writ of habeas corpus or other attack on the sentence, legal innocence is often contrasted with actual innocence. Actual innocence, which focuses on the facts underlying the sentence, can sometimes be used to obtain relief from the death penalty based on trial-court errors that were not objected to at trial, even if the petitioner cannot meet the elements of the cause-and-prejudice rule. But legal innocence, which focuses on the applicable law and procedure, is not as readily available. Inadvertence or a poor trial strategy resulting in the defendant's failure to assert an estab­ lished legal principle will not ordinarily be sufficient to satisfy the cause-and-prejudice rule or to establish the right to an exception from that rule. See CAUSE­

innocent AND-PREJUDICE RULE. [Cases: Habeas Corpus 401.] innocent, adj. (14c) Free from guilt; free from legal fault. See NOT GUfLTY (2). innocent agent. See AGENT (2). innocent-constrnction rule. The doctrine that an allegedly libelous statement will be given an innocu­ ous interpretation if the statement is either ambiguous or harmless. Cf. IN MITIORI SENSU. [Cases: Libel and Slander innocent conversion. See technical conversion under CONVERSION (2). innocent converter. See CONVERTER. innocent conveyance. See CONVEYANCE. innocent homicide. See HOMICIDE. innocent infringement. See INFRINGEMENT. innocent junior user. See JUNIOR USER. innocent misrepresentation. See MISREPRESENTA­ TION. innocent-owner defense. See DEFENSE (1). innocent party. See PARTY (2). innocent passage. Int' llaw. The right ofa foreign ship to pass through a country's territorial waters; the right of a foreign vessel to travel through a country's maritime belt without paying a toll. - The right of innocent passage is guaranteed in Article 17 of the United Nations Convention on the Law of the Sea. Passage is considered innocent as long as it is not prejudicial to the peace, good order, and security of the coastal country. - Also termed right of innocent passage. Cf. TRANSIT PASSAGE. [Cases: International Law (::::>5.] 'The term 'innocent passage' accurately denotes the nature of the right as well as its limitations. In the first place it is a right of 'passage,' that is to say, a right to use the waters as a thoroughfare between two points outside them; a ship proceeding through the maritime belt to a port of the coastal state would not be exercising a right of passage. In the second place the passage must be 'innocent'; a ship exercising the right must respect the local regulations as to navigation, pilotage, and the like, and, of course, it must not do any act which might disturb the tranquillity of the coastal state." J.L. Brierly, The Law of Nations 188-89 (5th ed. 1955).

innocent purchaser. See bona fide purchaser under PUR­ CHASER (1). innocent purchaser for value. See bona fide purchaser under PURCHASER (1). innocent spouse. See SPOUSE. innocent trespass. See TRESPASS. innocent trespasser. See TRESPASSER. innocuae utilitatis (i-nok-yoo-[w]ee yoo-til-a-tay-tis). [Latin "useful without harming"] Hist. An act that is beneficial to one person and harmful to no one. Inn of Chancery. Hist. Any of nine collegiate houses where students studied either to gain entry into an Inn ofCourt or to learn how to frame writs in order to serve

860

in the chancery courts. - Over time, the Inns Clem­ ent's, Clifford'~, Lyon's, Furnival's, Thavies', Symond's, Barnard's, Staples', and the New Inn - became little more than dining dubs, and never exercised control over their members as the Inns of Court did. The Inns of Chancery were all dissolved in the 19th century. Cf. INN OF COURT. Inn of Court. 1. Any of four autonomous institutions, one or more of which English barristers must join to receive their training and of which they remain members for life: The Honourable Societies ofLincoln's Inn, the Middle Temple, the Inner Temple, and Gray's Inn. - These powerful bodies examine candidates for the Bar, "call" them to the Bar, and award the degree of barrister. "It is impossible to fix with certainty the period when the professors and students of the common law first began to associate themselves together as a society, and form them­ selves into collegiate order; or to assign an exact date to the foundation of the Inns of Court, the original institution of which nowhere precisely appears. .. After the fixing of the Court of Common Pleas by Magna Charta, the practitio­ ners of the municipal law took up their residence in houses between the king's courts at Westminster and the city of London - forming then one community; and before the end of the reign of Edward II, they appear to have divided themselves into separate inns or colleges, at Temple Bar, Lincoln's Inn, and Gray's Inn." Robert H. Pearce, A Guide to the Inns of Court and Chancery 1-2 (1855).

2. (pl.) In the United States, an organization (formally named the American Inns of Court Foundation) with more than 100 local chapters, whose members include judges, practicing attorneys, law professors, and law students. - Through monthly meetings, the chapters emphasize practice skills, professionalism, and ethics, and provide mentors to train students and young lawyers in the finer pOints of good legal practice. innominate (i-nom-d-nat), adj. (17c) Civil law. Unclassi­ fied; having no special name or designation. See innom­ inate contract under CO:-
innovata lite dependente (in-oh-vay-ta II-tee dee-pen­ den-tee). [Law Latin] Hist. Innovations during the pendency of a suit. -lhe phrase appeared in reference to the interference with something that is the subject of a lawsuit. See PENDENTE LITE. innovation. Scots law. See "OVATION. innoxiare (i-nok-shee-air-ee), vb. [Law Latin] Hist. To purge (a person) of fault. in nubibus (in n[yJoo-bi-bas), adv. & adj. [Law Latin] In the clouds. _ An expression for something that is under the protection of the law. in nudis finibus contractus (in n[y]oo-dis fin-a-bas bn-trak-tas). [Law Latin] Hist. In the bare terms of a contract. in nudis terminis (in n[y]oo-dis tilr-ma-nis). [Law Latin "with bare limits"] Hist. In its bare terms. - The phrase appeared in reference to the simple terms of an instru­ ment. See NUDUM PACTUM. innuendo (in-yoo-en-doh). [Latin "by hinting") (17c) 1. An oblique remark or indirect suggestion, usu. of a derogatory nature. 2. An explanatory word or passage inserted parenthetically into a legal document. - In criminal law, an innuendo is a statement in an indict­ ment showing the application or meaning of matter previously expressed, the meaning of which would not otherwise be clear. In the law of defamation, an innuendo is the plaintiff's explanation of a state­ ment's defamatory meaning when that meaning is not apparent from the statement's face. For example, the innuendo of the statement "David burned down his house" can be shown by pleading that the statement was understood to mean that David was defrauding his insurance company (the fact that he had insured his house is pleaded and proved by inducement). Cf. INDUCEMENT (4); COLLOQUIUM. [Cases: Libel and Slander (::::>86.] "Innuendo (from innl/o, to nod or beckon with the head) is a word used in declarations and law pleadings, to ascertain a person or thing which was named before .... If a man say, that such a one had the pox, innuendo the French pox, this will not be admitted, because the French pox was not mentioned before, and the words shall be construed in a more favourable sense. But, if in discourse of the French pox, one say, that such a one had the pox, innuendo the French pox, this will be admitted to render that certain which was uncertain before." 2 Richard Burn, A New Law Dictionary 24 (l792). "It is not a true innuendo to repeat the obvious meaning of defamatory words in other language, or in an embroidered or exaggerated way. Otherwise an ingenious pleader could perplex the judge and jury and harry the defendant by ringing the changes on the same words, creating numerous different causes of action, each requiring a separate verdict. A true innuendo relies on a conjunction of the words used and some extrinsic fact. Thus it is defamatory in itself to say that a man's affairs are being investigated by the Fraud Squad: but the statement does not support the innuendo that those affairs are being carried on fraudu· lently. Conversely, the statement 'X is a good advertiser' is innocent in itself, but carries a libellous innuendo if pub· lished to persons who know the extrinsic fact that X is an eminent member of the Bar." R.F.v. Heuston, Salmond on the Lawo(Torts 149 (17th ed. 1977). [The example about

lawyers' advertising no longer has relevance to American law. Eds.]

in nullius bonis (in na-h-as boh-nis). See

NULLIUS IN

BONIS.

in nullo est erratum (in nal-oh est i-ray-tam), adj. [Law Latin "in nothing is there error"] Hist. Of or relating to a demurrer that denies any error and at once refers a question oflaw to the court. in obligatione (in ob-li-gay-shee-oh-nee). [Latin] Hist. Under an obligation. in odium (in oh-dee-60.28.] '''What is insider trading?' The term is probably best defined, to the extent any definition is adequate, as 'the purchase or sale of securities on the basis of material, non-pUblic infor· mation.' What counts as 'non-public information'? What non-pUblic information can be deemed 'material'? When is a trader who is in possession of material, non- public information trading 'on the baSis of' that information? Must the information be about the company whose securities are being purchased or sold? What characteristics establish 'insider' status sufficient to warrant legal proscriptions of trading? These are all questions that are derived from the definition of insider trading just offered ...." C. Edward Fletcher, Materials on the Law of Insider Trading 3 (1991). "A number of different parties may be subject to a variety of monetary penalties under the federal securities laws for engaging in illegal insider trading. These parties may include actual traders, their tippers, as well as broker· dealers and investment advisors (when they fail to take appropriate steps to prevent the insider trading violation(s) or fail to maintain and enforce policies and procedures reasonably designed to prevent the occurrence of such trading). Measures that may be ordered include (1) requir· ing the subject party to 'disgorge' the iII·gotten profits (or loss avoided) in an SEC enforcement action, (2) subjecting individuals to a maximum criminal fine of $1 million and 10 years imprisonment, and (3) in an SEC enforcement action, within a court's discretion, ordering the subject party to pay into the U.S. Treasury a treble damage penalty amount­ ing to three times the profit gained or loss avoided." Marc I. Steinberg, Understanding Securities Law 277-78 (2d ed. 1996).

insidiatio viarum (in-sid-ee-ay-shee-oh vI-air-Clm). [Latin "ambush on the highway"] Rist. The crime of waylaying someone along the roadway. See LATROCI­ NATION; HIGHWAYMAN.

insilium (in-sil-ee-Clm). (Law Latin] Hist. Pernicious advice or counsel. in simili materia (in sim-d-II ma-teer-ee-a), adv. & adj. (Law Latin] Of the same or a similar subject matter. insimul (in-sim-dl or in-si-mal), adv. [Latin] Together, jOintly. insimul computassent (in-sim-Cll or in-si-miJI kahm­ pyoo-tas-Clnt). [Law Latin "they accounted together"] Hist. A count in an assumpsit action asserting that the parties had reviewed their accounts and that the defen­ dant voluntarily agreed to pay the amount sought by the plaintiff.• This term derives from the initial words ofthe count.

inspeximus

867 insimul tenuit (in-sim-~l or in-si-mCll ten-yoo-it). [Law Latin "he held together"] Hist. A writ brought by a coparcener to recover a fee tail alienated by an earlier tenant; a type offormedon in the descender. See formedon in the descender under FORMEDON. insinuare (in-sin-yoo-air-ee), vb. [Latin] Roman & civil law. To register; to deposit (an instrument) with a public registry. insinuatio (in-sin-yoo-ay-shee-oh). [Law Latin) Hist. Information or suggestion.• This term sometimes appeared in the phrase ex insinuatione ("on the infor­ mation"), which is the precursor to the modern on irifor­ mation and belief See INFORMATION AND BELIEF. insinuation (in-sin-yoo-ay-shCln). Civil law. 1. 'The act of depositing (an instrument) with a public registry for recording. 2. A document that evidences a donation of property. insinuation of a will. Civil law. The first production of a will for probate. insist, vb. (Of a house in a bicameral legislature) to reaffirm (an amendment) that the other house has considered but in which it has not concurred, or to reaffirm nonconcurrence in an amendment from which the other house has not receded .• An insistence often results in a request for a conference. See CONCUR (4); CONFERENCE (2); RECEDE. - insistence, n. "When one house refuses to recede from its amendments, the bill is not thereby lost, because the house may vote to insist upon its amendments. A message is sent to the other house stating that the house has insisted upon its amendments and is usually accompanied by a request for conference. When one house insists upon its amendments, the other house may then insist upon its nonconcurrence in the amendments and request a conference or recede from its nonconcurrence and concur in the amendments, which would constitute a final passage of the bill with the amendments." National Conference of State legislatures. Mason's Manual of Legislative Proceaure § 768, at 556-57 (2000).

in solido (in sol-Cl-doh). [Latin "as a whole"] (Of an obli­ gation) creating joint and several liability.• The term is used in most civil-law jurisdictions, but no longer in Louisiana. - Also termed in solidum. See SOLIDARY. in solidum (in sol-d-ddm). See IN SOLIDO. in solo (in soh-Ioh), adv. & adj. [Latin] In the soil or ground. in solo alieno (in soh-loh ay-Iee-ee-noh or al-ee-), adv. & adj. [Latin] In another's ground. in solo proprio (in soh-Ioh proh-pree-oh), adv. & adj. (Latin] In one's own ground. in solutum (in sa-Ioo-tdm). [Latin] Hist. In payment. insolvency, n. (17c) 1. The condition of being unable to pay debts as they fall due or in the usual course of business. 2. The inability to pay debts as they mature. ­ Also termed failure to meet obligations;failing circum­ stances. See BANKRUPTCY (2). Cf. SOLVENCY. balance-sheet insolvency. Insolvency created when the debtor's liabilities exceed its assets .• Under some state laws, balance-sheet insolvency prevents a

corporation from making a distribution to its share­ holders. Also termed balance-sheet test. equity insolvency. Insolvency created when the debtor cannot meet its obligations as they fall due.• Under most state laws, equity insolvency prevents a corpora­ tion from making a distribution to its shareholders. insolvency law. A statute that provides relief to a debtor who lacks the means to pay creditors.• The term is sometimes used interchangeably with bankruptcy law because legislative drafting may not produce a bright­ line distinction. Also termed insolvent law. Cf. BANKRUPTCY LAW (2). insolvency proceeding. Archaic. A bankruptcy proceed­ ing to liquidate or rehabilitate an estate. See BANK­ RUPTCY (1). insolvent, adj. (16c) (Of a debtor) haVing liabilities that exceed the value ofassets; having stopped paying debts in the ordinary course of business or being unable to pay them as they fall due. insolvent, n. insolvent law. See INSOLVENCY LAW. in spe (in spee). [Latin] Hist. In hope. in specie (in spee-shee-ee or spee-shee). [Latin" in kind"] In the same or like form; IN KIND . inspectator. Archaic. A prosecutor, adversary, or inspec­ tor. inspectio corporis (in-spek-shee-oh kor-pdr-is). [Latin] Hist. An inspection of the person.• An inspectio corporis was an actual physical examination, the performance of which was rarely allowed except in extreme cases, such as one involVing the concealment of pregnancy. inspection. (14c) A careful examination of something, such as goods (to determine their fitness for purchase) or items produced in response to a discovery request (to determine their relevance to a lawsuit). [Cases: Inspec­ 168.J tion C=>1-7; Sales inspection right. (1898) The legal entitlement in certain circumstances to examine articles or documents, such as a consumer's right to inspect goods before paying for them. [Cases: Sales G 168.J inspection search. See administrative search under SEARCH. inspector. (17c) 1. A person authorized to inspect some­ thing. 2. A police officer who ranks below a superinten­ dent or deputy superintendent, and who is in charge of several precincts. inspector general. (often cap.) 1. One of several federal officials charged with supervising a particular agency's audits or investigations. 2. A governor-appointed state official who oversees internal review within executive agencies to ensure that there is no waste or abuse of resources. inspeximus (in-spek-si-mds), vb. [Latin "we have inspected") Hist. A charter in which the grantor

install

confirms an earlier charter. - Inspeximus was the opening word of the charter. Also termed vidimus. install, vb. (l6c) To induct (a person) into an office or a rank . installment, n. (18c) A periodic partial payment of a debt. installment accounting method. See ACCOUNTING METHOD.

installment contract. See retail installment contract under CONTRACT. installment credit. See CREDIT (4). installment debt. See DEBT. installment land contract. See contract for deed under CONTRACT.

installment loan. See LOAN. installment note. See NOTE (1). installment payment. See PAYMENT. installment plan. See INSTALLMENT SALE. installment sale. (1893) A conditional sale in which the buyer makes a down payment followed by periodic payments and the seller retains title or a security interest until all payments have been received. Also termed installment plan; retail installment sale. [Cases:

Sales (;::::>82(4).]

disguised installment sale. Bankruptcy. A debtor's

leasing ploy to try to keep property outside the bank­ ruptcy estate, whereby a lease either presents the les­ see-debtor with a bargain purchase option or transfers title to the lessee-debtor at the end of the lease term. - When such a lease is discovered, the property is treated as part of the bankruptcy estate, meaning that to defeat competing creditors, the lessor must have perfected a security interest. [Cases: Bankruptcy (;::::> 3101; Secured Transactions (::::> 10.] instance, n. (14c) 1. An example or occurrence . 2. 'Ihe act of instituting legal proceedings . 3. Urgent solici­ tation or insistence <she applied for the job at the instance of her friend>. instance, vb. (17c) To illustrate by example; to cite . instance court. See COURT. instant, adj. This; the present (case, judgment, order, etc.); now being discussed . instantaneous crime. See CRIME. instantaneous death. See DEATH. instant case. See case at bar under CASE. instanter (in-stan-t;}r), adv. (17c) Instantly; at once . instant-runoffvoting. See VOTING.

868

instar (in-stahr). [Latin] Hist. Likeness; the equivalent of a thing. - This term appeared in phrases such as instar omnium ("equivalent or tantamount to all"). in statu quo (in stay-t[yJoo kwoh). [Latin "in the state in which"] In the same condition as previously <Johnson, as a minor, can recover the whole of what he paid ifhe puts the other party in statu quo by returning all the value received>. - Also termed in statu quo ante. See STATUS QUO. [Cases: Cancellation ofInstruments 23; Contracts (::::> 265.] instigate, vb. (l6c) To goad or incite (someone) to take some action or course. instinct, adj. Archaic. Imbued or charged . in stirpes (in stdr-peez). See PER STIRPES. institor (in-sti-tor or -tdr), n. [Latin] Roman law. A person, often but not always a son or slave, to whom the transaction of any particular business is committed; esp., a shopkeeper or other person in charge of a com­ mercial business. See actio institoria under ACTIO. institorial power. See POWER (3). institute, n. 1. A legal treatise or commentary, such as Coke's Institutes in four volumes (published in 1628). 2. (cap. & pl.) An elementary treatise on Roman law in four books. - This treatise is one of the four compo­ nent parts of the Corpus Juris Civilis. Also termed Institutes ofJustinian; Justinian's Institutes. See CORPUS JURIS CIVILIS. 3. (cap. & pl.) An elementary treatise written by the Roman jurist Gaius. - The Institutes, written in the second century A.D., served as a foun­ dation for the Institutes ofJustinian. - Also termed Institutes ofGaius. 4. (cap. & pl.) A paraphrase of Jus­ tinian's Institutes written in Greek by Theophilus, a law professor at Constantinople who helped prepare the Institutes ofJustinian. - This work was prepared in the sixth century A.D. - Also termed Paraphrase of Iheophilus; Institutes of Iheophilus. 5. Civil law. A person named in a will as heir, but under directions to pass the estate on to some other specified person (called the substitute). See SUBSTITUTE (2). 6. An organization devoted to the study and improvement of the law. See AMERICAN LAW INSTITUTE.

institute, vb. (14c) To begin or start; commence . instituted heir. See testamentary heir under HEIR. Institute for Telecommunication Sciences. See NATIONAL TELECOMMUNICATIONS AND INFORMATION

Abbr. ITS. Institute of Museum and Library Services. An inde­ pendent federal agency that makes grants to support libraries and museums. - It was established within the National Foundation on the Arts and the Humanities in 1996. - Abbr. IMLS. See NATIONAL FOUNDATION ADMINISTRATION.

ON THE ARTS AND THE HUMANITIES.

Institutes of Gaius. See INSTITUTE (3). Institutes ofJustinian. See INSTITUTE (2).

instrument

869

Institutes of Theophilus. See INSTITUTE (4). institutio heredis (in-sti-t[yJoo-shee-oh h<J-ree-dis). [Latin] Roman law. The naming of an heir, which was essential to the validity of a will; specif., the designa­ tion in a will of a person as the testator's heir. - Also termed heredis institutio. institution. (14c) 1. The commencement of something, such as a civil or criminal action. 2. An elementary rule, principle, or practice. 3. An established organi­ zation, esp. one of a public character, such as a facility for the treatment of mentally disabled persons. - Also termed public institution. [Cases: Mental Health 31-37.]4. Civil law. A testator's appointment of an heir; the designation of an institute. See INSTITUTE (5). 5. Eccles. law. The investiture of a cleric with a benefice, by which the cleric becomes responSible for the spiritual needs of the members of a parish. Cf. PRESENTATION (2); ADVOWSON.

institutional broker. See BROKER. institutional gerrymandering. See

instructional text. Copyright. A literary, graphic, or pic­ torial work deSigned and prepared for use in ordinary teaching activities. See 17 USCA § 101. instruction directive. A document that contains specific directions concerning the declarant's wishes for health­ care decisions. Cf. ADVANCE DIRECTIVE; LIVING WILL; PROXY DIRECTIVE.

instrument. (I5c) 1. A written legal document that defines rights, duties, entitlements, or liabilities, such as a contract, will, promissory note, or share certifi­ cate. - Also termed legal instrument. "An 'instrument' seems to embrace contracts, deeds, statutes, wills, Orders in CounCil, orders, warrants, schemes, letters patent, rules, regulations, bye-laws, whether in writing or in print, or partly in both; in fact, any written or printed document that may have to be inter· preted by the Courts." Edward Seal, Cardinal Rules of Legal Interpretation 55 (A.E. Randall ed., 3d ed. 1924).

statutory instrument. See STATUTORY INSTRUMENT. testamentary instrument. See WILL. GERRYMANDER­

ING.

institutional investor. See INVESTOR. institutionalize, vb. (1865) 1. To place (a person) in an institution. 2. To give (a rule or practice) official sanction. institutional lender. A business, esp. a bank, that rou­ tinely makes loans to the general public. institutional litigant. (1858) An organized group that brings lawsuits not merely to win but also to bring about a change in the law or to defend an existing law. "Our second observation relates to what has been called the 'institutional litigant.' There are organized groups, such as labour unions or trade associations, that have a continuing interest in the development of the common law. A group of this sort may take a case to litigation, not so much for the sake of a determination of the case itself, but for the purpose of bringing about a change in the law or of defending an existing rule against a change sought by some other group. When such groups are involved, the usual arguments against prospective changes in the law through judicial decisions lose much of their force. Indeed, when the litigants have this sort of long-term interest, a judicial proceeding may take on, with the assent of all involved, something of the nature of a legislative hearing." Lon L. Fuller, Anatomy of the Law 163 (1968).

institutional market. See MARKET. institutiones (in-sti-t[y]oo-shee-oh-neez), n. [Latin] Roman law. Elementary works of law; institutes. See I:-<STITUTE_

instruct, vb. See JURY CHARGE (3). instruct down. Missouri law. (Of a court) to give jurors an instruction on a lesser included offense .• A court must instruct down only if the jury could find the defendant not guilty of the higher offense but guilty of the lesser one. instructed delegate. See DELEGATE. instructed verdict. See directed verdict under VERDICT. instruction. See JURY INSTRUCTION.

2. Commercial law. An unconditional promise or order to pay a fixed amount of money, with or without interest or other fixed charges described in the promise or order. - Under the UCC, a promise or order must meet several other specifically listed requirements to qualify as an instrument. UCC § 3-104(a). See NEGO­ TIABLE INSTRUMENT. 3. A means by which something is achieved, performed, or furthered . inchoate instrument. (1834) An unrecorded instru­ ment that must, by law, be recorded to serve as effec­ tive notice to third parties .• Until the instrument is recorded, it is effective only between the parties to the instrument. incomplete instrument. (1822) A paper that, although intended to be a negotiable instrument, lacks an essential element .• An incomplete instrument may be enforced if it is subsequently completed. UCC § 3-115. [Cases: Bills and Notes 144.] indispensable instrument. The formal written evidence of an interest in intangibles, so necessary to repre­ sent the intangible that the enjoyment, transfer, or enforcement of the intangible depends on possession of the instrument. perfect instrument. (I8c) An instrument (such as a deed or mortgage) that is executed and filed with a public registry. sealed instrument. At common law and under some statutes, an instrument to which the bound party has affixed a personal seal, usu. recognized as providing indisputable evidence ofthe validity ofthe underlying obligations.• Many states have abolished the com­ mon-law distinction between sealed and unsealed instruments.lbe UCC provides that the laws appli­ cable to sealed instruments do not apply to negotiable instruments or contracts for the sale of goods. UCC § 2-203. Cf. contract under seal under CONTRACT. [Cases: Contracts Seals 1.]

instrumental crime "At common law, the seal served to render documents indisputable as to the terms of the underlying obligation, thereby dispensing with the necessity of witnesses; the sealed instrument was considered such reliable evidence that it actually became the contract itself - called a 'spe­ cialty' - the loss of which meant loss of all rights of the obligee against the obligor. The seal also had many other consequences at common law, some of which have been retained in jurisdictions which still recognize the seal .... In states where the seal is still recognized, its primary legal significance is often the application of a longer statute of limitations to actions on sealed instruments." 69 Am. Jur. 2d Seals § 2, at 617-18 (1993).

instrumental crime. See CRIME. instrumentality, n. 1. A thing used to achieve an end or purpose. 2. A means or agency through which a function of another entity is accomplished, such as a branch of a governing body. instrumentality rule. The principle that a corporation is treated as a subsidiary if it is controlled to a great extent by another corporation. - Also termed instru­ mentality theory. instrumenta noviter reperta (in-str;)-men-t;) noh-v;)-t;)r ri-p;)r-t;)). [Law Latin] Hist. Instruments newly discov­ ered. See EX INSTRUMENTIS DE NOVO REPERTIS. instrument of accession. Int'llaw. A document formally acknowledging the issuing state's consent to an existing treaty, and exchanged with the treaty parties or depos­ ited with a designated state or international organiza­ tion. See ACCESSION (3). instrument of appeal. Hist. English law. A document used to appeal a judgment of divorce rendered by a trial judge of the Probate, Divorce and Admiralty Division to the full panel of the court.• The use of the instru­ ment of appeal ended in 1881, when appeals were taken to the Court of Appeal rather than the full panel of the Probate, Divorce and Admiralty Division. instrument of crime. See CRIMINAL INSTRUMENT. instrument of ratification. Int'llaw. A document formally acknowledging the issuing state's confir­ mation and acceptance of a treaty, and exchanged by the treaty parties or deposited with a deSignated state or international organization. See RATIFICATION (4). [Cases: Treaties (::::e3.] instrumentum (in-stroo-men-t;)m). [Latin] Hist. A document, deed, or instrument; esp., a document that is not under seal, such as a court roll. insubordination. (I8c) 1. A willful disregard of an employer's instructions, esp. behavior that gives the employer cause to terminate a worker's employment. [Cases: Labor and Employment (::::e766.] 2. An act of disobedience to proper authority; esp., a refusal to obey an order that a superior officer is authorized to give. in subsidium (in s;)b-sid-ee-;)m). [Latin] Hist. In aid of. insufficient evidence. See EVIDENCE. insufficient funds. See NOT SUFFICIENT FUNDS. insula (in-s[y];)-l;)), n. [Latin] Roman law. 1. An island. 2. A detached house or block of apartments leased to tenants.

870

insular, adj. (I7c) 1. Of, relating to, from, or constituting an island . 2. Isolated from, uninter­ ested in, or ignorant of things outside a limited scope . insular area. A territory or commonwealth.• This phrase is used by some writers to denote the genus of which the terms territory and commonwealth are species. See COMMONWEALTH (2); TERRITORY (1). insular court. See COURT.

insular possession. See POSSESSION.

in suo (in s[y]oo-oh). [Latin] Hist. In reference to one's

own affairs. in suo genere (in s[y]oo-oh jen-;)r-ee). [Latin] Hist. Of their own kind.• The phrase usu. referred to certain writings that were binding even though they lacked the formal requirements. in suo ordine (in s[y]oo-oh or-d;)-nee). [Latin] Hist. In his order. "In suo ordine .... A cautioner who is entitled to the benefit of discussion can only be called upon, for fulfilment of the obligation which he guaranteed, in his order - that is, after the principal creditor has been discussed. So, also, an heir can only be made liable for the moveable debts of his ancestor, after the executor who succeeded to the moveable estate has been discussed, and where the moveable estate has proved insufficient to meet those debts." John Trayner, TrayneY's Latin Maxims 277 (4th ed. 1894).

insurable, adj. Able to be insured . ­ insurability, n. insurable interest. See INTEREST (2). insurable value. The worth of the subject ofan insurance contract, usu. expressed as a monetary amount. [Cases: Insurance (::::e2171.] insurance. (17c) 1. A contract by which one party (the insurer) undertakes to indemnify another party (the insured) against risk ofloss, damage, or liability arising from the occurrence of some specified contingency, and usu. to defend the insured or to pay for a defense regardless of whether the insured is ultimately found liable.• An insured party usu. pays a premium to the insurer in exchange for the insurer's assumption of the insured's risk. Although indemnification provisions are most common in insurance policies, parties to any type of contract may agree on indemnification arrange­ ments. [Cases: Insurance (::::e 1001.] 2. The amount for which someone or something is covered by such an agreement. - insure, vb. "Insurance, or as it is sometimes called, assurance, is a contract by which one party, for a conSideration, which is usually paid in money either in one sum or at different times during the continuance of the risk, promises to make a certain payment of money upon the destruction or injury of something in which the other party has an interest. In fire insurance and in marine insurance the thing insured is property; in life or accident insurance it is the life or health of the person." 1 George J. Couch, Couch on Insurance § 1.2, at 4-5 (2d ed. 1984).

accident and health insurance. See health insurance.

871

accident insurance. Insurance that indemnifies against bodily injury caused by an accident. • Covered losses may include expenses, time, suffering, or death. Cf. : casualty insurance. [Cases: Insurance C= 1012.] accounts-receivable insurance. 1. Insurance against losses resulting from the insured's inability to collect outstanding accounts receivable because ofdamage to or destruction of records. 2. See credit insurance. additional insurance. Insurance added to an existing policy. all-risk insurance. Insurance that covers every kind of insurable loss except what is specifically excluded. annuity insurance. An agreement to pay the insured (or annuitant) for a stated period or for life. [Cases: Annuities assessable insurance. 1. Insurance in which the insured is liable for additional premiums if a loss is unusually large. 2. See assessable policy (1) under INSURANCE POLICY.

assessment insurance. A type of mutual insurance in which the policyholders are assessed as losses are incurred; a policy in which payments to an insured are not unalterably fixed, but are dependent on the collection ofassessments necessary to pay the amount insured. automobile insurance. An agreement to indemnify against one or more kinds ofloss associated with the use of an automobile, including damage to a vehicle and liability for personal injury. [Cases: Insurance C=10l5.] aviation insurance. Insurance that protects the insured against a loss connected with the use of an aircraft. • This type of insurance can be written to cover a variety of risks, including bodily injury, property damage, and hangarkeepers' liability. [Cases: Insur­ ance C=2329.] broad-form insurance. (1959) Comprehensive insur­ ance.• This type of insurance usu. takes the form of an endorsement to a liability or property policy, broadening the coverage that is typically available. bumbershoot insurance. 1. Marine insurance that provides broad coverage for ocean marine risks. 2. See umbrella insurance . • This term derives from the British slang tecm for umbrella. The term applies esp. to a policy insured through the London insur­ ance market. See umbrella policy under INSURANCE POLICY.

burial insurance. Insurance that pays for the holder's burial and funeral expenses. business-interruption insurance. An agreement to protect against one or more kinds of loss from the interruption of an ongoing business, such as a loss of profits while the business is shut down to repair fire damage. [Cases: Insurance G=::>2163, 2179.] business-partner insurance. See partnership insur­ ance.

insurance

captive insurance. 1. Insurance that provides coverage for the group or business that established it. [Cases: Insurance G-:::: lIn.] 2. Insurance that a subsidiary prOVides to its parent company, usu. so that the parent company can deduct the premiums set aside as loss reserves. cargo insurance. An agreement to pay for damage to freight damaged in transit. [Cases: Insurance C= 2137(3),2217.] casualty insurance. An agreement to indemnify against loss resulting from a broad group of causes such as legal liability, theft, accident, property damage, and workers' compensation.• 'Ihe meaning of casualty insurance has become blurred because of the rapid increase in different types of insurance coverage. Cf. accident insurance. [Cases: Insurance 1008; Workers' Compensation C= 1061.] coinsurance. (1889) 1. Insurance provided jointly by two or more insurers. 2. Insurance under which the insurer and insured jointly bear responsibility.• An example is commercial insurance under which only a portion of a property's value is covered, and the property owner assumes liability for any loss in excess ofthe policy limits. [Cases: Insurance G=::>2170.J collision insurance. (1921) Automobile insurance that covers damage to the insured's vehicle resulting from a rollover or collision with any object, but does not cover a personal injury or damage to other property. [Cases: Insurance G=::> 2704.] commercial insurance. 1. An indemnity agreement in the form of a deed or bond to protect against a loss caused by a party's breach of contract. 2. A form of coverage that allows an insurer to adjust the premium rates at will, and doesn't require the insured to accept the premium or renew the coverage from period to period. "Commercial insurance is a popular and very elastic term, having reference to indemnity agreements issued in the form of an insurance bond or policy, whereby parties to commercial contracts are, to a deSignated extent, guar­ anteed against loss by reason of a breach of contractual obligations on the part of the other contracting party. To this class belong poliCies of 'contract,' 'credit,' and 'title' insurances." Thomas Gold Frost, A Treatise on Guaranty Insurance § 3, at 14 (2d ed. 1909).

comprehensive general-liability insurance. Insurance that broadly covers an insured's liability exposure, including product liability, contractual liability, and premises liability. - Abbr. CGL insurance. comprehensive insurance. (1924) Insurance that combines coverage against many kinds oflosses that may also be insured separately.• This is commonly used, for example, in an automobile-insurance policy. compulsory insurance. (1887) Statutorily required insurance; esp., motor-vehicle liability insurance that a state requires as a condition to register the vehicle. [Cases: Automobiles G=::>43.]

insurance

convertible collision insurance. Collision insurance that carries a low premium until a claim is made against the policy. convertible insurance. (1926) Insurance that can be changed to another form without further evidence of insurability, usu. referring to a term-life-insurance policy that can be changed to permanent insurance without a medical examination. [Cases: Insurance C:=-1908-1911.] credit insurance. An agreement to indemnify against loss that may result from the death, disability, or insolvency of someone to whom credit is extended. • A debtor typically purchases this type of insurance to ensure the repayment of the loan. - Also termed accounts-receivable insurance. credit life insurance. See LIFE INSURANCE. crime insurance. Insurance covering losses occasioned by a crime committed by someone other than the insured. crop insurance. Insurance that protects against loss to growing crops from natural perils such as hail and fire. [Cases: Insurance 2209-2213.] fraternal insurance. Life or health insurance issued by a fraternal benefit society to its members. general-disability insurance. Disability insurance that provides benefits to a person who cannot perform any job that the person is qualified for. Also termed total-disability insurance. Cf. occupational-disability insurance. [Cases: Insurance C=2561.] government insurance. Life insurance underwritten by the federal government to military personnel, veterans, and government employees. group insurance. A form of insurance offered to a member of a group, such as the employees of a business, as long as that person remains a member of the group .• Group insurance is typically health or life (usu. term life) insurance issued under a master policy between the insurer and the employer, who usu. pays all or part of the premium for the insured person. Other groups, such as unions and associa­ tions, often offer group insurance to their members. "'Group Insurance' refers to a method of marketing standard forms of insurance, such as life insurance, whereby a master policy is issued to the party negotiating the contract with the insurer (frequently an employer), and certificates of partici pation are issued to the individual insured members of the group (frequently employees)." John F. Dobbyn, Insurance Law in a Nutshell 13 (2d ed. 1989).

guaranty insurance (gar-,:m-tee). An agreement to cover a loss resulting from another's default, insol­ vency, or specified misconduct. Also termed surety insurance. [Cases: Insurance ~-::> 1014.] "The term 'guaranty insurance' is generic in its scope and Signification, and embraces within it those subsidiary species of insurance contracts known as 'fidelity,' 'com­ merCial,' and 'judicial' insurances .... In legal acceptation guaranty insurance is an agreement whereby one party (called the 'insurer') for a valuable consideration (termed the 'premium') agrees to indemnify another (called the 'insured') in a stipulated amount against loss or damage

arising through dishonesty, fraud, unfaithful perfor­ mance of duty or breach of contract on the part of a third person ... sustaining a contractual relationship to the party thus indemnified." Thomas Gold Frost, A Treatise on Guaranty Insurance § 1, at 11 (2d ed. 1909).

health insurance. Insurance covering medical expenses resulting from sickness or injury. - Also termed accident and health insurance; sickness and accident insurance. [Cases: Insurance 1012.) homeowner's insurance. Insurance that covers both damage to the insured's residence and liability claims made against the insured (esp. those arising from the insured's negligence). indemnity insurance. See first-party insurance. industrial life insurance. See LIFE INSURANCE. inland marine insurance. An agreement to indemnify against losses arising from the transport of goods on domestic waters (Le., rivers, canals, and lakes). Cf. ocean marine insurance. insurance ofthe person. Insurance intended to protect the person, such as life, accident, and disability insur­ ance. interinsurance. See reciprocal insurance. joint life insurance. See LIFE INSURA.NCE. judicial insurance. Insurance intended to protect liti­ gants and others involved in the court system.



"By judicial insurance reference is had to insurance bonds or policies issued, in connection with the regular course of judicial or administrative procedure, for the purpose of securing the faithful performance of duty on the part of court appointees, to guarantee due compliance with the terms of undertakings entered into by parties litigant before the courts, and to secure proper administration of statute law." Thomas Gold Frost, A Treatise on Guaranty Insurance § 3, at 14 (2d ed. 1909).

key-employee insurance. See key-employee life insur­ ance under LIfE INSURANCE. last-survivor insurance. See last-survivor life insurance under LIFE INSURANCE. lease insurance. An agreement to indemnify a lease­ holder for the loss of a favorable lease terminated by damage to the property from a peril covered by the policy.• The amount payable is the difference between the rent and the actual rental value of the property, multiplied by the remaining term of the lease. level-premium insurance. Insurance whose premiums remain constant throughout the life of the agreement. • Most whole life policies are set up this way. liability insurance. An agreement to cover a loss result­ ing from the insured's liability to a third party, such as a loss incurred by a driver who injures a pedes­ trian.• The insured's claim under the policy arises once the insured's liability to a third party has been asserted. Also termed third-party insurance; pub­ lic-liability insurance. [Cases: Insurance 0:::> 1010.] life insurance. See LIFE INSURANCE. limited-policy insurance. Insurance that covers only specified perils; esp., health insurance that covers a

874

insurance

specific type of illness (such as dread-disease insur­ ance) or a risk relating to a stated activity (such as travel-accident insurance). Lloyd's insurance. (1897) Insurance provided by insurers as individuals, rather than as a corporation. • The insurers' liability is several but not joint. Most states either prohibit or strictly regulate this type of insurance. See LLOYD'S OF LONDON. [Cases: Insur­ ance 1220.] loss insurance. Insurance purchased by a person who may suffer a loss at the hands of another.• This is the converse of liability insurance, which is purchased by potential defendants. malpractice insurance (mal-prak-tis). (1943) An agreement to indemnify a professional person, such as a doctor or lawyer, against negligence claims. See errors-and-omissions itlSurance. [Cases: Insurance "Most contemporary lawyers regard malpractice insurance as an expensive, but essential, part of law practice. Its cost, along with other costs of the lawyer's trade, is ultimately borne by the consumer, the client who pays the lawyer's fees .. , . Neither the ABA Code nor the ABA Model Rules impose an ethical obligation to carry adequate malprac­ tice insurance. But contemporary lawyers have found it prudent to do so, both to protect their personal assets and to promote their public image as reliable professionals who are financially responsible." Mortimer D. Schwartz & Richard C. Wydick, Problems in Legal Ethics 127-28 (2d ed,1988).

manual-rating insurance. A type of insurance whereby the premium is set using a book that classifies certain risks on a general basis, rather than evaluating each individual case. marine insurance. An agreement to indemnify against injury to a ship, cargo, or profits involved in a certain voyage or for a specific vessel during a fixed period, or to protect other marine interests. [Cases: Insurance (::::'2214-2256.]

medigap insurance. See MEDIGAP INSURANCE. mortgage insurance. 1. An agreement to payoff a mortgage if the insured dies or becomes disabled. [Cases: Insurance C=:c2405; Mortgages C=:c20L] 2. An agreement to provide money to the lender if the mort­ gagor defaults on the mortgage payments. - Also termed private mortgage insurance (abbr. PMI). mutual insurance. A system of insurance (esp. life insurance) whereby the policyholders become members of the insurance company, each paying premiums into a common fund from which each can draw in the event of a loss. national-service life insurance. See LIFE INSURANCE. no-fault auto insurance. An agreement to indemnify for a loss due to personal injury or property damage arising from the use of an automobile, regardless of who caused the accident. [Cases: Insurance 2817-2856,]

nonassessable insurance. Insurance in which the premium is set and the insurer is barred from demanding additional payments from the insured. occupational-disability insurance. Disability insur­ ance that provides benefits to a person who cannot perform his or her regular job. [Cases: Insurance C=:c 2561(2).]

occurrence-based liability insurance. Insurance that covers bodily injuries or property damage suffered during the policy period .• Each instance of injury or damage is an "occurrence" that may trigger an insured's entitlement to benefits. The terms ofoccur­ rence-based liability insurance policies are usu. broad, limited only by specific exclusions. Also termed accident-based insurance. [Cases: Insurance (,,2264, 2265.]

ocean marine insurance. Insurance that covers risks arising from the transport of goods by sea. Cf. inland marine itlSurance. [Cases: Insurance 2214-2256.]

old-age and survivors' insurance. See OLD-AGE AND SURVIVORS' INSURANCE.

ordinary insurance. See ordinary life insurance under LIFE INSURANCE,

ordinary life insurance. See LIFE INSURANCE. overinsurance. See OVERINSURANCE. paid-up insurance. (1871) Insurance that remains in effect even though no more premiums are due. participating insurance. A of insurance that allows a policyholder to dividends.• This insurance is invariably issued by a mutual company. partnership insurance. 1. Life insurance on the life of a partner, purchased to ensure the remaining partners' ability to buyout a deceased partner's interest. Also termed partnership life insurance. 2. Health insurance for a partner, payable to the partnership to allow it to continue to operate while the partner is unable to work due to illness or injury. Also termed (in both senses) business-partner insurance. patent insurance (pat-ant). 1. Insurance against loss from an infringement of the insured's patent. 2. Insurance against a claim that the insured has infringed another's patent. 3. Insurance that funds a claim against a third party for infringing the insured's patent. port-risk insurance. Insurance on a vessel lying in port. Cf. time insurance; voyage insurance. primary insurance. Insurance that attaches immedi­ ately on the happening of a loss; insurance that is not contingent on the exhaustion of an underlying policy. Cf. excess insurance. [Cases: Insurance C=:c,2110.] private mortgage insurance. See mortgage insurance. products-liability insurance. An agreement to indem­ nify a manufacturer, supplier, or retailer for a loss arising from the insured's liability to a user who is

875

harmed by any product manufactured or sold by the insured. (Cases: Insurance 0::>2296, 2359.] profit insurance. Insurance that reimburses the insured for profits lost because of a specified peril. property insurance. An agreement to indemnify against property damage or destruction. Also termed property-damage insurance. [Cases: Insur­ ance (;:::> 1009.] public-liability insurance. See liability insurance. reciprocal insurance. A system whereby several indi­ viduals or businesses act through an agent to under­ write one another's risks, making each insured an insurer of the other members of the group. - Also termed interinsurance. [Cases: Insurance (;:::> 1204.] reinsurance. See REINSURANCE. renewable term insurance. Insurance that the insured may continue at the end of a term. but generally at a higher premium. - The insured usu. has the right to renew for additional terms without a medical exami­ nation. replacement insurance. (1938) Insurance under which the value of the loss is measured by the current cost of replacing the insured property. See replacement cost under COST. [Cases: Insurance (;:::>2172, 2184.] retirement-income insurance. An agreement whereby the insurance company agrees to pay an annuity beginning at a certain age if the insured survives beyond that age, or the value of the policy if the insured dies before reaching that age. self-insurance. A plan under which a business main­ tains its own special fund to cover any loss. - Unlike other forms ofinsurance, there is no contract with an insurance company. Also termed first-party insur­ ance. [Cases: Insurance (;:::> 1004.] sickness and accident insurance. See health insur­ ance. single-premium insurance. See single-premium life insurance under LIFE INSURANCE. social insurance. Insurance provided by a government to persons facing particular perils (such as unemploy­ ment or disability) or to persons who have a certain status (such as the elderly or the blind). - Social insur­ ance such as that created by the Social Security Act of 1935 is usu. part of a government's broader social policy. See WELFARE STATE. [Cases: Social Security and Public Welfare (;:::> 121-149.5,174-182; Unem­ ployment Compensation (;:::> 1.] split-dollar insurance. See split-dollar life insurance under LIFE INSURANCE. step-rate-premium insurance. Insurance whose premiums increase at times specified in the policy. stop-loss insurance. Insurance that protects a self­ insured employer from catastrophic losses or unusually large health costs of covered employees. • Stop-loss insurance essentially provides excess coverage for a self-insured employer. The employer

insurance

and the insurance carrier agree to the amount the employer will cover. and the stop-loss insurance will cover claims exceeding that amount. [Cases: Insur­ ance ~-::>2523, 2525(1).] straight life insurance. See whole life insurance under LIFE INSURANCE.

surety andfidelity insurance. See fidelity insurance. surety insurance. See guaranty insurance. surplus-lines insurance. Insurance with an insurer that is not licensed to transact business within the state where the risk is located. - Also termed excess-lines insurance. [Cases: Insurance (;::::c 1330.] term life insurance. See LIFE INSURANCE. terrorism insurance. Insurance that indemnifies against losses sustained because of an act of terror­ ism.• Terrorism insurance has been available since the 1970s; it was (and is) required for U.S. airports of almost all sizes. In the mid-1980s, terrorism insur­ ance was offered to indiViduals, originally as a form of travel insurance that provided compensation for terrorism-related cancellations or changes in itin­ erary when traveling to or in certain countries. See TERRORISM.

third-party insurance. See liability insurance. time insurance.1l1arine insurance. Insurance covering the insured for a specified period. Cf. voyage insur­ ance. title insurance. (1889) An agreement to indemnify against loss arising from a defect in title to real property, usu. issued to the buyer of the property by the title company that conducted the title search. Cf. GUARANTEE OF TITLE. [Cases: Insurance (;:::> 1013.] ''Title insurance is normally written by specialized com­ panies that maintain tract indexes: companies involved in writing life or casualty usually are not involved in title insurance. Title insurance is an unusual type of insur­ ance in a few respects. For one thing, it is not a recurring policy: There is only a single premium, and a title insurance policy written on behalf of an owner theoretically remains outstanding forever to protect him or her from claims asserted by others. It is more similar to an indemnifica­ tion agreement than to an insurance policy. For another, title insurance companies generally do not take risks that they know about. If the title search shows that a risk exists, the company will exclude that risk from the coverage of the policy."" Robert W. Hamilton, Fundamentals of Modern Business 84 (1989).

total-disability insurance. See general-disability insur­ ance. travel-accident insurance. Health insurance limited to injuries sustained while traveling. umbrella insurance. Insurance that is supplemental, providing coverage that exceeds the basic or usual limits ofliability. Also termed bumbershoot insur­ ance. [Cases: Insurance (;:::>2110,2394.] underinsurance. See UNDERINSURANCE. unemployment insurance. (1897) A type of social insurance that pays money to workers who are unem­ ployed for reasons unrelated to job performance.•

insurance adjuster

Individual states administer unemployment insur­ ance, which is funded by payroll taxes. Also termed unemployment compensation. lCases: Taxation 3260; Unemployment Compensation 40,60.] universal life insurance. See LIFE INSURANCE. variable life insurance. See LIFE INSURANCE. valuable-papers insurance. Insurance covering the cost of research, labor, and materials necessary to reconstruct damaged or lost documents and records - written, printed, or otherwise inscribed includ­ ing books, maps, manuscripts, legal documents, drawings, and films .• This insurance does not cover cash or securities. [Cases: Insurance voyage insurance. Marine insurance. Insurance covering the insured between destinations. Cf. time insurance. war-risk insurance. 1. Insurance covering damage caused by war. _ Ocean marine policies are often written to cover this type of risk. [Cases: Insur­ ance 0=2159, 2223.J 2. Life and accident insurance provided by the federal government to members of the armed forces .• This type of insurance is offered because the hazardous nature of military service often prevents military personnel from obtaining private insurance. [Cases: Armed Services whole life insurance. See LIFE INSURANCE. insurance adjuster. (1934) A person who determines the value of a loss to the insured and settles the claim against the insurer. - Also termed claims adjuster. See ADJUSTER. [Cases: Insurance insurance agent. (1866) A person authorized by an insurance company to sell its insurance policies. Also termed producer; (in property insurance) record­ ing agent; record agent. [Cases: Insurance G=> 1604.J general agent. An agent with the general power of making insurance contracts on behalf of an insurer. [Cases: Insurance G=> 1634(2).J special agent. An agent whose powers are usu. confined to soliciting applications for insurance, taking initial premiums, and delivering policies when issued. Also termed local agent; solicitor. [Cases: Insurance G=> 1634(2).J insurance broker. See BROKER. insurance certificate. (1865) 1. A document issued by an insurer as evidence of insurance or membership in an insurance or pension plan. 2. A document issued by an insurer to a shipper as evidence that a shipment of goods is covered by a marine insurance policy. insurance commissioner. (1889) A public official who supervises the insurance business conducted in a state. [Cases: Insurance C=) 1029.] insurance company. (18c) A corporation or association that issues insurance policies. [Cases: Insurance 1003.J captive insurance company. A company that insures the liabilities of its owner.• The insured is usu. the

876

sole shareholder and the only customer of the captive insurer. - Also termed captive insurer. [Cases: Insur­ ance G=> 1192.J mixed insurance company. An insurance company having characteristics of both stock and mutual companies in that it distributes part of the profits to stockholders and also makes distributions to the insureds. mutual insurance company. An insurance company whose policyholders are both insurers and insureds because they pay premiums into a common fund, from which claims are paid; an insurer whose policy­ holders are its owners, as opposed to a stock insurance company owned by outside shareholders. Cf. stock insurance company. [Cases: Insurance G':::J 1121.] "Mutual insurance companies are organized by a number of persons for the purpose of transacting some particular insurance business .... A company is a mutual one when the persons constituting the company contribute either cash or assessable premium notes, or both, to a common fund, out of which each is entitled to indemnity in case of loss. The distinguishing feature is mutuality, evidenced by the co·operation of members, uniting for that purpose, each taking a proportionate part in the management of its affairs and being at once insurer and insured. contributing to a fund from which all losses are paid .... Democratic ownership and control is a fundamental characteristic of a mutual insurance company." 18John Alan Appleman, Insur· ance Law and Practice § 10041, at 79-80 (1945).

stock insurance company. An insurance company operated as a private corporation and owned by stockholders who share in the company's profits and losses. stock life-insurance company. A stock insurance company that does life-insurance business. insurance fraud. See FRAUD. insurance of the person. See INSURANCE. insurance policy, (1869) 1. A contract of insurance. 2. A document detailing such a contract. - Often shortened to policy. Also termed policy of insurance; contract ofinsurance. accident policy. A type of business or personal policy that insures against loss resulting directly from acci­ dental bodily injuries sustained during the policy term. [Cases: Insurance 3121.J interest policy. A policy whose terms indicate that the insured has an interest in the subject matter of the insurance. Cf. wager policy. joint life policy. (1927) A life-insurance policy that matures and becomes due upon the death of any of those jointly insured. lapsed policy. (1873) 1. An insurance policy on which there has been a default in premium payments. [Cases: Insurance 1002.] excess insurer. An insurer who is liable for settling any part of a claim not covered by an insured's primary insurer. Also termed secondary insurer. See primary insurer. [Cases: Insurance (:=::>2110.) primary insurer. An insurer who is contractually com­ mitted to settling a claim up to the applicable policy limit before any other insurer becomes liable for any part of the same claim. See excess insurer. [Cases: Insurance (::=02110.) quasi-insurer. (1830) A service provider who is held to strict liability in the provision of services, such as an innkeeper or a common carrier.

intangible drilling cost

secondary insurer. See excess insurer. insurgent, n. (I8c) A person who, for political purposes, engages in armed hostility against an established gov­ ernment. - insurgent, adj. - insurgency, n. insuring agreement. See INSURING CLAllSE. insuring clause. A provision in an insurance policy or bond reciting the risk assumed by the insurer or establishing the scope of the coverage. - Also termed insuring agreement. [Cases: Insurance (::=2097.) insurrection. (lSc) A violent revolt against an oppressive authority, usu. a government. "Insurrection is distinguished from rout, riot, and offense connected with mob violence by the fact that in insurrection there is an organized and armed uprising against authority or operations of government, while crimes growing out of mob violence. however serious they may be and however numerous the participants, are simply unlawful acts in dis­ turbance of the peace which do not threaten the stability of the government or the eXistence of political SOCiety." 77 c.j.S, Riot; Insurrection § 29, at 579 (1994).

intact family. See FAMILY. in tail. See TAIL. intake, n. (1943) 1. The official screening of a juvenile charged with an offense in order to determine where to determine where to place the juvenile pending formal adjudication or informal disposition. 2. The body of officers who conduct this screening. 3. Hist. English law. A piece ofland temporarily taken from a common or moorland by a tenant to raise a crop. intake day. (1985) The day on which new cases are assigned to the courts. intaker. Hist. See FENCE (1). intangible, adj. (17c) Not capable of being touched; impalpable; INCORPOREAL. intangible, n. (1914) Something that lacks a physical form; an abstraction, such as responsibility; esp., an asset that is not corporeal, such as intellectual property. general intangible. (1935) Any personal property other than goods, accounts, chattel paper, docu­ ments, instruments, investment property, rights to proceeds of written letters of credit, and money. _ Some examples are goodwill, things in action, and literary rights. DCC § 9-102(a)(42). See intangible property under PROPERTY. [Cases: Secured Transac­ tions (;:::) 11.1, 14.1, 115.1.] payment intangible. (1996) A general intangible under which the account debtor's principal obligation is a monetary obligation. DCC § 9-102(a)(61). intangible asset. 1. See ASSET. 2. See INTANGIBLE TRADE VALUE.

intangible drilling cost. Oil & gas. An expense that is incident to and necessary for drilling and completing an oil or gas well and that has no salvage value.• Intan­ gible drilling costs may be deducted in the year they are incurred rather than capitalized and depreciated. 26 DSCA § 612.

880

intangible movable

intangible movable. See MOVABLE. intangible property. See PROPERTY. intangible-rights doctrine. The rule that a person is entitled to receive honest services from those in the public sector or in the private sector who have fiduciary duties to the person .• Public-sector intangible rights derive from public officials' implied fiduciary duty to make governmental decisions in the public interest. Private-sector intangible rights arise out of fiduciary relationships. The intangible-rights doctrine is codified at 18 USCA § 1346. - Also termed honest-services doctrine. [Cases: Postal Service C=>35(9).] intangible tax. See TAX. intangible thing. See incorporeal thing under THING. intangible trade property. See INTANGIBLE TRADE VALUE.

intangible trade value. Intellectual property. The measure of an enterprise's proprietary information, ideas, goodwill, and other nonphysical commercial assets.• The law of misappropriation provides some protection against the taking of intangible trade values to compete unfairly with their original owner. - Also termed intangible asset; intangible trade property. in tantum (in tan-tJm). [Latin] Hist. To that extent; insofar. Cf. PRO TANTO. integer (in-tJ-jJr), adj. [Latin] Archaic. Whole; untouched. See RES NOVA. integrated agreement. See INTEGRATED CONTRACT. integrated bar. See BAR. integrated contract. (1930) One or more writings con­ stituting a final expression of one or more terms of an agreement. - Also termed integrated agreement; inte­ grated writing. See INTEGRATION (2). [Cases: Contracts C=>245; Evidence C=>397(2).] completely integrated contract. (1950) An integrated agreement adopted by the parties as a full and exclu­ sive statement of the terms of the agreement .• 1he parties are therefore prohibited from varying or supplementing the contractual terms through parol (extrinsic) evidence. [Cases: Evidence C=>397(2).] partially integrated contract. (1958) An agreement in which some, but not all, of the terms are integrated; any agreement other than a completely integrated agreement. [Cases: Evidence C=>397(2).] integrated property settlement. See PROPERTY SETTLE­ MENT (2).

integrated writing. See INTEGRATED CONTRACT. integration. (l7c) 1. The process of making whole or combining into one. 2. Contracts. The full expression of the parties' agreement, so that all earlier agreements are superseded, the effect being that neither party may later contradict or add to the contractual terms. - Also termed merger. See PAROL-EVIDENCE RULE. [Cases: Contracts C=>245; Evidence C=>397(2).]

complete integration. (1930) The fact or state of fully expressing the intent ofthe parties .• Parol evidence is therefore inadmissible. [Cases: Evidence C=>397(2).] partial integration. (1910) The fact or state of not fully expressing the parties' intent.• Parol (extrinsic) evidence is admissible to clear up ambiguities with respect to the terms that are not integrated. [Cases: Evidence C=> 397(2).] 3. Wills & estates. The combining of more than one writing into a single document to form the testator's last will and testament. • The other writing must be present at the time of execution and intended to be included in the will. The issue of integration is more compli­ cated when it concerns a holographic will, which may be composed of more than one document written at different times. 4. The incorporation of different races into existing institutions (such as public schools) for the purpose of reversing the historical effects of racial dis­ crimination. Cf. DESEGREGATION. [Cases: Schools C=> 13(4).] 5. Antitrust. A firm's performance of a function that it could have obtained on the open market. • A firm can achieve integration by entering a new market on its own, by acquiring a firm that operates in a sec­ ondary market, or by entering into a contract with a firm that operates in a secondary market. - Also termed vertical integration. See vertical merger under MERGER.

backward integration. A firm's acquisition of owner­ ship of facilities that produce raw materials or parts for the firm's products. 6. Securities. The requirement that all security offer­ ings over a given period are to be considered a single offering for purposes of determining an exemption from registration.• The Securities and Exchange Commission and the courts apply five criteria to deter­ mine whether two or more transactions are part of the same offering of securities: (1) whether the offerings are part of a single plan of financing, (2) whether the offerings involve issuance of the same class of securi­ ties, (3) whether the offerings are made at or about the same time, (4) whether the same type of consideration is received, and (5) whether the offerings are made for the same general purpose. 17 CFR § 230.502. [Cases: Securities Regulation C=> 18.14.] integration clause. (1941) A contractual provision stating that the contract represents the parties' complete and final agreement and supersedes all informal under­ standings and oral agreements relating to the subject matter of the contract. - Also termed merger clause; entire-agreement clause. See INTEGRATION (2); PAROL­ EVIDENCE RULE. [Cases: Contracts C=>245; Evidence C=>397(2).] integration rule. (1899) The rule that if the parties to a contract have embodied their agreement in a final document, any other action or statement is without effect and is immaterial in determining the terms of the contract. See PAROL EVIDENCE RULE. [Cases: Con­ tracts C=>245; Evidence C=>397(2).]

integrity right. Copyright. The right of authors and artists to insist that their creative works not be changed without their authorization .• Integrity is one of the moral rights of the moral rights of artists recognized in civil-law countries, including much of Europe, but largely unavailable in the United States. Cf. MORAL RIGHT; ATTRIBUTION RIGHT. [Cases: Copyrights and Intellectual Property C-~6.1 intellectual property. (1808) 1. A category ofintangible rights protecting commercially valuable products of the human intellect. • The category comprises primar­ ily trademark, copyright, and patent rights, but also includes trade-secret rights, publicity rights, moral rights, and rights against unfair competition. [Cases: Copyrights and Intellectual Property (;::::> 1.] 2. A com­ mercially valuable product of the human intellect, in a concrete or abstract form, such as a copyrightable work, a protectable trademark, a patentable invention, or a trade secret. - Abbr. IP. "While there is a close relationship between intangible property and the tangible objects in which they are embodied, intellectual property rights are distinct and separate from property rights in tangible goods. For example, when a person posts a letter to someone, the personal property in the ink and parchment is transferred to the recipient .... [Tlhe sender (as author) retains intel· lectual property rights in the letter." Lionel Bently & Brad Sherman, Intellectual Property Law 1-2 (2001).

intemperance. (ISc) A lack of moderation or temper­ ance; esp., habitual or excessive drinking of alcoholic beverages. [Cases: Chemical Dependents C~ 1.J in tempus indebitum (in tem-p25; Homicide 702,731.) ulterior intent. (1848) The intent that passes beyond a wrongful act and relates to the objective for the sake of which the act is done; MOTIVE. - For example, a thief's immediate intent may be to steal another's money, but the ulterior intent may be to buy food with that money. 2. A lawmaker's state of mind and purpose in drafting or voting for a measure. [Cases: Statutes 181(1), 184.] legislative intent. See LEGISLATIVE INTENT. original intent. (17c) The mental state ofthe drafters or enactors of the U.S. Constitution, a statute, or another document. intentio (in-ten-shee-oh), n. [Latin]l. Roman law. The part of a formula in which the plaintiff's claim against the defendant is stated. See FORMULA (1). 2. Hist. A count or declaration in a real action .• Intentio was

an earlier name for narratio. See NARRATIO. PI. inten­ tiones (in-ten-shee-oh-neez). intention, n. (14c) The willingness to bring about some­ thing planned or foreseen; the state of being set to do something. intentional, adj. "Intention is the purpose or design with which an act is done. It is the foreknowledge of the act, coupled with the desire of it, such foreknowledge and desire being the cause of the act, inasmuch as they fulfil themselves through the operation of the will. An act is intentional if, and in so far as, it exists in idea before it exists in fact, the idea realis­ ing itself in the fact because of the desire by which it is accompanied." John Salmond, Jurisprudence 378 (Glanville L. Williams ed., 10th ed. 1947). "Intention. This signifies full advertence in the mind of the defendant to his conduct, which is in question, and to its consequences, together with a desire for those conse­ quences." P.H. Winfield, A Textbook ofthe Law of Tort § 10, at 19 (5th ed. 1950).

intentional, adj. (17c) Done with the aim of carrying out the act. intentional act. See ACT. intentional father. See intentional parent under PARENT. intentional fraud. See FRAUD (1). intentional infliction of emotional distress. (1958) The tort of intentionally or recklessly causing another person severe emotional distress through one's extreme or outrageous acts .• In a few jurisdictions, a physical manifestation of the mental suffering is required for Also termed the plaintiff to recover. Abbr. IIED. (in some states) outrage. See EMOTIONAL DISTRESS. Cf. NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS. [Cases: Damages (;::~'S7.19.] intentional-injury exclusion. See expectedlintended exclusion under EXCLUSION (3). intentional invasion. See INVASION. intentional manslaughter. See voluntary manslaughter under MANSLAUGHTER. intentional mother. See intentional parent under PARENT.

intentional parent. See PARENT. intentional tort. See TORT. intentional wrong. See WRONG. intent ofthe legislature. See LEGISLATIVE INTENT. intent to kill. See INTENT (1). intent to publish. Defamation. The intent to communi­ cate (defamatory words, etc.) to a third person or with knowledge that the communication will probably reach third persons. See PUBLISH (2). intent to use. See BONA FIDE INTENT TO USE. intent-to-use application. See TRADEMARK APPLICA­ TION.

inter (in-tJr), prep. [Latin] Among. inter alia (in-tJr ay-Iee-J or ah-Iee-J), adv. [Latin] (l7c) Among other things.

inter alios (in-tJr ay-Iee-J$ or ah-Iee-Js), adv. [Latin] (17c) Among other persons. Inter-American Bar Association. An organization of lawyers from North America, Central America, and South America whose purpose is to promote educa­ tion, cooperation, and profeSSional exchanges among lawyers from different American countries. Abbr. IABA. Inter-American Foundation. An independent federal foundation that supports social and economic develop­ ment in Latin America and the Caribbean by making grants to private, indigenous organizations that carry out self-help projects benefiting poor people.• 'lbe agency is governed by a nine-member board six from the private sector and three from the government. It was created in 1969 as an experimental foreign-assis­ tance program. 22 USCA § 290f. Abbr. lAP. inter apices juris (in-tJr aY-PJ-seez [or ap-d-seez] joor­ is), adv. [Law Latin] Among the subtleties of the law. See APEX fURlS. intercalare (in-tdr-b-Iair-ee), vb. [Latin] Civil law. To introduce or insert among others; esp., to introduce a day or month into the calendar.• From this Latin term derives the rare English word intercalate, roughly synonymous with interpolate. intercedere (in-tdr-see-dd-ree), vb. [Latin] Roman law. To assume another's debt; esp., to act as surety for another. intercept, n. Jiamily law. A mechanism by which a portion of an obligor's unemployment benefits, disabil­ ity income, income-tax refund, or lottery winnings is automatically diverted to a child-support-enforcement agency to satisfy past-due support obligations. [Cases: Child Support (;::=>442,467.] intercept, vb. (ISc) 1. To divert (money) from a payee to satisfy a financial obligation ofthe payee. 2. To covertly receive or listen to (a communication).• The term usu. refers to covert reception by a law-enforcement agency. See WIRETAPPING. [Cases: Telecommunications (;:::) 1435.] interchangeable bond. See BOND (3). intercommon, vb. 1. To share in the rights to a common. 2. Rist. Scots law. To communicate or deal with (crimi­ nals or others). 3. Hist. Scots law. To prohibit (a person) from communicating or dealing with a criminal. inter conjuges (in-tdr kahn-jd-geez), adv. & adj. [Law Latin] Between husband and wife. interconjunctas personas (in-tdr bn-jangk-tds pdr-soh­ nds). [Latin] Hist. Between conjunct persons.• Gen­ erally, conveyances between certain family members were void if designed to defraud. intercountry adoption. See international adoption under ADOPTION. intercourse. (ISc) 1. Dealings or communications, esp. between businesses, governmental entities, or the like. 2. PhYSical sexual contact, esp. involving the penetra­ tion of the vagina by the penis.

interdependence interdependence. Int'llaw. The reliance of countries on each other to ensure their mutual subsistence and advancement. interdict (in-tdr-dikt), n. (ISc) Roman & civil law. 1. An injunction or other prohibitory, exhibitory, or restitu­ tory decree. decretal interdict (di-kreet-dl). An interdict that sig­ nified the praetor's order or decree by applying the remedy in a pending case. edictal interdict (ee-dik-tdl). An interdict that declared the praetor's intention to give a remedy in certain cases, usu. in a way that preserves or restores pos­ session. exhibitory interdict. An interdict by which a praetor compelled a person or thing to be produced. possessory interdict. An interdict that protected a person whose possession was disturbed without due process.• A possessor in bad faith could obtain a pos­ sessory interdict because the interdict did not depend on title. It would, however, establish whether the pos­ sessor would be the defendant or the plaintiff in any subsequent claim. See INTERDICTUM. prohibitory interdict. An interdict by which a praetor forbade something to be done. restitutory interdict (ri-stich-d-tor-ee or res-ti-t[y] oo-td-ree). An interdict by which a praetor directed something to be restored to someone who had been dispossessed of it. 2. Civil law. A person who bas been interdicted; a natural person who, because of an infirmity, cannot make reasoned decisions about personal care or property or communicate those decisions; a person deprived of the capacity to make juridical acts. La. Civ. Code arts. 389, 390, 394. limited interdict. A person whose right to care for himself or herself is restricted by a court decision because of mental incapacity; a person subject to limited interdiction. La. Civ. Code art. 390. [Cases: Mental Health (;:;;>36.] interdict (in-t27-38.] annual percentage rate. (1941) The actual cost ofbor­ rowing money, expressed in the form of an annual­ ized interest rate. - Abbr. APR. bank rate. The rate of interest at which the Federal Reserve lends funds to member banks. contract rate. (1856) The interest rate printed on the face of a bond certificate. coupon rate. 1. The specific interest rate for a coupon bond. - Also termed coupon interest rate. See coupon bond under BOND (3). 2. See nominal rate. discount rate. (1913) 1. The interest rate at which a member bank may borrow money from the Federal Reserve.• This rate controls the supply of money available to banks for lending. Cf. rediscount rate. 2. The percentage of a commercial paper's face value paid by an issuer who sells the instrument to a finan­ cial institution. 3. The interest rate used in calculating present value. effective rate. (1912) The actual annual interest rate, which incorporates compounding when calculating interest, rather than the stated rate or coupon rate. face rate. See nominal rate. floating rate. (1921) A varying interest rate that is tied to a financial index such as the prime rate. illegal rate. (1867) An interest rate higher than the rate allowed by law. See USURY. [Cases: Usury C=>42.] legal rate. (1857) 1. The interest rate imposed as a matter of law when none is provided by contract. [Cases: Interest C=>31.] 2. The maximum interest rate, set by statute, that may be charged on a loan. See legal interest under INTEREST (3). Cf. USURY. [Cases: Usury C=>42.] lock rate. (2000) A mortgage-application interest rate that is established and guaranteed for a specified period. - Also termed locked-in rate. nominal rate. (1872) The interest rate stated in a loan agreement or on a bond, with no adjustment made for inflation. - Also termed coupon rate;face rate; stated rate; stated interest rate. prime rate. (1952) The interest rate that a commercial bank holds out as its lowest rate for a short-term loan to its most creditworthy borrowers, usu.large corpo­ rations.• This rate, which can vary slightly from bank to bank, often dictates other interest rates for various personal and commercial loans. - Often shortened to prime. - Also termed prime lending rate. real rate. (1895) An interest rate that has been adjusted for inflation over time. rediscount rate. The interest rate at which a member bank may borrow from the Federal Reserve on a loan

888

secured by commercial paper that has already been resold by the bank. stated rate. See nominal rate. variable rate. (1970) An interest rate that varies at preset intervals in relation to the current market rate (usu. the prime rate). interest-rate swap. An agreement to exchange interest receipts or interest-payment obligations, usu. to adjust one's risk exposure, to speculate on interest-rate changes, or to convert an instrument or obligation from a fixed to a floating rate - or from a floating to a fixed rate.• The parties to such an agreement are termed "counterparties." generic swap. See plain-vanilla swap. plain-vanilla swap. A typical interest-rate swap that involves one counterparty's paying a fixed interest rate while the other assumes a floating interest rate based on the amount of the principal of the underly­ ing debt. • The underlying debt, called the "notional" amount of the swap, does not change hands - only the interest payments are exchanged. - Also termed generic swap. interest unity. See unity of interest under UNITY. interest warrant. See WARRANT (2). interferant. 1. Something that interferes with the proper function of a chemical analysis; specif., a chemical con­ taminant that renders the results of a blood, breath, or urine test unreliable. 2. Patents. A party to an inter­ ference proceeding in the U.S. Patent and Trademark Office.• This term declined in use after the 1960s; today the PTO and courts use the term "contestant." ­ Also termed (in sense 2) contestant. See CONTESTANT (3). [Cases: Patents C=> 106(1).) interference, n. (18c) 1. The act of meddling in another's affairs. 2. An obstruction or hindrance. 3. Patents. An administrative proceeding in the U.S. Patent and Trade­ mark Office to determine who is entitled to the patent when two or more applicants claim the same inven­ tion, or when an application interferes with an existing patent.• This proceeding occurs when the same inven­ tion is claimed (1) in two pending applications, or (2) in one pending application and a patent issued within a year of the pending application's filing date. - Also termed priority contest. [Cases: Patents C=> 106.) 4. Trademarks. An administrative proceeding in the U.S. Patent and Trademark Office to determine whether a mark one party wants to register will cause confusion among consumers with another party's mark. • An administrative hearing may be held to determine whose mark prevails, but applicants usu. withdraw their appli­ cations and devise new marks instead. [Cases: Trade­ marks C=> 1289.) - interfere, vb. interference-estoppel rejection. See REJECTION. interference with a business relationship. See TORTIOUS INTERFERENCE WITH PROSPECTIVE ADVANTAGE.

889

interloper

interference with a contractual relationship. See TORTIOUS INTERFERENCE WITH CONTRACTUAL RELA­ TIONS.

interference with contract. See TORTIOUS INTERFER­ ENCE WITH CONTRACTUAL RELATIONS.

intergenerationallove. 1. Affection between adults and children. - This sense usu. refers to interfamilial affec­ tion, as between grandparents and grandchildren, and does not include sexual feelings. 2. Romance or sexual contact between a child below the age of consent and an adult. - Pedophiles use the term as a euphemism to assert that sexual contact between adults and children is consensual. intergovernmental immunity. See IMMUNITY (1). intergovernmental-immunity doctrine. (1939) Con­ stitutionallaw. The principle that both the federal gov­ ernment and the states are independent sovereigns, and that neither sovereign may intrude on the other in certain political spheres. Cf. PREEMPTION (5). [Cases: States C=> 18.93.) Intergovernmental Maritime Consultative Organiza­ tion. A unit ofthe United Nations charged with setting international standards for vessel safety and person­ nel training for shipping on the open seas. Abbr. IMCO. interim, adj. (16c) Done, made, or occurring for an inter­ vening time; temporary or provisional . interim bond. See BOND (2). interim committitur (in-t~-rim k~-mit-~-t~r). [Latin "in the meantime, let him be committed") A court order directing that a defendant be incarcerated pending further action. interim curator. See CURATOR (2). interim dominus (in-t~r-im dom-~-n~s). [Law Latin] Hist. Proprietor in the meantime. - The feminine form is domina. "A widow is interim domina of terce lands after her service, and in virtue thereof may either possess them herself, or let them out to tenants." John Trayner, Travner's Latin Maxims 286 (4th ed. 1894).

interim financing. See FINANCING. interim measure of protection. Int'llaw. An interna­ tional tribunal's order to prevent a litigant from preju­ dicing the final outcome of a lawsuit by arbitrary action before a judgment has been reached. _ This measure is comparable to a temporary injunction in national law. interim-occupancy agreement. (1962) A contract gov­ erning an arrangement (called a leaseback) whereby the seller rents back property from the buyer. See LEASE­ BACK.

interim order. See ORDER (2). interim receipt. See RECEIPT. interim relief. See RELIEF.

interim statement. Accounting. A periodic financial report issued during the fiscal year (usu. quarterly) that indicates the company's current performance. - The SEC requires the company to file such a statement if it is distributed to the company's shareholders. - Also termed interim report. interim trustee. See TRUSTEE (2). interim zoning. See ZONING. interinsurance. See reciprocal insurance under INSUR­ ANCE.

interinsurance exchange. See RECIPROCAL EXCHANGE. Interior Department. See DEPARTMENT OF THE INTERIOR.

interlineation (in-tdr-lin-ee-ay-sh~n), n. (I5c) 1. The act of writing something between the lines of an earlier writing. 2. Something written between the lines of an interline, earlier writing. Cf. INTERPOLATION (1). vb.

interlining. A carrier's practice of transferring a shipment to another carrier to reach a destination not served by the transferring carrier. interlocking confessions. See CONFESSION. interlocking director. See DIRECTOR. interlocutor (in-t~r-Iok-p-tdr). Scots law. A nonfinal judicial order disposing of any part of a case. interlocutory (in-t~r-Iok-y~-tor-ee), adj. (I5c) (Of an order, judgment, appeal, etc.) interim or temporary; not constituting a final resolution of the whole con­ troversy. Also termed medial. [Cases: Appeal and Error 1023(3); Federal Courts 572-583.] interlocutory appeal. See APPEAL. Interlocutory Appeals Act. A federal statute, enacted in 1958, that grants discretion to a U.S. court of appeals to review an interlocutory order in a civil case if the trial judge states in writing that the order involves a con­ trolling question of law on which there is substantial ground for difference of opinion, and that an immedi­ ate appeal from the order may materially advance the termination of the litigation. 28 USCA § 1292(b). Cf. FINALITY DOCTRINE; FINAL-JUDGMENT RULE. [Cases: Federal Courts C:::>660.L) interlocutory application. See APPLICATION. interlocutory costs. See COSTS (3). interlocutory decision. See interlocutory order under ORDER (2).

interlocutory decree. See interlocutory judgment under JUDGMENT.

interlocutory injunction. See preliminary injunction under INJUNCTION. interlocutory judgment. See JUDGMENT. interlocutory order. See ORDER (2). interloper, n. (16c) 1. One who interferes without justifi­ cation. 2. One who trades illegally. - interlope, vb.

890

intermeddler intermeddler. See OFFICIOUS INTERMEDDLER. intermediary (in-tar-mee-dee-er-ee), n. (18c) A mediator or go-between; a third-party negotiator. Cf. FINDER (1). - intermediate (in-tar-mee-dee-ayt), vb. informed intermediary. Products liability. A person who is in the chain of distribution from the manu­ facturer to the consumer and who knows the risks of the product. - Also termed learned intermediary. [Cases: Products Liability (;:::~j 136.) intermediary bank. See BANK. intermediate account. See ACCOUNT. intermediate casing. See CASING. intermediate court. See COURT. intermediate order. See interlocutory order under ORDER (2).

intermediate scrutiny. (1974) Constitutional law. A standard lying between the extremes of rational-basis review and strict scrutiny. - Under the standard, if a statute contains a quasi-suspect classification (such as gender or legitimacy), the classification must be sub­ stantially related to the achievement of an important governmental objective. Also termed middle-level scrutiny; mid-level scrutiny; heightened scrutiny. Cf. STRICT SCRUTINY; RATIONAL-BASIS TEST. [Cases: Con­ stitutional Law (;='3061.J intermediation. (17c) 1. Any process involving an inter­ mediary. 2. The placing offunds with a financial inter­ mediary that reinvests the funds, such as a bank that lends the funds to others or a mutual fund that invests the funds in stocks, bonds, or other instruments. in terminis (in tar-ma-nis). [Law Latin] Hist. In express terms; expressly. in terminis terminantibus (in tar-m. 3. Raw materials or goods in stock . 4. Bankruptcy. Personal property leased or furnished, held for sale or lease, or to be furnished under a contract for service; raw materials, work in process, or materials used or consumed in a business, including farm products such as crops or livestock . - inventory, vb. "Section 547 itself defines 'inventory' and 'receivable.' Do not use the U.CC definitions of these terms, or the definitions of them learned in business law classes. It is especially important to note that, for purposes of section 547, 'inventory' includes 'farm products such as crops or livestock ...." David G. Epstein et ai., Bankruptcy § 6-35, at 351 (1993).

inventory fee. A probate court's fee for services rendered to a decedent's estate. inventory search. See SEARCH. inventory-turnover ratio. Accounting. The result of dividing the cost of goods sold by the average value of inventory. _ This calculation is used to determine the effectiveness of the company's inventory-management policy. in ventre sa mere (in ven-tree sa mer). See EN VENTRE SA MERE.

inventus (in-ven-t290.] inverse zoning. See ZONING. inverso ordine (in-v 193.] fixed-dollar investment. An investment whose value is the same when sold as it was when purchased. ­ Examples are bonds held to maturity, certain govern­ ment securities, and savings accounts. fixed-income investment. An investment (including preferred stock) that pays a fixed dividend throughout its life and is not redeemable unless the corporation makes a special call. net investment. 1. The net cash required to start a new project. 2. The gross investment in capital goods less capital consumption, including depreciation. 2. The asset acquired or the sum invested. 3. INVESTI­ TURE (1). 4. LIVERY OF SEISIN. investment adviser. A person who, for pay, advises others, either directly or through publications or writings, about the value of securities or the advisabil­ ity of investing in, purchaSing, or selling securities, or who is in the business of issuing reports on securities. ­ 'The term generally excludes an employee of an invest­ ment adviser; a depository institution, such as a bank; lawyers, accountants, engineers, and teachers whose investment advice is solely incidental to the practice of their profeSSion; a broker-dealer whose advice is inci­ dental to the conduct of business and who receives no special compensation for that adVice; and publishers of bona fide newspapers, newsmagazines, or business or financial publications of general, regular, or paid circu­ lation. [Cases: Securities Regulation C::=>223, 224.]

903

investor

Investment Advisers Act. A 1940 federal statute administered by the Securities and Exchange Com­ mission - that regulates investment advisers. 15 USCA §§ 80b-l et seq. [Cases: Securities Regulation 224.J

investment bank. See BANK. investment banker. A person or institution that under­ writes, sells, or assists in raising capital for businesses, esp. for new issues of stocks or bonds; a trader at an investment bank. See investment bank under BANK. investment banking. The business of underwriting or selling securities; esp., the marketing of new stocks or bonds. "The term 'investment banking' can be used to encompass [underwriting, and acting as a dealer, broker, and market makerl. and any person in a firm performing any of those functions could be called an investment banker. By con­ vention, however, those terms are used less broadly. In large securities firms, for example, there are a number of departments. The one most visible to the public handles trades for indiViduals. The technical term for the persons working with customers in that department is 'registered representative,' but those persons are often called brokers or stockbrokers. Insiders would not call them investment bankers. A department almost inVisible to the public handles underwritings and performs a wide range of services primarily for client companies. Among those are: (1) assisting companies in the sale of securities, almost always in large amounts, to such private purchasers as insurance companies; (2) finding acquisition partners for companies that wish to acquire or be acquired by others; and (3) giving financial advice of various sorts to client companies. That department is likely to be called the investment banking department. In any case, its functions are at the heart of the inSiders' conception of investment banking." Larry D. Soderquist (>" Theresa A. Gabaldon, Secu­ rities Law 30 (199B).

investment bill. See BILL (6). investment company. See COMPANY. Investment Company Act. A 1940 federal statute enacted to curb financial malpractices and abuses by regulating investment-company activities and trans­ actions specifically, by requiring registration of investment companies and prohibiting transactions by unregistered companies; by making certain persons ineligible as affiliated persons or underwriters; by regu­ lating affiliations ofdirectors, officers, and employees; by barring changes in investment policy without share­ holder approval; and by regulating contracts ofadvisers and underwriters. 15 USCA §§ 80a-l et seq. [Cases: Securities Regulation 1037(2).]

public invitee. (1937) An invitee who is invited to enter and remain on property for a purpose for which the property is held open to the public. [Cases: Negligence C= 1037(5).] inviter. (16c) One who expressly or impliedly invites another onto the premises for business purposes. Also spelled invitor. Cf. INVITEE.

invito debitore (in-vl-toh deb-i-tor-ee). [Latin] Roman law. Without the consent of a debtor. • A creditor could assign and a third party could pay a debt invito debitore. invito domino (in-vl-toh dom-d-noh). [Latin] Roman law. Against the will of the owner.• The common­ law doctrine of theft was that the taking must be invito domino. invitor. See INVITER.

invito superiore (in-vI-toh s[y)oo-peer-ee-or-ee). [Law Latin1Scots law. Without the consent of the superior. • Ordinarily, a vassal could not renounce a fee without the superior's consent. in vitro fertilization. A procedure by which an egg is fer­ tilized outside a woman's bodv and then inserted into the womb for gestation. - Abbr. lVF. Cf. ARTIFICIAL INSEMINATION; ZYGOTE INTRAFALLOPIAN TRANSFER; GAMETE INTRAFALLOPIAN TRANSFER. [Cases: Child Custody 0::>274.5; Child Support 0::>63; Children Out-of-Wedlock C;215; Parent and Child C=)20.] in vivo fertilization. The process in which an egg is fer­ tilized inside a woman's body. Cf. ARTIFICIAL INSEMI­ NATION; ZYGOTE INTRAFALLOPIAN TRANSFER; GAMETE INTRAFALLOPIAN TRANSFER. invocation. (14c) 1. The act of calling upon for authority or justification. 2. The act of enforcing or using a legal right . invoice, n. (16c) An itemized list of goods or services furnished by a seller to a buyer, usu. specifying the price and terms of sale; a bill of costs. [Cases: Evidence~-c:> 355(3).1 invoice, vb.

consular invoice. An invoice used to hasten the entry of goods into a country by bearing the signature of the country's consul as assurance that the shipment's contents have been preverified for quantity and value. [Cases: Customs Duties (:=64.]

iron-safe clause

905

sales invoice. A document showing details ofa purchase

IOU (I-oh-yoo). [abbr. "J owe you"] (17c) 1. A memoran­

or sale, including price and quantity of merchandise. [Cases: Sales ~28.1 invoice book. A journal into which invoices are copied. involuntary, adj. (15c) Not resulting from a free and unrestrained choice; not subject to control by the will. involuntariness, n.

dum acknowledging a debt. 2. The debt itself. - Also termed due-bill.

IP. abbr. 1. INTELl.ECTUAL PROPERTY. 2. See interested party under PARTY (2). 3. See interested person under PERSON (1).

IPA. abbr. See INDEPENDENT-PRACTICE ASSOCIATIO:N. IPD. abbr. IN PRAESENTIA DOMI:NORUM. IPO. See initial public offering under OFFERING. ipse (ip-see). [Latin "he himself"] The same; the very

"[Tlhe law, like everyday thought, usually confines the notion of invo!untaryto that subclass of cases which involve purely physical, physiological, or psychological movements of our limbs, like reflexes and convulsions, movements in sleep, during sleepwalking, or under hypnosiS, or due to some disease of the brain, lunacy, or automatism." Alan R. White, Grounds of Liability 60-61 (1985).

person.

ipse dixit (ip-see dik-sit). [Latin "he himself said it"] (l5c) Something asserted but not proved . [Cases: Evidence (;::::>555.4(1).1

involuntary alienation. See ALIENATION. involuntary bailment. See BAILMENT.

ipsissima verba (ip-sis-d-ma var-b. ipsum corpus (ip-sdm kor-p.)s). [Latin] Roman law. The thing itself. - The phrase typically referred to a specific item that had to be delivered to a purchaser or legatee. IRA (I-ahr-ay or I-fd). abbr. INDIVIDUAL RETIREMENT ACCOUNT. IRAe (I-rak). A mnemonic acronym used mostly by law students and their writing instructors, esp. as a method of answering essay questions on law exams. ­ The acronym is commonly said to stand for either (1) issue, rule, application, conclusion, or (2) issue, rule, analysis, conclusion.

ira motus (I-rd moh-t12.J

irrevocable (i-rev-a-b-bal), adj. (14c) Unalterable; com­ mitted beyond recall. - irrevocability, n. irrevocable guaranty. See GUARANTY. irrevocable letter of credit. See LETTER OF CREDIT. irrevocable offer. See OFFER. irrevocable power of attorney. See POWER OF ATTOR­ NEY. irrevocable trust. See TRUST. irrigation district. Water law. A quasi-political subdi­ vision or agency established to develop, preserve, and conserve water for the benefit and use of the district's residents. [Cases: Waters and Water Courses (.'='223.] irritancy, n. Civil law. The action of rendering void or the state of being rendered void. irritant, adj. Civil law. Rendering void. irritant clause. Civil law. A deed term providing that if the deed's holder performs an act specifically pro­ hibited by the deed, the act or deed is automatically nullified. irrogare (i-ra-gair-ee), vb. [Latin] Civil law. To inflict a penalty; to make or ordain, as a law. irrotulatio (i-rah-cha-Iay-shee-oh). [Law Latin) An enrollment; an entry on a record. IRS. abbr. INTERNAL REVENUE SERVICE. IRV. See instant-runoff voting under VOTING. ISCGS. abbr. INTERNATIONAL SCHEDULE OF CLASSES OF GOODS AND SERVICES. ish. Scots law. 1. An exit. _ This appears in the phrase "ish and entry," often used in a lease, license, etc., to give someone the right to use necessary ways and passages to pass through another's property, esp. to reach a church or marketplace. 2. The expiration of a lease, license, etc.; the end of a period of time. island. (bef. 12c) A tract ofland surrounded by water but smaller than a continent; esp., land that is continually surrounded by water and not submerged except during abnormal circumstances. ISO. abbr. 1. Incentive stock option. See STOCK OPTION (2). 2. INSURANCE SERVICES OFFICE. isolated sale. See SALE. isolating, n. Family law. A parent's or caregiver's pattern of cutting a child off from normal social experiences, preventing the child from forming friendships, or making the child believe that he or she is alone in the world. Cf. IGNORING; REJECTING. ISP. abbr. INTERNET SERVICE PROVIDER. is qui cognoscit (is kWI cog-nos-it). [Latin "he who rec­ ognizes") The cognizor in a fine. See COGNIZOR; FINE (1).

is qui cognoscitur (is kWl cog-nos-a-tar). [Latin "he who is recognized"] A cognizee in a fine. See COGNIZEE; FINE (1). is qui omnino desipit (is kWI om-l1I-noh dee-sip-it). [Latin] Hist. One who is completely void of reason. ­

The phrase appeared in reference to an insane person, not an idiot. issuable, adj. 1. Capable of being issued . 2. Open to dispute or contention . 3. Possible as an outcome . issuable defense. See DEFENSE (1). issuable plea. See PLEA (3). issue, n. (16c) 1. A point in dispute between two or more parties. - In an appeal, an issue may take the form of a separate and discrete question oflaw or fact, or a com­ bination ofboth. "In federal civil procedure, an issue is a single, certain, and material point arising out of the allegations and con­ tentions of the parties; it is matter affirmed on one side and denied on the other, and when a fact is alleged in the complaint and denied in the answer, the matter is then put in issue between the parties." 3SA CJ.S. Federal Civil Procedure § 357, at 541 (1960).

collateral issue. (l8c) A question or issue not directly connected with the matter in dispute. [Cases: Criminal Law (;::338(1); Evidence G="99; Witnesses ~'='405.1

deep issue. (1944) The fundamental issue to be decided by a court in ruling on a point oflaw.• A deep issue is usu. briefly phrased in separate sentences, with facts interwoven (in chronological order) to show precisely what problem is to be addressed. Cf. surface issue. "Essentially, a deep issue is the ultimate, concrete question that a court needs to answer to decide a point your way. Deep refers to the deep structure of the case - not to deep thinking. The deep issue is the final question you pose when you can no longer usefully ask the follow-up question, 'And what does that turn on?'" Bryan A. Garner, The Winning Brief 56 (2d ed. 2004).

fact issue. See issue offact. general issue. (16c) 1. A plea (often a general denial) by which a party denies the truth of every material alle­ gation in an opposing party's pleading. 2. The issue arising from such a plea. [Cases: Pleading 15.] "The general issue is a denial of the legal conclusion sought to be drawn from the declaration. It denies by a general form of expression the defendant's liability, and enables the defendant to contest, without specific averments of the defense to be asserted, most of the allegations which the plaintiff may be required to prove to sustain his action, and in some actions to raise also various affirmative defenses. It fails to perform the functions of pleading, either in giving notice or in reducing the case to specific issues." Benjamin J. Shipman, Handbook of Common· Law Pleading § 169, at 304 (Henry Winthrop Ballantine ed., 3d ed. 1923).

immaterial issue. (l8c) An issue not necessary to decide the point of law. Cf. material issue. informal issue. Rare. An issue that arises when a defen­ dant does not properly or fully plead in answer to a material allegation. issue offact. (17e) A point supported by one party's evidence and controverted by another's. - Also termed fact issue.

issue

issue oflaw. (18c) A point on which the evidence is undisputed, the outcome depending on the court's interpretation of the law. Also termed legal issue. legal issue. (17c) 1. A legal question, usu. at the foun­ dation of a case and requiring a court's decision. 2. See issue oflaw. material issue. An issue that must be decided in order to resolve a controversy. - The existence of a material issue of disputed fact precludes summary judgment. Cf. immaterial issue. [Cases: Federal Civil Procedure C=>2470.1; Judgment (;='181(2).] multifarious issue. An issue that inquires about several different points (esp. facts) when each one should be inquired about in a separate issue. special issue. (l7c) 1. At common law, an issue arising from a specific allegation in a pleading. - Special issues are no longer used in most jurisdictions. 2. See special interrogatory under INTERROGATORY. surface issue. A superficially stated issue phrased in a single sentence, without many facts, and usu. begin­ ning with the word whether. Cf. deep issue. ultimate issue. (17c) A not-yet-decided point that is sufficient either in itself or in connection with other Also termed pOints to resolve the entire case. ultimate question. 2. A class or series ofsecurities that are Simultaneously offered for sale. Also termed bond issue; stock issue. See OFFERING. hot issue. A security that, after an initial or secondary offering, is traded in the open market at a substan­ tially higher price. Also termed hot stock. new issue. A stock or bond sold by a corporation for the first time, often to raise working capital. See BLUE-SKY LAW.

original issue. The first issue ofsecurities ofa particu­ lar type or series. shelfissue. An issue of securities that were previously registered but not released at the time of registra­ tion. 3. Wills & estates. Lineal descendants; offspring. issue female. 1. Female descendants. 2. A female whose descent from a specified ancestor is traceable through the direct female line. See tail female under TAIL. [Cases: Wills . issue male. 1. Male descendants. 2. A male whose descent from a specified ancestor is traceable through the direct male line. See tail male under TAIL. [Cases: Wills lawful issue. (16c) Descendants, including descendants more remote than children. - At common law, the term included only those who were children oflegally recognized subsisting marriages. See DESCENDANT; HEIR. [Cases: Descent and Distribution 4. Commercial law. The first delivery of a negotiable instrument by its maker or holder.

908

issue, vb. (l4c) 1. To accrue 2. To be put forth officially <without probable cause, the search warrant will not issue> 3. To send out or distribute officially . ­ issuance, n. issued stock. See STOCK. issue estoppel. See COLLATERAL ESTOPPEL. issue fee. Patents. The charge that an inventor must pay the U.S. Patent and Trademark Office before an allowed patent application can be issued as a patent. [Cases: Patents C""'" 103.] issue pleading. See PLEADING (2). issue preclusion. See COLLATERAL ESTOPPEL. issuer. 1. A person or entity (such as a corporation or bank) that issues securities, negotiable instruments, or letters of credit. 2. A bailee that issues negotiable or nonnegotiable documents oftitle. nonreporting issuer. An issuer not subject to the report­ ing requirements of the Exchange Act because it (1) has not voluntarily become subject to the reporting requirements, (2) has not had an effective registra­ tion statement under the Securities Act within the fiscal year, and (3) did not, at the end of its last fiscal year, meet the shareholder or asset tests under the Exchange Act registration requirements. issue roll. Hist. English law. A court record on which the issues in contested matters are briefly noted. - lbis practice was abolished in 1834. See INCIPITUR. ITA. abbr. INTERNATIONAL TRADE ADMINISTRATION. ita lex scripta est (I-t;::l leks skrip-t;::l est). [Latin] So the law is written. - This expression means that the law must be obeyed despite the apparent rigor ofits applica­ tion. The idea is that we must be content with the law as it stands, without inquiring into its reasons. - Some­ times shortened to ita scripta est ["so it is written"]. "If practice be the whole he is taught, practice must also be the whole he will ever know: if he be uninstructed in the elements and first principles upon which the rule of practice is founded, the least variation from established precedents will totally distract and bewilder him: ita lex scripta est is the utmost his knowledge will arrive at; he must never aspire to form, and seldom expect to comprehend, any arguments drawn a priori, from the spirit of the laws and the natural foundations of justice." 1 William Blackstone,

Commentaries on the Laws of England 32 (1765).

ita te Deus adjuvet (H;::I tee dee-ds aj-d-vet). [Latin] So help you God. - An old form of administering an oath in England, usu. in connection with other words, such as: Ita Ie Deus adjuvet, et sacrosancta Dei Evangelia ("So help you God, and God's holy gospels"), and Ita te Deus adjuvet et omnes saneti ("So help you God and all the saints"). ITC. See investment tax credit under TAX CREDIT. item. (l6c) 1. A piece of a whole, not necessarily sepa­ rated. 2. Commercial law. A negotiable instrument or a promise or order to pay money handled by a bank for collection or payment. - The term does not include a payment order governed by division 11 of the VCC

909

or a credit- or debit-card slip. VCC 4-104(a)(9). [Cases: Banks and Banking ~ 137, 158-168.] par item. An item that a drawee bank will remit to another bank without charge. line item. Accounting. In a financial statement, a single entry or notation to which a particular dollar amount is attached. 3. In drafting, a subpart of text that is the next smaller unit than a subparagraph.• In federal drafting, for example, "(4)" is the item in the following citation: Rule 19(a){l)(B)(4). Also termed (in sense 3) clause. itemize, vb. To list in detail; to state by items . itemized deduction. See DEDUCTION. item veto. See line-item veto under VETO. iter (I-ti"lr or it-i"Ir), n. [Latin] 1. Roman law. A rural ser­ vitude that allowed the holder to walk or ride on horse­ back (but not drive a draft animal) through another's land. - Also termed servitus itineris (sar-vi-tas I-tin­ ar-is). Cf. ACTUS (3); VIA (2).2. Hist. A journey; esp., a circuit made by an eyre justice. See EYRE.

IVF

itinerant vendor. See VENDOR. itinerate (I-tin-i"I-rayt), vb. (Of a judge) to travel on a circuit for the purpose ofholding court. See CIRCUIT. itineration, n. itinerant, adj. & n. ITS. abbr. Institute for Telecommunication Sciences. See NATIONAL TELECOMMUNICATIONS AND IKFORMATION ADMINISTRATION. iudex (yoo-deks). [Latin] See JUDEX. iudicum reiectio. See jUDICUM REjECTIO. iudicum sortitio. See JUDICUM SORTITIO. iudicum subsortitio. See jUDlCUM SUBSORTITlO. ius (yas aryoos). [Latin "law, right"] See JUS. ius praetorium. See LEX PRAETORIlJM. ius primae noctis. See MARCHETUM. ius provocationis. See JUS PROVOCATIONIS. iustae nuptiae. See JUSTAE NUPTIAE. IVA. abbr. See INDIVIDUAL VOLUNTARY ARRANGE­ MENT. IVF. abbr. IN VITRO FERTILIZATION.

J

J. abbr. 1. JUDGE. 2. JUSTICE (2).3. JUDGMENT. 4. JUS. 5. JOURNAL. JA. abbr. 1. JUDGE ADVOCATE. 2. See joint account under ACCOUNT. Jac. abbr. Jacobus the Latin form of the name James, used principally in citing statutes enacted during the reigns of English kings of that name (e.g., "St. 1, Jac. 2"). jacens (jay-senz). [Latin) Lying; fallen; in abeyance. See hereditas jacens under HEREDITAS. jackpot justice. Slang. The awarding of enormous and apparently arbitrary damages to plaintiffs, thereby making the plaintiffs wealthy and encouraging others to file lawsuits seeking excessive damages for even minor actual harm. Jackson-Denno hearing. (1965) A court proceeding, held outside the jury's presence to determine whether the defendant's confession was voluntary and therefore admissible as evidence. Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774 (1964). - Also termed Jackson v. Denno hearing. [Cases: Criminal Law 0531, 532.] Jackson standard. (1980) Criminal law. The principle that the standard of review on appeal when a criminal defendant claims that there is insufficient evidence to support the conviction - is to determine whether, after considering the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781 (1979). [Cases: Criminal LawC=' 1144.13(3), 1159.2(7).] Jackson v. Denno hearing. See JACKSON-DENNO HEAR­ ING. Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act. A 1989 federal statute requiring each state to create a sex­ offender registry of sexually violent offenders, par­ ticularly those who have been convicted of sex crimes against minors, and to disclose information about registered sex offenders for public-safety purposes.• 'Ihe Act mandates a minimum registration period of 10 years, beginning on the offender's date of release from custody or supervision. It was amended in 1996 by Megan's Law, which added the disclosure requirement. See 42 USCA § 14071. The Act was named for ll-year­ old Jacob Wetterling of Minnesota, who was abducted by a stranger in 1989. During the immediate search for Jacob, law-enforcement officers discovered that many of the county's halfway houses sheltered sex offenders from another county. Jacob was never found. - Often shortened to Jacob Wetterling Act or Wetterling Act. Cf. MEGAN'S LAW. [Cases: Mental Health 0469.1

jactitation (jak-ti-tay-sh,m). (17c) 1. A false boasting or claim that causes injury to another. [Cases: Libel and Slander 140.] 2. Civil law. SLANDER OF TITLE. jactitation of marriage. Rist. 1. False and actionable boasting or claiming that one is married to another. 2. An action against a person who falsely boasts ofbeing married to the complainant.

"Jactitation of marriage is a cause of action which arises when a person falsely alleges that he or she is married to the petitioner, and the remedy sought is a perpetual injunction against the respondent to cease making such allegations. The cause is now uncommon in English munici­ pal law and almost unknown in the conflict of laws." R.H. Graveson, Conflict of Laws 349 (7th ed. 1974).

jactitation of title. See SLANDER OF TITLE. jactura (jak-t[yJoor-J), n. [Latin] Civil law. 1. A throwing ofgoods overboard to lighten or save a vessel; JETTISON. 2. A loss incurred from this; general average. See general average under AVERAGE. - Also termed jactus. jactus lapilli (jak-tas la-pit-I). [Latin "the throwing down of a stone"] Roman law. A landowner's thrOWing of a small stone onto a neighbor's land to symbolically protest construction that could threaten the thrower's interest. Cf. NOVI OPERIS NUNTIATIO. jactus mercium navis levandae causa (jak-tas mar­ shee-am nay-vis la-van-dee kaw-z36.]

joinder in demurrer. Common-law pleading. A set form of words by which either party accepts or joins

i

in a legal issue; esp., the plaintiffs acceptance of the defendant's issue ofIaw. joinder in issue. See jOinder ofissue. joinder in pleading. Common-law pleading. One party's acceptance ofthe opposing party's proposed issue and mode of triaL joinder oferror. A written denial of the errors alleged in an assignment of errors in a criminal case. joinder ofissue. 1. The submission of an issue jointly for decision. 2. The acceptance or adoption of a disputed point as the basis of argument in a controversy. Also termed joinder in issue; similiter. 3. The taking up of the opposite side of a case, or of the contrary view on a question. joinder ofoffenses. The charging of an accused with two or more crimes as multiple counts in a single indictment or information. - Unless later severed, joined offenses are tried together at a single trial. Fed, R. Crim, P. 8(a). [Cases: Indictment and Information 126.] joinder ofremedies. The jOinder of alternative claims, such as breach of contract and quantum meruit, or of one claim with another prospective claim, such as a creditor's claim against a debtor to recover on a loan and the creditor's claim against a third party to set aside the transfer of the loan's collateral. [Cases: Action C=>43; Federal Civil Procedure C=>81.] mandatory joinder. See compulsory joinder.

misjoinder. See MISJOINDER.

nonjoinder. See NONJOINDER. permissive joinder. (1903) The optional joinder of parties if (1) their claims or the claims asserted against them are asserted jointly, severally, or in respect of the same transaction or occurrence, and (2) any legal or factual question common to all of them will arise. Fed. R. Civ. P. 20. [Cases: Federal Civil Procedure 241; Parties C=> 13,24.] pretensive joinder. Joinder of defendants solely to obtain venue in a jurisdiction in which the action could not otherwise be tried. [Cases: Venue 22(3).] joint, adj. (14c) 1. (Of a thing) common to or shared by two or more persons or entities <joint bank account>. 2. (Of a person or entity) combined, united, or sharing with another <joint heirs>. joint account. See ACCOUNT. joint action. See ACTION (4). joint activity, See JOINT PARTICIPATION. joint administration. Bankruptcy. 'The management of two or more bankruptcy estates, usu. involVing related debtors, under one docket for purposes of handling various administrative matters, including notices to creditors, to conclude the cases more efficiently. - A bankruptcy court can order a joint administration when there are two or more cases pending involving a husband and wife, a partnership and at least one

joint adoption

partner, two or more business partners, or a business and an affiliate. The intent should be to increase the administrative efficiency of administering the two cases; the substantive rights of creditors should not ordinarily be affected. Fed. R. Bankr. P. 1015. - Also termed procedural consolidation. See ADMINISTRATlON (3). Cf. substantive consolidation under CONSOLIDA­ TION. [Cases; Bankruptcy joint adoption. See ADOPTION. joint adventure. 1. See common adventure under ADVEN­ TURE. 2. See JOINT VENTURE. joint and mutual will. See WILL. joint and reciprocal will. See joint and mutual will under WILL. joint and several, adj. (I7c) (Of liability, responsibility, etc.) apportionable at an adversary's discretion either among two or more parties or to only one or a few select members of the group; together and in separation. See JOINT; SEVERAL. [Cases; Contracts 181; Torts 135.] joint and several bond. See BOND (3). joint and several liability. See LIABILITY. joint and several note. See NOTE (1). joint-and-survivorship account. See joint account under ACCOUNT.

joint annuity. See ANNUITY. joint authors. Copyright. Two or more authors who collaborate in producing a copyrightable work, each author intending to merge his or her respective con­ tributions into a single work, and each being able to exploit the work as desired while remaining account­ able for a pro rata share of the profits to the coauthor or coauthors. [Cases; Copyrights and Intellectual Property C=>41(3).] joint ballot. See BALLOT (2). joint board. Labor law. A committee - usu. made up of an equal number ofrepresentatives from management and the union - established to conduct grievance pro­ ceedings or resolve grievances. joint bond. See BO?>lD (3). jOint-check rule. The principle that when an owner or general contractor issues a check that is made jointly payable to a subcontractor and the subcontractor's materialman supplier, the materialman's indorsement on the check certifies that all amounts due to the mate­ rialman. up to the amount ofthe check, have been paid. • This rule protects the owner or general contractor from lien foreclosure by a materialman who was not paid by the subcontractor. By issuing a joint check, the owner or general contractor is not left merely to hope that the subcontractor pays all the materialmen. And the materialman is protected because it can refuse to indorse the check until it is satisfied that the sub­ contractor will pay it the appropriate amount. [Cases: Mechanics' Liens C=> 115(5).] joint committee. See COMMITTEE.

914 !

joint contract. See CO?>lTRACT. joint covenant. See COVENANT (1). joint creditor. See CREDITOR. joint custody. See CUSTODY (2). joint debtor. See DEBTOR. joint defendant. See CODEFENDANT. joint-defense privilege. See PRIVILEGE (3). joint demise. See DEMISE. joint employment. See EMPLOYMENT. joint enterprise. (17c) 1. Criminal law. An undertak­ ing by two or more persons who set out to commit an offense they have conspired to. See CONSPIRACY. [Cases; Conspiracy C=>23. 1.] 2. Torts. An undertaking by two or more persons with an equal right to direct and benefit from the endeavor, as a result of which one partici­ pant's negligence may be imputed to the others. Also termed (in senses 1 & 2) common enterprise. [Cases: Automobiles (;::> 198(4),227.5; Negligence C=>S7S.] 3. JOINT VENTURE. 4. A joint venture for noncommercial purposes.[Cases: Joint Adventures "A business relationship is needed for ajoint venture but not for a joint enterprise. Thus, a joint enterprise may be defined as a non-commercialjoint venture." 46 Am.Jur. 2d Joint Ventures § 6, at 27 (1994).

joint estate. See ESTATE (1). joint executor. See EXECUTOR. joint heir. See HEIR. joint indictment. See INDICTMENT. joint interest. See INTEREST (2). joint-interest purchase. See SPLIT-INTEREST PURCHASE OF PROPERTY.

joint inventor. Patents. A person who collaborates with another or others in developing an invention.• All joint inventors must be identified on a patent applica­ tion. [Cases: Patents ~'=>92.] "Employing a friend, mechanic, model maker or other person to do work for one on an idea does not, as a rule, make him a joint inventor with the originator. One has a right to employ someone else to do one's work. There are conditions, however, where such person would become a joint inventor, or even sole inventor. It is best to play safe and consult an experienced patent lawyer, laying before him all of the facts." Richard B. Owen, Patents, Trademarks, Copyrights, Departmental Practice 7 (1925).

joint legal custody. See joint custody under

CUSTODY

(2).

joint liability. See LIABILITY. joint life insurance. See LIFE INSURANCE. joint life policy. See INSURANCE POLICY. joint managing conservatorship. See joint custody under CuSTODY (2). joint mortgage. See MORTGAGE. joint negligence. See NEGLIGENCE. joint note. See NOTE (1). joint obligation. See OBLIGATION.

915

joint offense. See OFFENSE (1). joint ownership. See OWNERSHIP. joint participation. (1971) Civil-rights law. A pursuit undertaken by a private person in concert with a gov­ ernmental entity or state official, resulting in the private person's performing public functions and thereby being subject to claims under the civil-rights laws. Also termed jOint activity. See SYMBIOTIC-RELATIONSHIP TEST; NEXUS TEST. [Cases: Civil Rights C-::l1326(S).J joint party. See COPARTY. joint physical custody. See joint custody under CUSTODY

journal of notarial acts

jointuress. See JOINTRESS. joint venture. (18c) A business undertaking by two or more persons engaged in a single defined project. • The necessary elements are: (1) an express or implied agree­ ment; (2) a common purpose that the group intends to carry out; (3) shared profits and losses; and (4) each member's equal voice in controlling the project. - Also termed joint adventure; jOint enterprise. Cf. PARTNER­ SHIP; STRATEGIC ALLIANCE; VENTURE [Cases: Joint Adventures 1.2.] ''There is some difficulty in determining when the legal relationship of joint venture exists, with authorities dis­ agreeing as to the essential elements .... The joint venture is not as much of an entity as is a partnership." Henry G. Henn & John R. Alexander, Laws of Corporations § 49, at

(2).

joint plaintiff. See COPLAINTIFF. joint possession. See POSSESSION. joint property. See PROPERTY. joint rate. See RATE. joint resolution. See RESOLUTION (1). jointress. Hist. A woman who has a jointure. - Also termed jointuress. See JOINTURE (1). joint return. See TAX RETURN. joint rule. See RULE (2). joint session. See SESSION (1). joint stock. See STOCK. joint-stock association. See jOint-stock company under COMPANY.

joint-stock company. See COMPANY. joint tariff. See TARIFF (5). joint tenancy. See TENANCY. joint tenant. See joint tenancy under TENANCY. joint tortfeasors. See TORTFEASOR. joint trespass. See TRESPASS. joint trial. See TRIAL. joint trustee. See COTRUSTEE. jointure (joyn-chdr). (ISc) 1. Archaic. A woman's freehold life estate in land, made in consideration of marriage in lieu of dower and to be enjoyed by her only after her husband's death; a settlement under which a wife receives such an estate.• The four essential elements are that (1) the jointure must take effect immediately upon the husband's death, (2) it must be for the wife's own life, and not for another's life or for a term of years, (3) it must be held by her in her own right and not in trust for her, and (4) it must be in lieu ofher entire dower. See DOWER. [Cases: Dower and Curtesy C=>29, 40.] equitable jointure. A premarital arrangement for a woman to enjoy a jointure, accepted by the woman in lieu ofdower. - Also termed equitable dower. [Cases: Dower and Curtesy C::::>40.J 2. A settlement under which a wife receives such an estate. - Also termed legal jointure. 3. An estate in lands given jointly to a husband and wife before they marry. See JOINTRESS. [Cases: Dower and CurtesyC:::> 40.]

106 (3d ed. 1983).

joint-venture corporation. See CORPORATION. joint verdict. See VERDICT. joint welfare fund. See FUND (1). joint will. See WILL. joint work. See WORK (2). joker. (1904) 1. An ambiguous clause inserted in a leg­ islative bill to render it inoperative or uncertain in some respect without arousing opposition at the time ofpassage. 2. A rider or amendment that is extraneous to the subject of the bill. Jones Act. Maritime law. A federal statute that allows a seaman injured during the course of employment to recover damages for the injuries in a negligence action against the employer.• If a seaman dies from such injuries, the seaman's personal representative may maintain an action against the employer. 46 USCA app. § 688. [Cases: Seamen C:::>29.J Jones Act vessel. See VESSEL. jour (zhoor), n. [French] Day <jour en bane>. journal. (ISc) 1. A book or record kept, usu. daily, as of the proceedings of a legislature or the events of a ship's voyage. - Also termed log; logbook. See MINUTES (2). 2. Accounting. In double-entry bookkeeping, a book in which original entries are recorded before being trans­ ferred to a ledger. 3. A periodical or magazine, esp. one published for a scholarly or professional group. - Abbr.

J. journal entry. See ENTRY (2). journalist's privilege. See PRIVILEGE (J). journal of notarial acts (noh-tair-ee-dl). The notary public's sequential record ofnotarial transactions, usu. a bound book listing the date, time, and type of each official act, the type of instrument acknowledged or verified before the notary, the signature of each person whose signature is notarized, the type of information used to verify the identity of parties whose signatures are notarized, and the fee charged.• 1his journal, required by law in many states, provides a record that mav be used as evidence in court. Also termed not~rial record; notarial register; notary record book; sequential journal.

journeys accounts

journeys accounts. Hist. The number of days (usu. 15) after the abatement of a writ within which a new writ could be obtained .• This number was based on how many days it took for the plaintiff to travel (or journey) to the court. joyriding, n. (1909) The illegal driving ofsomeone else's automobile without permission, but with no intent to deprive the owner of it permanently.• Under the Model Penal Code, the offender's reasonable belief that the owner would have consented is an affirmative defense. See Model Penal Code § 223.9. - Also termed unauthorized use ofa vehicle.[Cases: Automobiles 339.] - joyride, vb. joyrider, n. "When the automobile began to appear and was limited to the possession of a few of the more fortunate members of the community, many persons who ordinarily respected the property rights of others, yielded to the temptation to drive one of these new contrivances without the consent of the owner. This became so common that the term 'joyrider' was coined to refer to the person who indulged in such unpermitted use of another's car. For the most part it was a relatively harmless type of trespass ...." Rollin M. Perkins & Ronald N. Boyce, Criminal Law 333 (3d ed. 1982).

J.P. abbr. JUSTICE OF THE PEACE. J.P. court. See justice court under COURT. JPML. abbr. JUDICIAL PANEL ON MULTIDISTRICT LITI­ GATION.

JPO. abbr. Japanese Patent Office. J.P. Stevens test. Patents. A two-part test to determine whether a patent-applicant's conduct amounted to inequitable conduct before the Patent and Trademark Office, by deciding (1) whether the threshold levels of materiality and intent are met, and (2) whether, on balance, the facts show inequitable conduct as a matter oflaw. J.P. Stevens v. Lex Tex Ltd., 747 F.2d 1553 (Fed. Cir. 1984).• In the balance, information that is clearly material or conduct that is clearly deceptive can decide the outcome. [Cases: Patents 0=>97.J J.S. abbr. JOHN-A-STILES. JSc. abbr. Justice of Supreme Court. J.S.D. [Law Latin juris scientiae doctor] abbr. DOCTOR OF JURIDICAL SCIENCE.

jubere Ouu-beer-ee), vb. [Latin] Civil law. L To order, direct, or command. 2. To assure or promise. J.U.D. [Law Latin juris utriusque doctor "doctor ofboth laws"] abbr. A doctor of both civil and canon law. judex (joo-deks), n. [Latin] 1. Roman law. A private person appointed by a praetor or other magistrate to hear and decide a case .• The Roman judex was originally drawn from a panel of qualified persons of standing but was later himself a magistrate. 2. Roman & civil law. A judge. 3. Rist. A juror. - Also spelled iudex. PI. judices (joo-di-seez). judex ad quem (ad kwem). Civil law. A judge to whom an appeal is taken. judex a quo (ay kwoh). Civil law. A judge from whom an appeal is taken.

916

judex datus (day-tds). Roman law. A judex aSSigned by a magistrate or provincial governor to try a case under cognitio extraordinaria. See COGNITIO EXTRAORDI­ NARIA.

judex delegatus (del-d-gay-tds). Roman & civil law. A delegated judge under cognitio extraordinaria; a special judge. See COGNITlO EXTRAORDINARIA. judex fiscalis (fis-kay-lis). Roman law. A judex having jurisdiction of matters relating to the fiscus. See FISCUS (1).

judex ordinarius (or-dd-nair-ee-ds). Civil law. A judge having jurisdiction in his own right rather than by delegated authority.• The judge was typically a pro­ vincial governor. judex pedaneus (p;l-day-nee-;ls). Roman law. A judex to whom petty cases are delegated; an inferior or deputy judge under cognitio extraordinaria. Also termed judex specialis. judex quaestionis (kwes-chee-oh-nis or kwes-tee-). Roman law. The chairman of the jury in a criminal case, either a praetor or a magistrate oflower rank. judex selectus (s;l·lek-t;ls). Civil law. A judge selected to hear the facts in a criminal case. judex specialis (spesh-ee-ay-lis). Roman law. See judex pedaneus. judge, n. (14c) A public official appointed or elected to hear and decide legal matters in court. • The term is sometimes held to include all officers appointed to decide litigated questions, including a justice of the peace and even jurors (who are judges ofthe facts). But in ordinary legal usage, the term is limited to the sense of an officer who (1) is so named in his or her commis­ sion, and (2) presides in a court. Judge is often used interchangeably with court. See COURT (2). - Abbr. J. (and, in plural, JJ. [Cases: Judges 0=> 1.] administrative-law judge. See ADMINISTRATIVE-LAW JUDGE.

administrative patent judge. Patents. A U.S. Patent and Trademark Office adjudicator charged with con­ ducting interference and appeal proceedings. Abbr. APT. [Cases: Patents C"~ 111.] associate judge. (18c) An appellate judge who is neither a chief judge nor a presiding judge. Also termed puisne judge. bankruptcy judge. (1873) A judicial officer appointed by a U.S. Court of Appeals to preside over cases filed under the Bankruptcy Code and proceedings related to bankruptcy cases that are referred by the U.S. district court .• A bankruptcy judge is appointed for a term of 14 years. 28 USCA §§ 151 et seq. See ARTICLE I JUDGE. [Cases: Bankruptcy 0=>2123.] chiefadministrative patentjudge. Patents. The super­ visor ofadministrative patent judges at the U.S. Patent and Trademark Office. Abbr. CAPT. chiefjudge. (15c) The judge who presides over the sessions and deliberations of a court, while also

917

overseeing the administration of the court. - Abbr.

c.J. circuit judge. (lSc) 1. A judge who sits on a circuit court; esp., a federal judge who sits on a U.S. court of appeals. 2. Rist. A special judge added to a court for the purpose of holding trials, but without being a regular member of the court. - Abbr. c.J. city judge. See municipal judge. continuingpart-time judge. A judge who serves repeat­ edly on a part-time basis by election or under a con­ tinuing appointment. county judge. (ISc) A local judge having criminal or civil jurisdiction, or sometimes both, within a county. criminal-court judge. A judge who sits on a court with jurisdiction only over criminal matters. [Cases: Judges de facto judge (di fak-toh). (IS29) A judge operating under color oflaw but whose authority is procedur­ ally defective, such as a judge appOinted under an unconstitutional statute. - Also termed judge de facto. [Cases: Judges 6,26.] district judge. (lSc) 1. A judge in a federal or state judicial district. 2. See metropolitan stipendiary mag­ istrate under MAGISTRATE. - Abbr. D.J. duty judge. A judge responsible for setting an arrestee's bail, usu. by telephone or videoconference. family-court judge. A judge who sits on a court that has jurisdiction exclusively over matters involving domestic relations, such as divorce and child-custody matters. [Cases: Judges (;:::;::, 1.] hanging judge. (ISc) Slang. A judge who is harsh (sometimes corruptly so) with defendants, esp. those accused of capital crimes. inferior judge. A judge who sits on a lower court. [Cases: Judges C=:: 1.1 judge de facto. See de facto judge. judge delegate. A judge who acts under delegated authority. judge ofprobate. See probate judge. judge ordinary. Rist. The judge ofthe English Court for Divorce and Matrimonial Causes from 1857-lS75. judge pro tempore (proh tem-pa-ree). See visiting judge. juvenile-court judge. A judge who sits on a court that has jurisdiction exclusively over matters involv­ ing juveniles, such as suits involving child abuse and neglect, matters involving status offenses, and, sometimes, suits to terminate parental rights. [Cases: Judges 1.] lay judge. (16c) A judge who is not a lawyer. mentor judge. An experienced judge who helps a new judge by sharing knowledge and offering guidance.

judge

military judge. A commissioned officer of the armed forces who is on active duty and is a member of a bar of a federal court or of the highest court of a state. ­ The Judge Advocate General ofthe particular service must certify a military judge as qualified for duty. A military judge of a general court-martial must also be a member of an independent judiciary. A military judge is detailed to every general court-martial and usu. to a special court-martial. [Cases: Military Justice 2934(3), 3346, 3374.] executory judgment (eg-zek-y;Hor-ee). (ISc) A judgment that has not been carried out, such as a yet-to-be fulfilled order for the defendant to pay the plaintiff. final appealable judgment. See final judgment. final judgment. (ISc) A court's last action that settles the rights of the parties and disposes of all issues in controversy, except for the award of costs (and, sometimes, attorney's fees) and enforcement of the judgment. Also termed final appealable judgment; final decision; final decree; definitive judgment; deter­ minative judgment;final appealable order. See FINAL­ JUDGMENT RULE. [Cases: Appeal and Error C=>76(1); Criminal Law C=,1023(2); Federal Civil Procedure C=:>2579; Federal Courts C=:>571.] foreign judgment. A decree, judgment, or order of a court in a state, country, or judicial system different from that where the judgment or its effect is at issue. [Cases: Judgment (>813-S32.7.] in personam judgment. See personal judgment. in rem judgment. See judgment in rem. interlocutory judgment (in-tar-Iok-[y]a-tor-ee). (17c) An intermediate judgment that determines a prelimi­ nary or subordinate point or plea but does not finally decide the case. _ A judgment or order given on a pro­ visional or accessory claim or contention is generally interlocutory. Also termed interlocutory decree. [Cases: Appeal and Error C=:>68; Federal Civil Pro­ cedure C=:>257S; Federal Courts Judgment C=:>216.]

irregular judgment. A judgment that may be set aside because of some irregularity in the way it was rendered, such as a clerk's failure to send a defendant notice that a default judgment has been rendered. [Cases: Judgment (>353.] judgment as a matter of law. (iS73) A judgment rendered during a jury trial either before or after the jury's verdict against a party on a given issue when there is no legally sufficient basis for a jury to find for that party on that issue.• In federal practice, the term judgment as a matter oflaw has replaced both the directed verdict and the judgment notwith­ standing the verdict. Fed. R. Civ. P. 50. Cf. SUMMARY JUDGMENT. [Cases: Federal Civil Procedure C='2111, 2601; Judgment G-=' 199; Trial 167.] judgment by confession. See CONFESSION OF JUDG­ MENT.

judgment by consent. See agreed judgment. judgment by default. See DEFAULT JUDGMENT. judgment by nil dicit. See nil-dicit default judgment under DEFAULT JUDGMENT. judgment by non sum informatus. See NO:>! SUM INFOR­ MATUS.

judgmentfor money. See money judgment. judgment homologating the tableau (ha-mahl-a­ gay-ting / ta-bloh or tab-loh). Civil law. A judgment approving a plan for distributing property of a dece­ dent's estate. _ The distribution plan is known as the tableau of distribution. La. Code Civ. Proc. art. 3307. See HOMOLOGATIOR judgment in error. See erroneous judgment. judgment in personam. See personal judgment. judgment in rem (in rem). (lSc) A judgment that deter­ mines the status or condition of property and that operates directly on the property itself. • The phrase denotes a judgment that affects not only interests in a thing but also all persons' interest in the thing. Also termed in rem judgment. rCases: Judgment C=:> S03.] judgment in retraxit. See judgment of retraxit. judgment inter partes. See personal judgment. judgment nil capiat per billa (nil kap-ee-dt par bil-a). (1816) Judgment that the plaintiff take nothing by the bill; a take-nothing judgment in a case instituted by a bill. judgment nil capiat per breve (nil kap-ee-dt pdr breev or bree-vee). (1916) Judgment that the plaintiff take nothing by the writ; a take-nothing judgment in a case instituted by a writ. judgment nisi (nI-SI). (ISc) A provisional judgment that, while not final or absolute, may become final on a party's motion. See NISI. judgment notwithstanding the verdict. (18c) A judgment entered for one party even though a jury verdict has been rendered for the opposing

judgment

920

party. Also termed judgment non obstante vere­ Abbr. dicto (non ahb-stan-tee ver-;J-dik-toh). JNOV; judgment N.O.V. See judgment as a matter of law. [Cases: Criminal LawC=:'977(4); J;ederal Civil Procedure C=:' 2601-2610; Judgment C=:' 199.] judgment nunc pro tunc. A judgment entered on a day after the time when it should have been entered, as of the earlier date. Also termed decree nunc pro tunc. See NUNC PRO TUI\C. [Cases: Federal Civil Procedure ~- ."o..:..}; Judgment C=:'273.] judgment ofacquittal. (17c) A judgment, rendered on the defendant's motion or court's own motion, that acquits the defendant of the offense charged when the evidence is insufficient. Fed. R. Crim. P. 29. See directed verdict under VERDICT. [Cases: Criminal Law

judgment of blood. See death sentence under

SEN-

TENcE.

judgment ofcassetur billa. See CASSETUR BILLA. judgment ofcassetur breve. See CASSETUR BREVE. judgment ofconviction. (1806) 1.1be written record of a criminal judgment, consisting of the plea, the verdict or findings, the adjudication, and the sentence. Fed. R. Crim. P. 32(d)(l). 2. A sentence in a criminal case. See SENTENCE. [Cases: Criminal Law C=:'990.1.] judgment ofdiscontinuance. 1. A judgment dismiss­ ing a plaintiff's action based on interruption in the proceedings occasioned by the plaintiffs failure to continue the suit at the appointed time or times. 2. NONSUIT (1). Often shortened to discontinuance. See DISCONTINUANCE. [Cases: Pretrial Procedure 501-581.] judgment ofdismissal. (1809) A final determination of a case (against the plaintiff in a civil action or the government in a criminal action) without a trial on its merits. See DISMISSAL. [Cases: Federal Civil Proce­ dure Pretrial Procedure C=:'694.j judgment of nolle prosequi (nahl-ee prahs-2116.] 2. NONSUIT (2). judgment ofrepleader. See REPLEADER. judgment of retraxit (ri-trak-sit). Hist. A judgment against a plaintiff who has voluntarily retracted the claim. - Such a judgment bars the plaintiff from reHti­ gating the claim. - Also termed judgment in retraxit. See RETRAXIT.

judgment on the merits. (18c) A judgment based on the evidence rather than on technical or procedural grounds. - Also termed decision on the merits. judgment on the pleadings. (18e) A judgment based solely on the allegations and information contained in the pleadings, and not on any outside matters. Fed. R. Civ. P. 12(c). Cf. SUMMARY JUDGMENT. [Cases: Federal Civil Procedure C=:' 1041-1068; Pleading C::= 342.] judgment on the verdict. (l7c) A judgment for the party receiving a favorable jury verdict. judgment quasi in rem (kway-sI [or -ZI] in rem). (1905) A judgment based on the court's jurisdiction over the defendant's interest in property rather than on its jurisdiction over the defendant or the property. • Such a judgment affects only particular persons' interests in a thing that is, only the persons who are named or described in the proceeding. [Cases: Judgment C=:'805.j judgment quod billa cassetur (kwod bil-;l k::l-see-tJr). (18c) Judgment that the bill be quashed.• This is a judgment for the defendant. judgment quod breve cassetur (kwod breev or bree-vee b-see-t;Jr). Judgment that the writ be quashed. - Ihis is a judgment for the defendant. judgment quod computet. See QUOD COMPUTET. judgment quod recuperet (kwod ri-kyoo-p::lr-it). Judgment that the plaintiff recover. judgment respondeat ouster (ri-spon-dee-at ows-t;lr). His!. An interlocutory judgment requiring the defen­ dant who has made a dilatory plea to give a more sub­ stantial defense. junior judgment. A judgment rendered or entered after the rendition or entry of another judgment, on a dif­ ferent claim, against the same defendant. money judgment. (1869) A judgment for damages subject to immediate execution, as distinguished from equitable or injunctive relief. - Also termed judgment for money. nunc pro tunc judgment (nilngk proh tilngk). (1828) A procedural device by which the record of a judgment is amended to accord with what the judge actually said and did, so that the record will be accurate. ­ This device is often used to correct defects in realestate titles. Federal Civil Procedure C::=2625; Judgment 326.] personal judgment. (1829) 1. A judgment that imposes personal liability on a defendant and that may there­ fore be satisfied out ofany ofthe defendant's property from within judicial reach. 2. A judgment result an action in which a court has personal jur ion over the parties. 3. A judgment against a person as distinguished from a judgment against a thing, right, or status. Also termed judgment in personam (in p;Jr-soh-n;Jm); in personam judgment;judgment inter partes (in-t::lf pahr-teez). simulated judgment. Civil law. A judgment that, although founded on an actual debt and intended

judicatory

921

for collection by the usual legal processes, is actually entered into by the parties to give one of them an undeserving advantage or to defraud third parties. stipulated judgment. See agreed judgment.

summaryjudgment. See SUMMARY JUDGMENT.

suspension ofjudgment. See STAY.

take-nothing judgment. (1938) A judgment for the

defendant providing that the plaintiff recover nothing in damages or other relief. - Also termed (in some states) no cause ofaction. valid judgment. 1. A judgment that will be recog­ nized by common-law states as long as it is in force in the state where the judgment was rendered. [Cases: Judgment (;:::>815.] 2. A judicial act rendered by a court having jurisdiction over the parties and over the subject matter in a proceeding in which the parties have had a reasonable opportunity to be heard. [Cases: Federal Civil Procedure (;:::)2393.] voidable judgment. (17c) A judgment that, although seemingly valid, is defective in some material way; esp., a judgment that, although rendered by a court having jurisdiction, is irregular or erroneous. [Cases: Judgment (;::J27, 353, SOl.] void judgment. (18c) A judgment that has no legal force or effect, the invalidity of which may be asserted by any party whose rights are affected at any time and any place, whether directly or collaterally.• From its inception, a void judgment continues to be absolutely null. It is incapable of being confirmed, ratified, or entorced in any manner or to any degree. One source of a void judgment is the lack of subject-matter juris­ diction. [Cases: Federal Civil Procedure (;::J2392; Judgment (;::J5-27, 346, 486.] judgmental immunity. See ERROR-OF-JUDGMENT RULE. judgment book. See judgment docket under DOCKET (1). judgment by comparison. Patents. Allowance of a patent claim because a similar claim has been allowed before. • lhere is no stare decisis doctrine in patent prosecu­ tions, but examiners may consider allowance of similar claims as a decision-making aid. judgment creditor. (18c) A person haVing a legal right to enforce execution of a judgment for a specific sum of money. bona fide judgment creditor. One who recovers a judgment without engaging in fraud or collusion. judgment debt. See DEBT. judgment debtor. (18c) A person against whom a money judgment has been entered but not yet satisfied. judgment docket. See DOCKET (1). judgment ex cathedra. 1. See EX CATHEDRA. 2. See JUDGMENT (1). judgment execution. 1. See EXECUTION (3). 2. See EXE­ CUTION (4). judgment file. See judgment docket under DOCKET (1).

judgment lien. See LIEN. judgment non obstante veredicto. See judgment notwith­ standing the verdict under JUDGMENT. judgment note. 1. A nonnegotiable promissory note, illegal in most states, containing a power of attorney to appear and confess judgment for a specified sum. 2. COGNOVIT NOTE. judgment N.O.V. See judgment notwithstanding the verdict under JUDGMENT. judgment of blood. See death sentence under SENTENCE. judgment of cassetur billa. See CASSETUR BILLA. judgment of cassetur breve. See CASSETUR BREVE. judgment of repleader. See REPLEADER. judgment-proof, adj. (18c) (Of an actual or potential judgment debtor) unable to satisfy a judgment for money damages because the person has no property, does not own enough property within the court's juris­ diction to satisfy the judgment, or claims the benefit of statutorily exempt property. - Also termed execution­ proof. judgment quod computet. See QUOD COMPUTET.

judgment receiver. See RECEIVER.

judgment record. See judgment docket under DOCKET

(1). judgment roll. See judgment docket under DOCKET (1). "As the pleadings constitute part of the record, it is indis­ pensable that they be filed. In some of the codes they must be filed at the institution of the action; in others, by or before the first day of the term; in others, at or before the trial. They must be used in making the 'judgment roll: and in the practice of each State (not here conSidered) procedure is provided to procure filing." Edwin E. Bryant,

The Law of Pleading Under the Codes of Civil Procedure 179 (2d ed. 1899).

judgment-roll appeal. See APPEAL.

judgment sale. See execution sale under SALE.

judgment seat. 1. The bench on which a judge sits. 2. By

extension, a court or tribunal. judgment summons. See SUMMONS. judicable (joo-di-b-bdl), adj. (17c) Rare. Capable of being adjudicated; triable; justiciable. - Also termed judiciable (joo-dish-d-bdl). judicare (joo-di-kair-ee), vb. [Latin] Civil law. To judge; to decide or determine judicially; to give judgment or sentence. judicate, vb. See ADJUDICATE. judicative (joo-di-kay-tiv or -kd-tiV), adj. Rare. See ADJU­ DICATIVE. judicator (joo-di-kay-tdr), n. (18c) A person authorized to act or serve as a judge. judicatory (joo-di-kd-tor-ee), adj. (17c) 1. Of or relating to judgment. 2. Allowing a judgment to be made; giving a decisive indication. judicatory (joo-di-b-tor-ee), n. (16c) 1. A court; any tribunal with judicial authority .

2. The administration of justice <working toward a more efficient judicatory>. judicatum solvi (joo-di-kay-t~m SOl-VI). [Latin "that the judgment will be paid"] 1. Roman law. The payment of the sum awarded by way of judgment. 2. Roman law. Security for the payment of the sum awarded by way ofjudgment.• This applied when a representative appeared on the defendant's behalf at the trial. 3. Civil law. A court-ordered caution given by the defendant in a maritime case. See CAUTION. "Judicatum salvi .... The cautioner in such an obliga­ tion is bound in payment or fulfilment of whatever may be decerned for, and he is not liberated from the obligation by the death of the principal debtor. It is a kind of caution not infrequently required. Under the civil law this caution was required of any defender who remained in posses­ sion, during the suit, of the subject which gave rise to the dispute." John Trayner, Trayner's Latin Maxims 292-93 (4th ed. 1894).

judicature (joo-di-b-ch~r). (16c) 1. The action ofjudging or of administering justice through duly constituted courts. 2. JUDICIARY (3). 3. A judge's office, function, or authority. Judicature Acts. A series of statutes that reorganized the superior courts of England in 1875.• The Judica­ ture Acts were superseded by the Supreme Court Act of 1981. judices (joo-di-seez). [Latin] pl. JUDEX. judicia (joo-dish-ee-~). [Latin] pI. JUDICIUM. judiciable, adj. See JUDICABLE. judicial (joo-dish-~l), adj. (14c) 1. Of, relating to, or by the court or a judge <judicial duty> <judicial demeanor>. 2. In court . 2. Of or relating to rights and obligations <jural relations>. jural act. See ACT. jural activity. See jural act under ACT. jural agent. (2004) An official - someone who has the appropriate authoritative status in society to enforce or affect the society's legal system - who engages in a jural act. • Common examples include judges, legisla­ tors, and police officers acting in their official capaci­ ties. See jural act under ACT. jural cause. See proximate cause under CAUSE (1). jura majestatis. See JURA.

juramentum (joor-a-men-tam), n. [Latin] Civil law. An

oath. PI. juramenta (joor-a-men-ta). juramentum calumniae (k;;-Iam-nee-ee). An oath of calumny. See oath ofcalumny under OATH. juramentum corporalis (kor-pa-ray-lis). A corporal oath. See corporal oath under OATH. juramentum in litem (in II-tern or -tam). An oath in litem. See oath in litem under OATH. juramentum judiciale (joo-dish-ee-ay-lee). An oath by which the judge defers the decision of the case to either of the parties. juramentum necessarium (nes-a-sair-ee-;lm). A neces­ sary or compulsory oath. juramentum voluntarium (vol-an-tair-ee-am). A vol­ untaryoath. jura mixti dominii. See JURA. jurant (joor-;;nt), n. Archaic. One who takes an oath. jurant, n. jura personarum. See JURA. jura praediorum. See JURA. jura regalia. See JURA. jura rerum. See JURA. jura summi imperii. See JURA. jurat (joor-at). (18c) 1. [fr. Latin jurare "to swear"] A certification added to an affidavit or deposition stating

926 when and before what authority the affidavit or depo­ sition was made .• A jurat typically says "Subscribed and sworn to before me this _ _ day of [month}, [year]," and the officer (usu. a notary public) thereby certifies three things: (1) that the person signing the document did so in the officer's presence, (2) that the signer appeared before the officer on the date indicated, and (3) that the officer administered an oath or affirma­ tion to the signer, who swore to or affirmed the contents ofthe document. - Also termed jurata. Cf. VERIFICA­ TION. [Cases: Affidavits C=::> 12.] witness jurat. A subscribing witness's certificate acknowledging the act of witnessing.• Even though this certificate is technically an acknowledgment and not a true jurat, the phrase witness jurat is commonly used. See ACKNOWLEDGMENT. 2. [fro Latinjuratus "one sworn"] In France and the Channel Islands, a municipal officer or magistrate. jurata (juu-ray-t;;), n. 1. Hist. A jury of 12 persons; esp., a jury existing at common law. 2. JURAT (1). juration (juu-ray-shan). Archaic. 1. The act of adminis­ tering an oath. 2. The act of swearing on oath. jurative. See JeRATORY. jurator Ouu-ray-t;;r). Archaic. See JUROR. juratorial (joor-;;-toh-ri-;ll) adj. Of or pertaining to a jury. juratory (joor-a-tor-ee), adj. Of, relating to, or contain­ ing an oath. - Also termed jurative. juratory caution. 1. Maritime law. A court's permission for an indigent to disregard filing fees and court costs. • A suit upon a juratory caution is the equivalent of a suit in forma pauperis. The right was first recognized in United States admiralty courts in Bradford V. Bradford, 3 F. Cas. 1129 (1878). See IN FORMA PAUPERIS. [Cases: Admiralty C=::> 123.] 2. Scots law. A security given on oath, such as a bond. jure (joor-ee), adv. [Latin]!. By right; in right. 2. By law. See DE JURE. jure accessionis (joor-ee ak-sesh-ee-oh-nis). By the law of natural accession .• For example, the fruits of trees on one's land are one's property jure accessionis. jure accretionis (;;-kree-shee-oh-nis). By right of accre­ tion. jure belli (bel-I). By the right or law of war. jure civili (s;)-vI-h). By the civil law. jure coronae (ka-roh-nee). In right of the Crown. jure devolution is (dev-;l-loo-shee-oh-nis). By right of devolution. jure divino (di-Vl-noh). By divine right. jure ecclesiae (e-klee-z[hlee-ee). By right of the church. jure gentium (jen-shee-;lm). By the law of nations. jure officii (a-fish-ee-I). By right of office. jure proprietatis (pra-pn-;)-tay-tis). By right of property.

jurisdiction

927

jure proprio (proh-pree-oh). By one's own proper right.

jure repraesentationis (rep-r,,-zen-tay-shee-oh-nis). By right of representation; in the right of another person. jure sanguinis (sang-gwi-nis). By right ofblood.

jure uxoris ( 1.] 2. A court's power to decide a case or issue a decree . - Also termed (in sense 2) competent jurisdiction.; (in both senses) coram judice. [Cases: Courts C-=> 3; Federal Courts C=> 3.1, 161.] "Rules of jurisdiction in a sense speak from a position outside the court system and prescribe the authority of the courts within the system. They are to a large extent constitutional rules. The provisions of the U.S. Constitution specify the outer limits of the subject-matter jurisdiction of the federal courts and authorize Congress, within those limits, to establish by statute the organization and jurisdic· tion of the federal courts. Thus, Article III of the Consti­ tution defines the judicial power of the United States to include cases arising under federal law and cases between parties of diverse state citizenship as well as other catego­ ries. The U.S. Constitution, particularly the Due Process Clause, also establishes limits on the jurisdiction of the state courts. These due process limitations traditionally operate in two areas: jurisdiction of the subject matter and jurisdiction over persons. Within each state, the court system is established by state constitutional provisions or by a combination of such provisions and implementing leg­ islation, which together define the authority of the various courts Within the system." Fleming James Jr., Geoffrey C. Hazard Jr. & John leubsdorf. Civil Procedure § 2.1, at 55 (5th ed. 2001).

928

jurisdiction

3. A geographic area within which political or judicial authority may be exercised . 4. A political or judicial subdivision within such an area . Cf. VENUE. - jurisdictional,

adj. agency jurisdiction. The regulatory or adjudicative power of a government administrative agency over a subject matter or matters. [Cases: Administrative Law and Procedure ~303, 447.]

ancillary jurisdiction. (1835) A court's jurisdiction to adjudicate claims and proceedings related to a claim that is properly before the court. • For example, if a plaintiff brings a lawsuit in federal court based on a federal question (such as a claim under Title VII), the defendant may assert a counterclaim over which the court would not otherwise have jurisdiction (such as a state-law claim of stealing company property). The concept of ancillary jurisdiction has now been codified, along with the concept of pendent juris­ diction, in the supplemental-jurisdiction statute. 28 USCA § 1367. See supplemental jurisdiction. Cf. pendent jurisdiction. [Cases: Admiralty ~ 1(3); Courts ~27, 201; Equity ~35; Federal Courts ~20.]

anomalous jurisdiction. (1864) 1. Jurisdiction that is not granted to a court by statute, but that is inherent in the court's authority to govern lawyers and other officers ofthe court, such as the power to issue a prein­ dictment order suppressing illegally seized property. [Cases: Criminal Law ~394.5(1); Federal Courts ~7; Searches and Seizures ~84.] 2. An appellate court's provisional jurisdiction to review the denial of a motion to intervene in a lower-court case, so that if the court finds that the denial was correct, then its jurisdiction disappears - and it must dismiss the appeal for want of jurisdiction - because an order denying a motion to intervene is not a final, appeal­ able order. See ANOMALOUS-JURISDICTION RULE. [Cases: Federal Courts ~555.] appellate jurisdiction. (18c) The power of a court to review and revise a lower court's decision.• For example, U.S. Const. art. III, § 2 vests appellate jurisdiction in the Supreme Court, while 28 USCA §§ 1291-1295 grant appellate jurisdiction to lower federal courts of appeals. Cf. original jurisdiction. [Cases: Appeal and Error ~ 17; Courts ~203-209; Federal Courts ~541.] arising-in jurisdiction. A bankruptcy court's juris­ diction over issues relating to the administration of the bankruptcy estate, and matters that occur only in a bankruptcy case. 28 USCA §§ 157, 1334. [Cases: Bankruptcy ~2043-2063.]

assistant jurisdiction. The incidental aid provided by an equity court to a court oflaw when justice requires both legal and equitable processes and remedies. ­ Also termed auxiliary jurisdiction.

common-law jurisdiction. 1. A place where the legal system derives fundamentally from the English common-law system <England, the United States, Australia, and other common-law jurisdictions>. 2. A court's jurisdiction to try such cases as were cogni­ zable under the English common law . complete jurisdiction. A court's power to decide matters presented to it and to enforce its decisions. [Cases: Admiralty ~5(3); Courts ~ 1; Equity ~ 39.] concurrent jurisdiction. (l7c) 1. Jurisdiction that might be exercised simultaneously by more than one court over the same subject matter and within the same ter­ ritory, a litigant having the right to choose the court in which to file the action. [Cases: Admiralty ~ 1(1); Courts ~472, 489, 510; Federal Courts ~ 1131.] 2. Jurisdiction shared by two or more states, esp. over the physical boundaries (such as rivers or other bodies of water) between them. - Also termed coordinate jurisdiction; overlapping jurisdiction. Cf. exclusive

jurisdiction. "In several cases, two States divided by a river exercise concurrent jurisdiction over the river, no matter where the inter·state boundary may be; in some cases by the Ordi· nance of 1787 for organizing Territories northwest of the Ohio River, in some cases by Acts of Congress organizing Territories or admitting States, and in some cases byagree­ ments between the States concerned." 1 Joseph H. Beale, A Treatise on the Conflict of Laws § 44.3, at 279 (1935).

consent jurisdiction. (1855) Jurisdiction that parties have agreed to, either by accord, by contract, or by general appearance .• Parties may not, by agreement, confer subject-matter jurisdiction on a federal court that would not otherwise have it. [Cases: Courts ~ 22.] contentious jurisdiction. 1. A court's jurisdiction exercised over disputed matters. 2. Eccles. law. The branch of ecclesiastical-court jurisdiction that deals with contested proceedings.

continuing jurisdiction. (1855) A court's power to retain jurisdiction over a matter after entering a judgment, allowing the court to modify its previous rulings or orders. See CONTINUING-JURISDICTION DOCTRINE. [Cases: Courts ~30; Federal Courts ~26.1.]

coordinate jurisdiction. See concurrent jurisdiction. criminal jurisdiction. (16c) A court's power to hear criminal cases. [Cases: Criminal Law ~83.]

default jurisdiction. Family law. In a child-custody matter, jurisdiction conferred when it is in the best interests of the child and either (1) there is no other basis for jurisdiction under the Uniform Child Custody Jurisdiction Act or the Parental Kidnap­ ping Prevention Act, or (2) when another state has declined jurisdiction in favor of default jurisdiction. • Jurisdiction is rarely based on default because either home-state jurisdiction or significant-connection

jurisdiction

929

jurisdiction almost always applies, or else emergency jurisdiction is invoked. Default jurisdiction arises only if none of those three applies, or a state with jurisdiction on any ofthose bases declines to exercise it and default jurisdiction serves the best interests of the child. [Cases: Child Custody C=>730, 731.] delinquency jurisdiction. The power of the court to hear matters regarding juvenile acts that, if commit­ ted by an adult, would be criminaL Cf. status-offense jurisdiction. [Cases: Infants'C=> 196.] diversity jurisdiction. (1927) A federal court's exercise of authority over a case involving parties who are citizens of different states and an amount in contro­ versy greater than a statutory minimum. 28 USCA § 1332. See DIVERSITY OF CITIZENSHIP; AMOUNT IN CONTROVERSY. [Cases: Federal Courts (;::::281-360.] emergency jurisdiction. Family law. A court's ability to take jurisdiction of a child who is phYSically present in the state when that child has been abandoned or when necessary to protect the child from abuse. - Section 3(a)(3) of the Uniform Child Custody Jurisdiction Act allows for emergency jurisdiction. It is usu. tempo­ rary, lasting only as long as is necessary to protect the child. [Cases: Child CustodyC=>753.] equity jurisdiction. (lSc) In a common-law judicial system, the power to hear certain civil actions accord­ ing to the procedure of the court of chancery, and to resolve them according to equitable rules. [Cases: Equity Federal Courts C=>7.J "[Tlhe term equity jurisdiction does not refer to jurisdiction in the sense of the power conferred by the sovereign on the court over specified subject·matters or to jurisdiction over the res or the persons of the parties in a particular proceeding but refers rather to the merits. The want of equity jurisdiction does not mean that the court has no power to act but that it should not act, as on the ground, for example, that there is an adequate remedy at law." William Q. de Funiak, Handbook of Modern Equity 38 (2d ed.1956).

exclusive jurisdiction. (lSc) A court's power to adju­ dicate an action or class of actions to the exclusion of all other courts . Cf. concurrent jurisdiction. [Cases: Courts ~"-::J472, 4S9, 510; Equity Federal 1131.J Courts extraterritorial jurisdiction. (ISIS) A court's ability to exercise power beyond its territorial limits. See LONG-ARM STATUTE. [Cases: Courts Federal Courts federal jurisdiction. (1S00) 1. The exercise of federal­ court authority. [Cases: Federal Courts C:";)3.1.] 2. The area of study dealing with the jurisdiction of federal courts. federal-juvenile-delinquency jurisdiction. A federal court's power to hear a case in which a person under the age of IS violates federal law. - In such a case, the federal court derives its jurisdictional power from 18 USCA §§ 5031 et seq. The Act severely limits the scope of federal-juvenile-delinquency jurisdiction because

Congress recognizes that juvenile delinquency is essentially a state issue. The acts that typically invoke federal jurisdiction are (I) acts committed on federal lands (military bases, national parks, Indian reserva­ tions), and (2) acts that violate federal drug laws or other federal criminal statutes. federal-question jurisdiction. (I941) The exercise of federal-court power over claims arising under the U.S. Constitution, an act of Congress, or a treaty 28 USCA § 1331. [Cases: Federal Courts C=> 161-247.J foreign jurisdiction. (l6c) 1. The powers of a court of a sister state or foreign country. 2. Extraterritorial process, such as long-arm service of process. general jurisdiction. (16c) 1. A court's authority to hear a wide range of cases, civil or criminal, that arise within its geographic area. [Cases: Courts 117.5-158.1; Federal Courts ~3.1, 76.5.]2. A court's authority to hear all claims against a defendant, at the place of the defendant's domicile or the place of service, without any showing that a connection exists between the claims and the forum state. Cf. limited jurisdiction; specific jurisdiction. [Cases: Courts 12(2.5); Federal Courts C=>76.1O.J general personal jurisdiction. Jurisdiction arising when a person's continuous and systematic contacts with a forum state enable the forum state's courts to adjudicate a claim against the person, even when the claim is not related to the person's contacts with the forum state. Cf. personal jurisdiction; specific personal jurisdiction. [Cases: Courts 12(2.5); Federal Courts home-state jurisdiction. Family law. In interstate child­ custody disputes governed by the Uniform Child Custody Jurisdiction and Enforcement Act, jurisdic­ tion based on the child's having been a resident of the state for at least six consecutive months immedi­ ately before the commencement ofthe suit. See HOME STATE. [Cases: Child Custody in personam jurisdiction. See personal jurisdiction. in rem jurisdiction (in rem). (1930) A court's power to adjudicate the rights to a given piece of property, including the power to seize and hold it. - Also termed jurisdiction in rem. See IN REM. Cf. personal jurisdiction; subject-matter jurisdiction. [Cases: Courts C=;'18-19; Federal Courts international jurisdiction. A court's power to hear and determine matters between different countries or persons of different countries. judicial jurisdiction. The legal power and authority of a court to make a decision that binds the parties to any matter properly brought before it. jurisdiction in personam. See personal jurisdiction. jurisdiction in rem. See in rem jurisdiction. jurisdiction loci. See spatial jurisdiction. jurisdiction ofthe person. See personal jurisdiction. jurisdiction over the person. See personal jurisdiction.

jurisdiction

jurisdiction quasi in rem. See quasi-In-rem jurisdic­ tion. jurisdiction ratione materiae. See subject-matter juris­ diction. jurisdiction ratione personae. See personal jurisdic­ tion. jurisdiction ratione temporis. See temporal jurisdic­ tion. legislative jurisdiction. A legislature's general sphere of authority to enact laws and conduct all business related to that authority, such as holding hearings. [Cases: States limited jurisdiction. (I6c) Jurisdiction that is confined to a particular type of case or that may be exercised only under statutory limits and prescriptions. Also termed speCial jurisdiction. Cf. general jurisdiction. [Cases: Courts ~ 159; Federal Courts ~5.] "It is a principle of first importance that the federal courts are courts of limited jurisdiction .... The federal courts ... cannot be courts of general jurisdiction. They are empow­ ered to hear only such cases as are within the judicial power of the United States, as defined in the Constitution, and have been entrusted to them by a jurisdictional grant by Congress." Charles Alan Wright, The Law of Federal Courts § 7, at 27 (5th ed. 1994).

long-arm jurisdiction. Jurisdiction over a nonresident defendant who has had some contact with the juris­ diction in which the petition is filed. [Cases: Courts C::::o 12(2); Federal Courts original jurisdiction. (17c) A court's power to hear and decide a matter before any other court can review the matter. Cf. appellate jurisdiction. [Cases: Courts ~ 117.5-158.1,206; Federal Courts ~3.1.] overlappingjurisdiction. See concurrent jurisdiction. pendentjurisdiction (pen-d~nt). (1942) A court's juris­ diction to hear and determine a claim over which it would not otherwise have jurisdiction, because the claim arises from the same transaction or occurrence as another claim that is properly before the court. • For example, if a plaintiff brings suit in federal court claiming that the defendant, in one transaction, violated both a federal and a state law, the federal court has jurisdiction over the federal claim (under federal-question jurisdiction) and also has jurisdic­ tion over the state claim that is pendent to the federal claim. Pendent jurisdiction has now been codified as supplemental jurisdiction. 28 USCA § 1367. - Also termed pendent-claim jurisdiction. See supplemental jurisdiction. Cf. ancillary jurisdiction. [Cases: Courts Cr~27; Equity Federal Courts Cr'-:::>14.] pendent-party jurisdiction. (1973) A court's jurisdic­ tion to adjudicate a claim against a party who is not otherwise subject to the court's jurisdiction, because the claim by or against that party arises from the same transaction or occurrence as another claim that is properly before the court. • Pendent-party juris­ diction has been a hotly debated subject, and was severely limited by the U.S. Supreme Court in Finley v. United States, 490 U.S. 545, 109 S.Ct. 2003 (1990).

930 The concept is now codified in the supplemental­ jurisdiction statute, and it applies to federal-question cases but not to diversity-jurisdiction cases. 28 USCA § 1367. Neither pendent-party jurisdiction nor supple­ mental jurisdiction may be used to circumvent the complete-diversity requirement in cases founded on diversity jurisdiction. See supplemental jurisdiction. [Cases: Federal Courts ~'23.] personal jurisdiction. A court's power to bring a person into its adjudicative process; jurisdiction over a defendant's personal rights, rather than merely over property interests. Also termed in personam jurisdiction; jurisdiction in personam; jurisdiction of the person; jurisdiction over the person; jurisdiction ratione personae. See IN PERSONAM. Cf. in rem juris­ diction; general personal jurisdiction; specific personal Constitutional jurisdiction. [Cases: Admiralty Law ~3963-3965; Courts ~ 10; Federal Courts ~71-97.1

plenary jurisdiction (plee-n~-ree or plen-;>-ree). A court's full and absolute power over the subject matter and the parties in a case. primaryjurisdiction. The power of an agency to decide an issue in the first instance when a court, having concurrent jurisdiction with the agency, determines that it would be more pragmatic for the agency to handle the case initially. See PRIMARY-JURISDICTION DOCTRINE. [Cases: Administrative Law and Proce­ dure~3228.1.]

'The doctrine of primary jurisdiction typically is raised, not in a proceeding before an administrative agency, but in litigation before a court. Agency and court jurisdiction to resolve disputes and issues frequently overlap. Primary jurisdiction is a concept used by courts to allocate initial decision-making responsibility between agencies and courts where such overlaps exist... , A holding that an agency has primary jurisdiction to resolve an issue raised in ajudicial proceeding has two important consequences. First, it transfers some of the power to resolve that issue to the agency.... Second, if the issues referred to the agency as within its primary jurisdiction are critical to judicial resolution of the underlying dispute, the court cannot proceed with the trial of the case until the agency has resolved those issues and the agency's decision has been either affirmed or reversed by a reviewing court." Richard j. Pierce Jr. et aI., Administrative Law Process 206, 20708 (3d ed. 1999).

probate jurisdiction. Jurisdiction over matters relating to wills, settlement ofdecedents' estates, and (in some states) guardianship and the adoption of minors. 198; Federal Courts ~9.] [Cases: Courts prorogated jurisdiction. Civil law. Jurisdiction con­ ferred by the express consent of all the parties on a judge who would otherwise be disqualified. Cf. tacit prorogation under PROROGATION. quasi-in-rem jurisdiction (kway-sI in rem or kway-zI). (1918) Jurisdiction over a person but based on that person's interest in property located within the court's territory. - Also termed jurisdiction quasi in rem. See quasi in rem under IN REM. [Cases: Courts 16; Federal Courts (';:;:>93.]

.j

931

significant-connection jurisdiction. Family law. In a child-custody matter, jurisdiction based on (1) the best interests of the child, (2) at least one parent's (or litigant's) significant connection to the state, and (3) the presence in the state of substantial evidence about the child's present or future care, protection, training, and personal relationships. _ This type of jurisdic­ tion is conferred by both the Uniform Child Custody Jurisdiction Act and the Parental Kidnapping Pre­ vention Act. Generally, the home state will also be the state with Significant connections and substantial evidence. Jurisdiction based on a Significant connec­ tion or substantial evidence alone is conferred only when the child has no home state. Also termed significant-connectionlsubstantial-evidence jurisdic­ tion; significant connection-substantial evidence juris­ diction; substantial-evidence jurisdiction. See HOME STATE. [Cases: Child Custody (;::::J735.] spatial jurisdiction. Jurisdiction based on the physical territory that an entity's authority covers. Also termed jurisdiction loci. special jurisdiction. See limited jurisdiction. specific jurisdiction. (1828) Jurisdiction that stems from the defendant's having certain minimum contacts with the forum state so that the court may hear a case whose issues arise from those minimum contacts. Cf. general jurisdiction. [Cases: Courts 12(2.10); Federal Courts (;::::J76.1O.] specific personal jurisdiction. Jurisdiction based on a person's minimum contacts with the forum state when the claim arises out of or is related to those contacts. See MINIMUM CONTACTS. Cf. personal juris­ diction; general personal jurisdiction. [Cases: Courts G=-12(2.1O); Federal Courts (;::::J76.1O.) state jurisdiction. 1. The exercise of state-court author­ ity. 2. A court's power to hear all matters, both civil and criminal, arising within its territorial boundar­ ies. status-offense jurisdiction. The power of the court to hear matters regarding noncriminal conduct com­ mitted by a juvenile. See status offense under OFFENSE (l). Cf. delinquency jurisdiction. subject-matterjurisdiction. (1936) Jurisdiction over the nature of the case and the type of relief sought; the extent to which a court can rule on the conduct of persons or the status of things. - Also termed jurisdiction of the subject matter; jurisdiction of the cause;jurisdiction over the action;jurisdiction ratione materiae. Cf. personal jurisdiction. [Cases: Courts (;::::J 4; Federal Courts C=~'3.1.1 summary jurisdiction. (18c) 1. A court's jurisdiction in a summary proceeding. 2. The court's authority to issue a judgment or order (such as a finding of contempt) without the necessity of a trial or other process. 3. English law. A court's power to make an order immediately, without obtaining authority or referral, as in a magistrate's power to dispose of a

jurisdiction clause I

criminal case without referring it to the Crown Court for a formal trial or without drawing a jury. supplemental jurisdiction. (1836) Jurisdiction over a claim that is part of the same case or controversy as another claim over which the court has original juris­ diction.• Since 1990, federal district courts have had supplemental jurisdiction which includes jurisdic­ tion over both ancillary and pendent claims. 28 USCA § 1367. See ancillary jurisdiction; pendent jurisdiction. [Cases: Courts (;::::J27; EquityG':::::>35; Federal Courts G:=' 14.J temporal jurisdiction. Jurisdiction based on the court's having authority to adjudicate a matter when the underlying event occurred. - Also termed jurisdic­ tion ratione temporis. territorial jurisdiction. 1. Jurisdiction over cases arising in or involVing persons residing within a defined territory. [Cases: Courts C=:->29, 171; Federal Courts (;::::J71.] 2. Territory over which a government, one of its courts, or one of its subdivisions has juris­ diction. transient jurisdiction (tran-shant). Personal jurisdic­ tion over a defendant who is served with process while in the forum state only temporarily (such as during travel). [Cases: Courts G~' 13.] voluntary jurisdiction. 1. Jurisdiction exercised over unopposed matters. 2. Eccles. law. Jurisdic­ tion that does not require a judicial proceeding, as with granting a license or installing a nominee to a benefice. jurisdictional amount. See AMOUNT IN CONTROVERSY. jurisdictional discovery. See DISCOVERY. jurisdictional fact. See FACT. jurisdictional-fact doctrine. Administrative law. The principle that if evidence is presented challenging the factual findings that triggered an agency's action, then a court will review the facts to determine whether the agency had authority to act in the first place. - This doctrine is generally no longer applied. Cf. CONS'fITU­ TIONAL-FACT DOCTRINE. [Cases: Administrative Law and Procedure C='795.j jurisdictional gerrymandering. See GERRYMANDER­ ING (2). jurisdictional limits. (1800) The geographic boundaries or the constitutional or statutory limits within which a court's authority may be exercised. jurisdiction loci. See spatial jurisdiction under JURIS­ DICTION. jurisdictional plea. See PLEA (3). jurisdictional statement. See JURISDICTION CLAUSE (1). jurisdictional strike. See STRIKE. jurisdiction clause. (1861) 1. At law, a statement in a pleading that sets forth the court's jurisdiction to act in the case. Also termed jurisdictional statement. 2. Equity practice. The part of the bill intended to show that the court has jurisdiction, usu. by an averment

jurisdiction in personam

that adequate relief is unavailable outside equitable channels. jurisdiction in personam. See personal jurisdiction under JURISDICTION. jurisdiction in rem. See in rem jurisdiction under JURIS­ DICTIO)'!.

jurisdiction is fundandae (joor-is-dik-shee-oh-nis f;m­ dan-dee). [Law Latin] Scots law. For the purpose of founding jurisdiction. See ARRESTUM rURISDICTIONIS FUNDANDAE CAUSA.

jurisdiction of the cause. See subject-matter jurisdiction under JURISDICTION. jurisdiction of the person. See personal jurisdiction under JURISDICTION. jurisdiction of the subject matter. See subject-matter jurisdiction under JURISDICTION. jurisdiction over the action. See subject-matter jurisdic­ tion under JURISDICTION. jurisdiction over the person. See personal jurisdiction under JURISDICTION. jurisdiction quasi in rem. See quasi-in-rem jurisdiction under JURISDICTION. jurisdiction ratione materiae. See subject-matter juris­ diction under JURISDICTION. jurisdiction ratione personae. See personal jurisdiction under JURISDICTION. jurisdiction ratione temporis. See temporal jurisdiction under JURISDICTION. jurisdictio 1'oluntaria (joor-is-dik-shee-oh vol-;m-tair­ ee-,,). [Latin] Roman law. Voluntary jurisdiction. See voluntary jurisdiction under JURISDICTION. Juris Doctor (joor-is dok-t='89.] jurisprudence ofconceptions. (1908) The extension of a maxim or definition, usu. to a logical extreme, with relentless disregard for the consequences.• The phrase appears to have been invented by Roscoe Pound. See Mechanical Jurisprudence, 8 Colum. L. Rev. 605, 608 (1908)_ normative jurisprudence. See NATURAL LAW (2).

particular jurisprudence. (I8c) The scholarly study of the legal system within a particular jurisdiction, the focus being on the fundamental assumptions of that system only. positivist jurisprudence. (1931) A theory that denies validity to any law that is not derived from or sanc­ tioned by a sovereign or some other determinate source. Also termed positivistic jurisprudence. sociological jurisprudence. (1907) A philosophical approach to law streSSing the actual social effects of legal institutions, doctrines, and practices.• This influential approach was started by Roscoe Pound in 1906 and became a precursor to legal realism. - Also termed sociology oflaw. See LEGAL REALISM. systematic jurisprudence. See expository jurispru­ dence. therapeutic jurisprudence. The study of the effects of law and the legal system on the behavior, emotions, and mental health ofpeople; esp., a multidisciplinary examination of how law and mental health interact. • This discipline originated in the late 1980s as an academic approach to mental-health law. jurisprudent, n. (17c) A person learned in the law; a spe­ cialist in jurisprudence. - Also termed jurisprude. jurisprudentia generalis. See general jurisprudence (1) under JURISPRUDENCE. jurisprudential (joor-is-proo-den-sh;}l), adj. Of or relating to jurisprudence. jurisprudentia naturalis. See JURISPRUDENCE (1). jurisprudentia universalis. See general jurisprudence (2) under JURISPRUDENCE. juris publici. See JURIS. jurist. (ISc) 1. A person who has thorough knowledge of the law; esp., a judge or an eminent legal scholar. ­ Also termed legist. 2. JURISPRUDENT. juristic, adj. (1831) 1. Of or relating to a jurist <juristic literature>. 2. Of or relating to law . Also termed juristical. juristic act. See act in the law under ACT. juristic person. See artificial person under PERSON (3). Juris utriusque Doctor. See J.U.D. juror (joor-;-Jr also joor-or). (14c) A person serving on a jury panel. - Also formerly termed layperson. grand juror. A person serving on a grand jury. petitjuror (pet-ee). A trial jUfor, as opposed to a grand juror. presidingjuror. The juror who chairs the jury during deliberations and speaks for the jury in court by announcing the verdict. • The presiding juror is usu. elected by the jury at the start ofdeliberations. - Also termed foreman;foreperson;{in Scots law) jury chan­ cellor. [Cases: Jury C:::> 147.]

juror misconduct

stealth juror. A juror, esp. one in a high-profile case, who deliberately fails to disclose a relevant bias in order to qualify as a juror and bases a decision on that bias rather than on the facts and law.• Although a stealth juror may be fined or prosecuted for perjury based on a lie or omission, the usual penalty is only removal from the jury. tales-juror (tay-leez- or taylz-joor-2173; Trial (;=> 133.6(2), 207, 208.] 2. A judge's instruction for the jury not to be influenced by outside factors and not to talk to anvone about the case while the trial is in progress. [Case~: Criminal LawC=>768, 852; Federal Civil Procedure (;=>2173; Trial (;:=>201, 217.J conscious-avoidance instruction. See willful-blindness instruction. curative instruction. (1890) A judge's instruction that is intended to correct an erroneous instruction. [Cases: Federal Civil Procedure Trial (;=>296.] deliberate-indifference instruction. See JEWELL IN­ STRUCTION.

disparaging instruction. A jury charge that discredits or defames a party to a lawsuit. formula instruction. (1927) A jury charge derived from a standardized statement ofthe law on which the jury must base its verdict. further instruction. See additional instruction. general instruction. Any jury instruction that does not present a question or issue to be answered. Jewell instruction. See JEWEI.L INSTRUCTION. mandatory instruction. (1895) An instruction requir­ ing a jury to find for one party and against the other if the jury determines that, based on a preponderance of the evidence, a given set offacts exists. - Also termed binding instruction. [Cases: Trial (;:=234(3, 4), 253.] model jury instruction. (1964) A form jury charge usu. approved by a state bar association or similar group regarding matters arising in a typical case.• Courts usu. accept model jury instructions as authorita­ tive. Also termed pattern jury instruction; pattern jury charge; modeljury charge. [Cases: Criminal Law (;=>805(1); Federal Civil Procedure (;=>2173.1; Trial (;=>228(1).] ostrich instruction. (1966) Criminal procedure. Slang. An instruction stating that a defendant who delib­ erately avoided acquiring actual knowledge can be found to have acted knOWingly. Cf. JEWELL INSTRUC­ TION. [Cases: Criminal Law (;=>772(5).]

936

jury list

pattern jury instruction. See model jury instruction. peremptory instruction. (1829) A court's explicit direc­ tion that a jury must obey, such as an instruction to return a verdict for a particular party. See directed verdict under VERDICT. [Cases: Federal Civil Proce­ dure C=>2173.1, 2174; Trial C=> 167,234,253.] single-juror instruction. (1980) An instruction stating that if any juror is not reasonably satisfied with the plaintiff's evidence, then the jury cannot render a verdict for the plaintiff. special instruction. (1807) An instruction on some par­ ticular point or question involved in the case, usu. in response to counsel's request for such an instruc­ tion. - Also termed special charge. standard instruction. (1914) A jury instruction that has been regularly used in a given jurisdiction. willful-blindness instruction. An instruction that an otherwise culpable defendant may be held account­ able for a crime if the defendant deliberately avoided finding out about the crime. - Also termed con­ scious-avoidance instruction. [Cases: Criminal Law C=>772(5).] jury list. A list of persons who may be summoned to serve as jurors. [Cases: Jury C=>60.] juryman. Archaic. See JUROR. jury nullification. (1982) A jury's knowing and deliber­ ate rejection of the evidence or refusal to apply the law either because the jury wants to send a message about some social issue that is larger than the case itself or because the result dictated by law is contrary to the jury's sense of justice, morality, or fairness. Cf. verdict contrary to law under VERDICT; rogue jury under JURY. [Cases: Criminal Law C=>731; Trial C=> 128,304.] jury of indictment. See GRAND JURY. jury-packing. (1887) The act or an instance of contriv­ ing to have a jury composed of persons who are pre­ disposed toward one side or the other. - Also termed packing a jury. Cf. EMBRACERY; JURY-FIXING. jury panel. See VENIRE (1). jury pardon. (1974) A rule that permits a jury to convict a defendant of a lesser offense than the offense charged if sufficient evidence exists to convict the defendant of either offense. jury pool. See VENIRE (1). jury process. (18c) 1. The procedure by which jurors are summoned and their attendance is enforced. [Cases: Jury C=>67.] 2. The papers served on or mailed to poten­ tial jurors to compel their attendance. jury question. (18c) 1. An issue offact that a jury decides. See QUESTION OF FACT. [Cases: Federal Civil Procedure C=>2141.] 2. A special question that a court may ask a jury that will deliver a special verdict. See special inter­ rogatory under INTERROGATORY. [Cases: Federal Civil Procedure C=>2231; Trial C=>350.] jury sequestration. See SEQUESTRATION (8).

jury service. See JURY DUTY. jury shuffle. Texas law. A process for rearranging a venire whereby the cards with the veniremembers' names on them are shuffled so that the veniremembers will be seated in a different order.• The prosecution and the defense may each request a jury shuffle once before voir dire begins. No reason for the request need be given. After voir dire begins, neither party may request a shuffle. [Cases: Jury C=>64.] jury summation. See CLOSING ARGUMENT. jury-tampering. See EMBRACERY. jury trial. See TRIAL. jury waiver. See WAIVER (2). jury wheel. (1873) A physical device or electronic system used for storing and randomly selecting names of potential jurors. [Cases: Jury C=>65.] jurywoman. Archaic. A female juror; esp., a member of a jury of matrons. See jury of matrons under JURY. jus (j;)S also joos oryoos), n. [Latin "law, right"] 1. Law in the abstract. 2. A system oflaw. 3. A legal right, power, or principle. 4. Roman law. Man-made law.• The term usu. refers to a right rather than a statute. - Abbr. J. ­ Also spelled ius. Cf. FAS. PI. jura Ooor-;) also yoor-;)). "Ius, when used in a general sense, answers to our word Law in its widest acceptation. It denotes, not one particular law nor collection of laws, but the entire body of principles, rules, and statutes, whether written or unwritten, by which the public and the private rights, the duties and the obliga­ tions of men, as members of a community, are defined, inculcated, protected and enforced." William Ramsay, A Manual of Roman Antiquities 285-86 (Rodolfo Lanciani ed., 15th ed. 1894).

jus abstinendi (j;)S ab-st;)-nen-dI), n. [Law Latin "right of abstaining"] Roman & civil law. The right of an heir to renounce or decline an inheritance, as when it would require taking on debt. jus abutendi (j;)S ab-y;)-ten-dI), n. [Latin "right of abusing"] Roman & civil law. The right to make full use of property, even to the extent ofwasting or destroying it. Cf. IUS UTENDI. jus accrescendi (j;)S ak-r;)-sen-dI), n. [Latin "right of accretion"] A right of accrual; esp., the right of survi­ vorship that a joint tenant enjoys. See RIGHT OF SUR­ VIVORSHIP. Cf. JUS NON DECRESCENDI. [Cases: Joint Tenancy C=>6.] jus actionis (j;)S ak-shee-oh-nis). [Latin] Scots law. A right of action. jus actus (j;)S ak-t;)s). [Latin] Roman law. A rural servi­ tude giving a person the right of passage for a carriage or cattle. See ACTUS (3). jus administrationes (j;)S ad-mi-ni-stray-shee-oh-neez). [Latin] Scots law. Hist. The outmoded right by which a husband had unfettered control of his wife's heritable property. jus ad rem (j;)S ad rem), n. [Law Latin "right to a thing"] A right in specific property arising from another person's

937

jus commune

duty and valid only against that person; an inchoate or incomplete right to a thing. Cf. JUS IN RE. jus aedilium OdS ee-dil-ee-dm). [Latin "law of the aediles"] Roman law. The body of law developed through the edicts of aediles. - Also termed jus aedi­ licium (jas ee-dI-Iish-ee-am). See AEDILE; JUS HOKO­ RARIUM.

Jus Aelianum

(jdS ee-lee-ay-nam). [Latin) Roman law. A manual oflaws drawn up in the second century B.C. by the consul Sextus Aelius, consisting of three parts: (1) the laws of the Twelve Tables; (2) a commentary on them; and (3) the forms of procedure. See TWELV~ TABLES.

jus aequum OdS ee-kwam). [Latin "law that is equal or fair"] Roman law. Law characterized by equity, flexibil­ ity, and adaptation to the circumstances ofa particular case. Cf. JUS STRICTUM. jus aesneciae (jdS ees-neesh-ee-ee). [Latin] Hist. The right of primogeniture. - Also spelled esneciae. jus agendi (jas a-jen-dl). [Latin] Scots law. One's power to take action to pursue one's rights. jus albanagii (jas al-bd-nay-jee-l), n. [Law Latin "confis­ cating the goods of aliens"] See DROIT D'AUBAINE. jus albinatus (jas al-bi-nay-tas), n. [Law Latin "right of alien confiscation"] See DROIT D'AUBAINE. jus angariae (jdS ang-gair-ee-ee), n. [Latin "right of angary"] See AKGARY.

jus antiquum (jas an-tI-kwam). [Latin] Roman law. The old law. - Also termed jus vetus. Cf. JUS NOVUM. "In the later Empire (which dates from the fourth century) there were two groups of sources of law: first, the 'jus vetus', or 'jus' simply, i.e. the old traditional law, the devel­ opment of which was completed in the classical period of Roman jurisprudence (in the course of the second and the beginning of the third century); secondly, the 'leges' or 'jus novum', i.e. the later law which had sprung from imperial legislation. These two classes of law, 'jus' and 'leges', mutually supplementing each other, constituted the whole body of law as it existed at the time, and, taken together, represented the result of the entire development of Roman law from the earliest times down to ... the epoch of the later Empire." Rudolph $ohm, The Institutes: A Textbook of the History and System of Roman Private Law 116-17 Uames Crawford Ledlie trans., 3d ed. 1907).

jus apparentiae (jas ap- . Keeper of the Briefs. See CUSTOS BREVIUM. Keeper of the Broad Seal. See KEEPER OF THE GREAT SEAL.

Keeper of the Great Seal. In England and Scotland, an officer who has custody of the Great Seal and who authenticates state documents of the highest impor­ tance.• In England, the duties of the Keeper of the Great Seal are now discharged by the Lord Chancel­ lor. Also termed Lord Keeper ofthe Great Seal; Lord Keeper; Keeper ofthe Broad Seal; Custos Sigilli. Keeper of the Hanaper. Hist. The head of the receiv­ ing and accounting department in Chancery.• The Hanaper received fees collected on charters and letters granted under the Great Seal and fines for Chancery writs, paid Chancery staff wages, purchased office

supplies, and accounted for the Chancery's revenues and expenses. Keeper of the King's Conscience. See LORD CHANCEL­ LOR.

Keeper of the Privy Seal (priv-ee). 1. LORD PRIVY SEAL. 2. In Scotland and Cornwall, an officer similar to the English Lord Privy Seal. Keeper of the Rolls. See CUSTOS ROTULORUM. Kellogg-Briand Pact. Int'llaw. A 1928 treaty under which the United States, France, and (by 1933) 63 other nations purported to outlaw war and pledged to settle future differences through diplomacy.• Among the signatories were Germany, Japan, and Italy nations whose acts of aggression lead to World War II. 46 Stat. 2343, T.S. No. 796. Also termed Pact ofParis. kenning to a terce. Hist. Scots law. The sheriff's deter­ mination of which tracts or parts of a decedent's land belong to a widow; esp., a sheriff's assignment of dower. Keogh plan (kee-oh). (1952) A tax-deferred retirement program developed for the self-employed.• This plan is also known as an H.R. 10 plan, after the House of Representatives bill that established the plan. - Also termed self-employed retirement plan. Cf. INDIVIDUAL RETIREMENT ACCOUNT. [Cases: Internal Revenue 4381.] Ker-Frisbie rule. (1974) The principle that the gov­ ernment's power to try a criminal defendant is not impaired by the defendant's having been brought back illegally to the United States from a foreign country. Ker v. Illinois, 119 U.S. 436, 7 S.Ct. 225 (1886); Frisbie v. Collins, 342 U.S. 519,72 S.Ct. 509 (1952). Ketubah (ke-too-vah), n. Jewish law. A prenuptial agree­ ment, signed by at least two independent witnesses, in which a husband promises to support his wife and to pay her a certain sum of money if the couple divorces. • If the couple is still married when the husband dies, the sum promised upon divorce becomes the primary debt to be paid out of the husband's estate. The terms of a Ketubah are often enforceable in secular courts under general contract-law principles. keyage (kee-;}j). See QUAYAGE. KeyCite, vb. (1997) To determine the subsequent history of (a case, statute, etc.) by using the online citator of the same name to establish that the point being researched is still good law. KeyCiting, n. key-employee life insurance. See LIFE INSURANCE. key encryption. A software-cryptography system that generates and employs a secure key pair, one public key and one private key, to verify a digital signature and decipher a secure, coded document. • The public

key-executive insurance

key is known to all possible receivers of a message. The private key is known only to the message's sender. Key encryption transforms the message's characters into an indecipherable "hash." A person who has the signer's public key can decipher the message and detect whether it has been altered and whether it was transmitted using the sender's private key. It does not necessarily identify the sender; identity is verified using a digital certifi­ cate. Also termed public-key encryption. - Abbr. PKE. See DIGITAL CERTIFICATE; HASH. key-executive insurance. See key-employee insurance under INSURANCE. key man. See KEY PERSON. key-man insurance. See key-employee life insurance under LIFE INSURANCE. key money. (1948) 1. Payment (as rent or security) required from a new tenant in exchange for a key to the leased property. [Cases: Landlord and Tenant 9 88(2).]2. Payment made (usu. secretly) bya prospective tenant to a landlord or current tenant to increase the chance of obtaining a lease in an area where there is a housing shortage. - Key money in the first sense is a legal transaction; key money in the second sense is usu. an illegal bribe that violates hOUSing laws. key-number system. (1909) A legal-research indexing system developed by West Publishing Company (now the West Group) to catalogue American caselaw with headnotes. _ In this system, a number designates a point oflaw, allowing a researcher to find all reported cases addressing a particular point by referring to its number. key person. An important officer or employee; a person primarily responsible for a business's success. - Also termed key man. key-person insurance. See key-employee insurance under INSURANCE. kickback, n. (I920) A return of a portion of a monetary sum received, esp. as a result of coercion or a secret agreement . - Also termed payoff. Cf. BRIBERY. kicker. 1. An extra charge or penalty, esp. a charge added to a loan in addition to interest. 2. An equity partici­ pation that a lender seeks as a condition for lending money, so that the lender may participate in rentals, profits, or extra interest. kickout clause. (1983) A contractual provision allowing a party to end or modify the contract ifa specified event occurs . kiddie tax. See TAX. kidnap, vb. (l7c) To seize and take away (a person) by force or fraud, often with a demand for ransom. kidnapping. (17c) 1. At common law, the crime offorcibly abducting a person from his or her own country and sending the person to another. - This offense amounted

948

to false imprisonment aggravated by moving the victim to another country. 2. The crime of seizing and taking away a person by force or fraud. Also termed simple kidnapping; (loosely) abduction; (archaically) mansteal­ ing. See ABDUCTION. [Cases: Kidnapping C=' 14.] "At early common law, kidnapping required a forcible asportation of the victim to another country. Under modern statutes, the asportation need not be this extensive." Arnold H. Loewy, Criminal Law in a Nutshell 64 (2d ed. 1987).

aggravated kidnapping. (1943) Kidnapping accompa­ nied by some aggravating factor (such as a demand for ransom or injury of the victim). child-kidnapping. (1978) The kidnapping of a minor, often without the element of force or fraud (as when someone walks off with another's baby). - Also termed child-stealing; baby-snatching; childnapping. kidnapping by cesarean. The kidnapping of a newborn baby by a person who causes the unlawful and forcible delivery of the baby by cesarean section without the mother's consent. - The kidnapper is usu. a woman of childbearing age who has lost a baby or is unable to bear one. - Also termed newborn kidnapping by cesarean section. kidnappingfor ransom. (1909) The offense of unlaw­ fully seizing a person and then confining the persoll, usu. in a secret place, while attempting to extort ransom. _ This grave crime is sometimes made a capital offense. In addition to the abductor, a person who acts as a go-between to collect the ransom is gen­ erally considered guilty of the crime. [Cases: Kidnap­ ping (;::::> 19.] newborn-kidnapping by cesarean section. See kidnap­ ping by cesarean. parental kidnapping. (1984) The kidnapping of a child by one parent in violation of the other parent's custody or visitation rights. See PARENTAL KIDNAP­ PING PREVENTION ACT.

simple kidnapping. (1943) Kidnapping not accompa­ nied by an aggravating factor. kidnapping by cesarean. See KIDNAPPING. kill, vb. (14c) To end life; to cause phYSical death. - The word is also used figuratively in putting an end to something . killer amendment. See AMENDMENT (3). killing by misadventure. See ACCIDENTAL KILLING. killing with malice. See MALICIOUS KILLING. kin, n. (bef. 12c) l. One's relatives; family. Also termed kindred. [Cases: Descent and Distribution C=:20-43; Wills C:.:J 508.J 2. A relative by blood, marriage, or adoption, though usu. by blood only; a kinsman or kinswoman. See NEXT OF KIN. kinbote. See manbote under BOTE (2). kind arbitrage. See ARBITRAGE.

knight-service

949

kindlie (kInd-lee). Scots law. A tenant's right to a lease's renewal. kindred. 1. See KIN. 2. See KINSHIP. king. 1. A man who possesses, in his own right, the sov­ ereignty and royal power in a monarchy. Cf. QUEEN (1). 2. (cap.) English law. 1he British government; the Crown. See CROWN. "In modern times it has become usual to speak of the Crown rather than of the King, when we refer to the King in his public capacity as a body politic. We speak of the property of the Crown, when we mean the property which the King holds in right of his Crown. So we speak of the debts due by the Crown, of legal proceedings by and against the Crown, and so on. The usage is one of great convenience, because it avoids a difficulty which is inherent in all speech and thought concerning corporations sole, the difficulty, namely, of distinguishing adequately between the body politic and the human being by whom it is represented and whose name it bears." John Salmond, Jurisprudence 341-42 (Glanville L. Williams ed., 10th ed. 1947).

King's advocate. See LORD ADVOCATE. King's Bench. Historically, the highest common­ law court in England, presided over by the reigning monarch. _ When a queen begins to reign, the name automatically changes to Queen's Bench. In 1873, during Queen Victoria's reign, the court's jurisdiction was transferred to the Queen's Bench Division of the High Court of Justice. Abbr. K.B. Also termed Court oiKing's Bench; Coram Rege Court. Cf. QUEEN'S BENCH; QUEEN'S BENCH DIVISION.

'The court of King's Bench is the highest court of ordinary justice in criminal cases within the realm, and paramount to the authority of justices of gaol delivery. and commissions of oyer and terminer. It has jurisdiction over all criminal causes, from high treason down to the most trivial misde­ meanor or breach of the peace." 1 Joseph Chitty, A Practical Treatise on the Criminal Law 156 (2d ed. 1826).

King's Chambers. In the United Kingdom, waters lying within an imaginary line drawn from headland to headland around the coast of Great Britain. King's Counsel. In the United Kingdom, Canada, and territories that have retained the rank, an elite, senior­ level barrister or advocate. - Originally, a King's Counsel was appointed to serve as counsel to the reigning monarch. - Also termed senior counsel. Abbr. K.c. Cf. QUEEN'S COUNSEL. King's Court. See CURIA REGIS. King's evidence. See Queen's evidence under EVIDENCE.

King's Great Sessions in Wales. See COURT

OF GREAT

SESSIONS IN WALES.

King's peace. Hist. A royal subject's right to be protected from crime (to "have peace") in certain areas subject to the king's immediate control, such as the king's palace or highway. _ A breach of the peace in one of these areas subjected the offender to punishment in the King's Court. Over time, the area subject to the King's peace grew, which in turn increased the jurisdiction of the royal courts. - Also written King's Peace. Cf. AGAINST THE PEACE AND DIGNITY OF THE STATE.

"A breach of the King's Peace was at one time the most comprehensive of all offences against the Crown; it indeed included, and still includes, all the more serious crimes. At one time, in fact, every indictment charged the accused with an offence 'against the peace of our Sovereign Lord the King'; and, though this form is no longer employed, that is mainly because the imperative duty of not disturb· ing the King's Peace has by now evolved into an elaborate system of Criminal Law." Edward Jenks, The Book of English Law 134 (P.B. Fairest ed., 6th ed. 1967).

King's proctor. See QUEEN'S PROCTOR. King's silver. Hist. Money paid in the Court of Common Pleas for a license to levy a feudal fine; an amount due on granting a conge d'accorder in levying a fine oflands. - It amounted to three-twentieths of the supposed annual value of the land, or ten shillings for every five marks of land. - Also termed post-fine. See CONGE D'ACCORDER; FINE (1).

kinship. Relationship by blood, marriage, or adoption. Also termed kindred. kinsman. See RELATIVE. kinta!. See QUlNTAL. kissing the Book. Hist. The practice of touching one's lips to a copy of the Bible (esp. the New Testament) after taking an oath in court. _ This practice - formerly used in England was replaced by the practice of placing one's hand on the Bible while swearing. kitchen cabinet. See CABINET. kiting. 1. CHECK-KITING. 2. Slang. Commercial law. Raising money on credit, often by using accommoda­ tion paper. Klaxon doctrine (klak-s;m). (1966) Conflict oflaws. The principle that a federal court exercising diversity juris­ diction must apply the choice-of-Iaw rules of the state where the court sits .• In Klaxon Co. v. Stentor Elee. lvlfg. Co., the Supreme Court extended the rule of Erie v. Tompkins to choice-of-Iaw issues. 313 U.S. 487, 61 S.Ct. 1020 (194l). - Also termed Erie/Klaxon doctrine. See ERIE DOCTRINE. [Cases: Federal Courts ~409.1.1 kleptomania (klep-td-may-nee-d), n. (1830) A compul­ sive urge to steal, esp. without economic motive. ­ kleptomaniac, n. & adj. knight. (bef. 12c) 1. Hist. In the Middle Ages, a person of noble birth who, haVing been trained in arms and chivalry, was bound to follow an earl, baron, or other superio'r lord into battle. 2. In modern Britain, a man upon whom the monarch has bestowed an honorary dignity (knighthood) as a reward for personal merit of some kind. - The status of knighthood no longer relates to birth or possessions and does not involve military service. knight bachelor. See BACHELOR (3). knight of the post. Hist. A hired perjurer. knight-service. Hist. A type of lay tenure in which a knight held land of another person or the Crown in Also exchange for a pledge of military service. termed knight's service; (Scots law) ward holding. Cf BASE SERVICE; SOCAGE; VILLEINAGE.

"By far the greater part of England is held of the king by knight's service (per servitium militare): it is comparatively rare for the king's tenants in chief to hold by any of the ather tenures. In order to understand this tenure we must farm the conception of a unit of military service. That unit seems to be the service of one knight or fully armed horseman (servitium unius militis) to be dane to the king in his army for forty days in the year, if it be called for." 1 Fred­ erick Pollock & Frederic W. Maitland, The History ofEnglish Law Before the Time of Edward I 254 (2d ed. 1898).

knowing attempt to commit fraud>. - knowingly, adv. knowing consent. See informed consent under CONSENT

knight's fee. Hist. 1be amount ofland that gave rise to the obligation of knight-service.• The amount varied from less than a hide to more than six hides. See HIDE. knight's service. See KNIGHT-SERVICE. knock-and-announce rule. (1969) Criminal procedure. The requirement that the police knock at the door and announce their identity, authority, and purpose before entering a residence to execute an arrest or search warrant. ~ Also termed knock-and-notice rule. Cf. no-knock search warrant under SEARCH WARRANT; no-knock search under SEARCH. (Cases: Searches and Seizures ~54, 143.1.] knock-for-knock agreement. (1949) An arrangement between insurers whereby each will pay the claim of its insured without claiming against the other party's insurance. knock in, vb. To rap on the courtroom door to announce the entry of (one or more judges) . knock off, vb. (1879) 1. To make an unauthorized copy of (another's product), usu. for sale at a substantially lower price than the original . 2. Slang. To murder . 3. Slang. To rob or burglarize . knockoff, n. (1966) Intellectual property. An unauthor­ ized counterfeit and usu. inferior copy of another's product, esp. one protected by patent, trademark, trade dress, or copyright, usu. passed off at a substantially lower price than the original. knock-out auction. See AUCTION. know all men by these presents. (16c) Take note. _ This archaic form of address - a loan translation of the Latin noverint universi per praesentes ~ was tradi­ tionally used to begin certain legal documents such as bonds and powers of attorney, but in modern drafting style the phrase is generally considered deadwood. See NOVERINT UNIVERSI PER PRAESENTES. Cf. PATEAT UNI­ VERSIS PER PRAESENTES. know-how. (1838) The information, practical knowledge, techniques, and skill required to achieve some practi­ cal end, esp. in industry or technology.• Know-how is considered intangible property in which rights may be bought and sold. See TRADE SECRET. knowing, adj. (14c) 1. Having or showing awareness or understanding; well-informed . 2. Deliberate; conscious 4.] labor, n. 1. Work of any type, including mental exertion 67.] ''The doctrine of laches ... is an instance of the exercise of the reserved power of equity to withhold relief otherwise regularly given where in the particular case the granting of such relief would be unfair or unjust." William F. Walsh, A Treatise on Equity 472 (1930).

laches, estoppel by. See estoppel by laches under ESTOPPEL

Lackey claim. A prisoner's assertion that incarcera­ tion on death row for a protracted period is cruel and unusual punishment. Lackey v. Texas, 514 U.S. 1045, ll5 S.Ct. 1421 (1995) (denying cert.). [Cases: Sentencing and Punishment (> 1795.] lack-of-antecedent-basis rejection. See REJECTION. LABOR-DESERT MODEL. lack of capacity. The disability of a person to create or labor organization. See UNION. enter into a legal relation because ofsome special char­ labor-relations act. (1935) A statute regulating relations acteristic. See CAPACITY (2). between employers and employees. - Although the lack of enablement. See NONENABLEMENT. Labor-Management Relations Act is the chief federal lack-of-enablement rejection. See nonenablement rejec­ labor-relations act, various states have enacted these tion under REJECTION (3). statutes as welL lack of jurisdiction. See WANT OF JURISDICTION. Labor Relations Board. See NATIONAL LABOR RELA­ lack of prosecution. See WANT OF PROSECUTION. TIONS BOARD. lack-of-utility rejection. See REJECTION. labor theory. See LOCKEAN LABOR THEORY. lacta (lak-t~), n. [Law Latin] His/. Lack of or defect in the labor union. See GNION. weight of money. - Also termed lacca. lacca. See LACTA. l'acte de l'etat civil. See ACTE (1). Lacey Act. A federal law, originally enacted in 1900, that lada (lay-dd), n. [Law Latin]l. Hist. A court of justice. permits states to enforce their own game laws prohib­ 2. A canal for draining marshy ground; a watercourse; iting the importation of animals from other states a lade. or countries. 16 USCA §§ 661 et seq. See GAME LAW. [Cases: Game lade (layd), n. Hist. The mouth of a river. - Also spelled lode. la chambre des esteilles (l~ shahm-bra da zes-tay), n. [French] Hist. The Star Chamber. See STAR CHAMBER, i laden in bulk, adj. Maritime law. (Of a vessel) loaded COURT OF. , with a cargo that lies loose in the hold instead of packaged. - Cargoes of corn, salt, and similar items laches (Iach-iz). [Law French "remissness; slackness"] are usu. shipped in bulk. (l4c) 1. Unreasonable delay in pursuing a right or claim almost always an equitable one - in a way that lading, bill of. See BILL OF LADING. prejudices the party against whom relief is sought. ­ i lady. (bef. 12c) In Britain, a title belonging to the wife Also termed sleeping on rights. lCases: Equity (>67.] of a peer, (by courtesy) the wife of a baronet or knight, "Early in Its history, Chancery developed the doctrine that or any Single or married woman whose father was a where the plaintiff in equity delayed beyond the period of I nobleman carrying a rank of earl or higher. the statute applicable at law, relief would be refused on the ground of laches even though no specific prejudice to lady-court. Hist. The court of a lady of the manor. the defendant was shown. Today. in most states, there are i Lady Day. See quarter day under DAY. statutes of limitations applying to suits in equity. Despite these, however, the doctrine still holds that even if the lady's friend. Hist. The title of an officer in the English delay is for a shorter period of time than that of the statute, House of Commons, whose duty was to secure a suitable it may still bar equitable relief if it is unreasonable and provision for a wife when her husband sought a parlia­ prejudicial to the defendant." John F. O'Connell, Remedies mentary divorce. _ In 1857, parliamentary divorces and in a Nutshell 16 (2d ed. 1985). the office oflady's friend were abolished by statute. prosecution laches. Patents. In a claim for patent­ laenland. See LOAN LAND. infringement, the eqUitable defense that the patentee did not timely enforce the patent rights. [Cases: laesa majestas (Iee-zd m~-jes-tas). See LESE MAJESTY. Patents (>289(2).] laesio enormis (Iee-shee-oh i-nor-mis). [Law Latin "excessive loss" or "abnormal loss of more than half"] 2. The equitable doctrine by which a court denies Roman c.~ civil law. 1. The sale of a thing for which the relief to a claimant who has unreasonably delayed in buyer paid less than half of its real value. - The seller asserting the claim, when that delay has prejudiced the

954

laesio ultra dimidium vel enormis

could rescind the sale, but the buyer could keep the item purchased by paying the full value. Generally, this doctrine was limited to land sales. 2. The injury sustained by one party to an onerous contract when the overreaching party receives twice the value of that party's money or property, such as a purchaser who pays less than half of the value of the property sold, or a seller who receives more than double the property's value.• If coowner coheirs partition or sell property, laesio enormis may exist when the purchaser pays less than one-fourth of the value rather than one-half. See La. Civ. Code arts. 824, 1406. - Also spelled lesio enormis. - Also termed lesion; enorm lesion; (in full) laesio enormis vel ultra dimidium (lee-shee-oh i-nor­ mis vel al-tra di-mid-ee-Clm); (in Louisiana) lesion beyond moiety. "Lesion (/aesio enormis) was the rule, established very late, that a seller could rescind a contract if he had received less than half its real value .... [l]n spite of its imperfections, lesion not only was adopted in all modern civilian systems (French Code Civil 1674-1683), but became the means of testing the validity of contracts generally by their fairness, a principle embodied in the German Civil Code (section 138) and the Swiss Code of Obligations (section 21). Such a test is no more difficult to apply in law than in eqUity, where it has long been established in our system. As the Romans applied it, it was a clumsy and inadequate way of reaching this result. In modern courts, in ciVil-law coun­ tries, it invests judges with a discretion not very likely to be abused, but sufficient to act as a deterrent to the grosser forms of economic exploitation." Max Radin, Handbook of Roman Law 233-34 (1927).

laesio ultra dimidium vel enormis. See LAESIO ENORMIS. laesiwerp (lee-za-wClrp), n. [Saxon fr. laisus "bosom" + werpire "to surrender"] Hist. A thing surrendered to another's hands or power; a thing given or delivered. laet (layt), n. Hist. A person of a class between servile and free. laga. See LAGE. lagan (lag-Cln), n. (17c) 1. Goods that are abandoned at sea but attached to a buoy so that they may be recov­ ered. Also termed lagend; lagon; ligan; ligen; logan. Cf. FLOTSAM; JETSAM; WAVESON. 2. Archaic. Wreckage or cargo lying on the seabed. lage (law or lay), n. [fro Saxon lag "law"] Hist. 1. Law. 2. The territory in which certain law was in force, such as danelage, mercenlage, and West-Saxon lage .• This term is essentially an obsolete form of the word law. ­ Also termed lagh; laga; lagu. See DANELAW; MERCEN­ LAGE; WEST-SAXON LAW. lage day (law day). A law day; a juridical day; a day of open court. Also termed lagh day. lageman (law-man or lay-man). See LEGALIS HOMO. lagend (lag-and). See LAGAN. lagging economic indicator. See ECONOMIC INDICA­ TOR. lagging indicator. See INDICATOR. lagh day. See LAGE DAY.

lagon (lag-an). See LAGAN. lagu. See LAGE. lahman (law-mCln or lay-man), n. [Saxon fro lah "law"] Archaic. A lawyer. Also termed lagemannus. laicus (laY-Cl-kas), n. [Law Latin] Rist. A layman; one who is not in the ministry. Laidlaw vacancy. Under the National Labor Relations Act, a genuine opening in an employer's workforce, resulting from the employer's expanding its work­ force or discharging a particular employee, or from an employee's resigning or otherwise leaving the employment.• The opening must be offered to striking workers, in order of seniority, after a strike has been resolved. Laidlaw Corp. v. NLRB, 414 F.2d 99 (7th Cir. 1969). lairwite (lair-WIt), n. [fro Saxon lagan "to lie" + wite "a fine"] Rist. A fine for adultery or fornication paid to the lord of the manor; esp., a lord's privilege of receiving a fine for fornication with the lord's female villeins. - Also termed lairesite; lecherwite (lech-Clr­ WIt); legerwite; leirwita; leyerwite; legenita (la-jen-Cl-tCl); legruita (lCl-groo-a-ta). lais gents (lay zhon[ tsD, n. pl. [Law French] Rist. Laymen; a jury. laissez-faire (les-ay-fair), n. [French "let (people) do (as they choose),'] (1825) 1. Governmental abstention from interfering in economic or commercial affairs. 2. The doctrine favoring such abstention. - laissez­ faire, adj. laity (laY-Cl-tee). (I5c) Collectively, persons who are not members of the clergy. [Cases: Religious Societies C:=c

7.] lake, n. (l2c) 1. A large body of standing water in a depreSSion ofland or basin supplied from the drainage of an extended area; esp., a natural depression in the surface of the earth containing a reasonably permanent body ofwater that is substantially at rest. [Cases: Waters and Water Courses ~-::> 108.2. A widened or expanded part of a river. Lambeth degree (lam-bath). Hist. A degree conferred by the Archbishop ofCanterbury, rather than by a univer­ sity, as authorized under the Ecclesiastical Licenses Act of 1533 (25 Hen. 8, ch. 21).• 'The degrees were conferred in music, theology, law, and medicine.

Lamb-Weston rule. Insurance. The doctrine that, when two insurance policies provide coverage for a loss, and each of them contains an other-insurance clause ­ creating a conflict in the order or apportionment of coverage both ofthe other-insurance clauses will be disregarded and liability will be prorated between the insurers. Lamb-Weston, Inc. v. Oregon Auto. Ins. Co., 341 P.2d 110 (Or. 1959). [Cases: Insurance 2112,2762.] lame duck. (1910) An elected official serving out a term after a successor has been elected. [Cases: Officers and Public Employees C:=cSO.] lame-duck amendment. See TWENTIETH AMENDMENT.

955

land

lame-duck session. See SESSION (I). Lammas. See quarter day under DAY. lammas land. See LAND. land, n. (bef. 12c) 1. An immovable and indestructible three-dimensional area consisting of a portion of the earth's surface, the space above and below the surface, and everything growing on or permanently affixed to it. 2. An estate or interest in real property. [Cases: Estates in Property C=> 1.] "In its legal significance, 'land' is not restricted to the earth's surface, but extends below and above the surface. Nor is it confined to solids, but may encompass within its bounds such things as gases and liquids. A definition of 'land' along the lines of 'a mass of physical matter occupy­ ing space' also is not sufficient, for an owner of land may remove part or all of that physical matter, as by digging up and carrying away the soil, but would nevertheless retain as part of his 'land' the space that remains. Ulti­ mately, as a juristic concept, 'land' is simply an area of three-dimensional space, its pOSition being identified by natural or imaginary points located by reference to the earth's surface. 'Land' is not the fixed contents of that space, although, as we shall see, the owner of that space may well own those fixed contents. Land is immoveable, as distinct from chattels, which are moveable; it is also, in its legal significance, indestructible. The contents of the space may be physically severed, destroyed or consumed, but the space itself, and so the 'land', remains immutable." Peter Butt, Land Law 9 (2d ed. 1988).

accommodation land. (1843) Land that is bought by a builder or speculator who erects houses or improve­ ments on it and then leases it at an increased rent. acquired federal land. (usu. pI.) Federal land that was never in the public domain. See federal land. acquired land. Land acquired by the government from private hands or from another governmental entity; esp., property acquired by the federal govern­ ment from private or state ownership .• This term is frequently contrasted with publiC domain. - Also termed acquired lands. See PUBLIC DOMAIN (1). [Cases: Public Lands ~,)4.] "'Acquired lands' are lands the United States acquired from private or state owners by gift, purchase, exchange, or condemnation. In most but not all cases, such lands actually have been 'reacquired,' because the United States previously had purchased or won them from foreign and Indian sovereigns. Distinguishing between lands because of ownership origins that go back over a century is a policy with little to recommend it, but some statutes and judicial opinions maintain the distinction." George Cameron Coggins, Public Natural Resources Law § 1.02[11 (1990).

arable land (ar-;1-b;1l). (16c) Land fit for cultivation. Formerly also termed araturia; aralia; aratia. bounty land. A portion ofpublic land given or donated as a reward, esp. for military service. See MILITARY BOUNTY LAND. [Cases: Public Lands (:::::>46.] certificate land. Land in the western part of Pennsyl­ vania set apart after the American Revolution to be bought with certificates that the soldiers received in lieu of pay. Cf. donation land. Crown land. Demesne land of the Crown; esp., in England and Canada, land belonging to the sovereign personally, or to the government, as distinguished

from land held under private ownership. - Also termed demesne land of the Crown. See demesne land. demesne land (di-mayn or di-meen). Hist. Land reserved by a lord for personal use. donation land. Land granted from the public domain to an individual as a gift, usu. as a reward for services or to encourage settlement in a remote area .• The term was initially used in Pennsylvania to reward Revolutionary War soldiers. Cf. certificate land. [Cases: Public Lands ~~4S.J earned land. Public land that is conveyed by a land patent to a private person who has performed a certain condition, usu. one spelled out in an earlier grant. See PATENT (2). enclosed land. (17c) Land that is actually enclosed and surrounded with fences. fabric land. Hist. Land given toward the maintenance, repair, or rebuilding of a cathedral or other church. • This term derives from funds given ad fabricam ecclesiae reparandam ("to repair the fabric of the church"). "Fabrick-Lands are lands given towards the maintenance, rebuilding, or repair of Cathedrals or other churches .... In antient time almost everyone gave by his Will more or less to the Fabrick of the Cathedral or Parish-Church where he liv'd." Thomas Blount, Noma-Lexicon: A Law-Dictionarv (1670).

fast land. (often pl.) (16c) Land that is above the high­ water mark and that, when flooded by a government project, is subjected to a governmental taking.• Owners of fast lands are entitled to just compensa­ tion for the taking. See TAKING (2). [Cases: Eminent Domain (:::::>2.17(5).] federal land. (usu. pl.) Land owned by the United States government. • Federal lands are classified as public lands (also termed "lands in the public domain") or acquired federal lands, depending on how the land was obtained. See acquired federal land. [Cases: Public Lands C=>4.J government land. See public land. hide land. Hist. See HIDE. improved land. (17c) Land that has been developed; esp., land occupied by buildings and structures .• The improvements mayor may not enhance the value of the land. indemnity land. See INDEMNITY LAND. lammas land (lam-;)s). Hist. Land over which persons other than the owner have the right of pasturage during winter, from lammas (reaping time) until sowing time. lieu land (loa). Public land within indemnity limits granted in lieu of those lost within place limits. [Cases: Public Lands C=>S3, 81.] life land. Hist. Land leased for a term measured by the life of one or more persons. - Also termed life­ hold.

956

land,lawof

made land. Artificially formed land, usu.land that has been reclaimed by filling or created by dredging. mineral land. (18c) Land that contains deposits of valuable minerals in quantities justifying the costs of extraction and using the land for mining, rather than agricultural Of other purposes. place land. See INDEMNITY LAND. public land. (17c) Lands Of land interests held by the government, without regard to how the government acquired ownership; unappropriated land belonging Also termed to the federal or state government. public lands; government land; public ground. [Cases: Public Lands C=:> 1.] 'The terms 'public lands' and 'federal lands' may ... include less than full fee interests, such as severed mineral estates. They usually do not, however, refer to submerged lands off the seacoasts (over which the United States asserts jurisdiction but not title), or lands held in trust for Indians." George Cameron Coggins et aI., Federal Public Land and Resources Law 3 (3d ed. 1993).

reserved land. See RESERVATION (3). riparian land. 1. Land that includes part ofthe bed of a watercourse or lake. [Cases: Waters and "Vater Courses C=:>40, 89, 109, In.] 2. Land that borders on a public watercourse or public lake whose bed is owned by the public. [Cases: Waters and Water Courses C=:> 39.] school land. (18c) Public real estate set apart for sale or exploitation by a state to establish and fund public schools. [Cases: Public Lands G-'-::>51.J seated land. (1822) Land that is occupied, cultivated, improved, reclaimed, farmed, or used as a place of residence, with or without cultivation. settled land. Any land - or any interest in it that is the subject of any document that limited it to, or put it into trust for, a person by way of succession. swamp and overflowed land. (1853) Land that, because of its boggy, marshy, fenlike character, is unfit for cul­ tivation, requiring drainage or reclamation to render it available for beneficial use. - Such lands were granted out of the U.S. public domain to the littoral states by acts of Congress in 1850 and thereafter. 43 USCA §§ 981 et seq. [Cases: Public Lands C=:>58.] tideland. See TIDELAND. unimproved land. 1. Raw land that has never been developed, and usu. that lacks utilities. 2. Land that was formerly developed but has now been cleared of all buildings and structures. withdrawn land. See RESERVATION (3). land, law of. See LAW OF THE LAND. land agent. See LAND MANAGER. land bank. (1921) 1. A bank created under the Federal Farm Loan Act to make loans at low interest rates secured by farmland. [Cases: Agriculture ~;)3.2.] 2. A program in which land is retired from agricul­ tural production for conservation or tree-cultivation

purposes.

Also termed soil bank. See FEDERAL HOME

LOAN BANK.

land boundary. See BOUNDARY. land certificate. A document entitling a person to receive from the government a certain amount ofland by fol­ lowing prescribed legal steps .• It contains an official description ofthe land, as well as the name and address of the person receiving the entitlement, and is prima facie evidence of the truth of the matters it contains. Also termed land warrant. [Cases: Public Lands 174.] landcheap. Hist. A customary fine paid in money or cattle when any real property within a manor or borough was transferred. land-conservation agreement. See land-conservation easement under EASEMENT. land-conservation easement. See EASEMENT. land contract. See contract for deed under CONTRACT. land cop. Hist. The sale ofland evidenced by the transfer in court of a rod or festuca as a symbol of possession. • The seller handed the rod to the reeve and the reeve handed it to the purchaser. The conveyance occurred in court to provide better evidence of the transfer and to bar the claims of expected heirs. land court. See COURT. land damages. See just compensation under COMPEN­ SATION.

land department. A federal or state bureau that deter­ mines factual matters regarding the control and transfer of public land .• The federal land department includes the General Land Office headed by the Secre­ tary of the Interior. See DEPARTMENT OF THE INTERIOR. [Cases: Public Lands C:::>94.] land description. See LEGAL DESCRIPTION. land district. See DISTRICT. landed, adj. (lSc) 1. (Of a person) having an estate in land. 2. (Of an estate, etc.) consisting ofland. landed estate. See ESTATE (1). landed-estates court. See COURT. landed property. See landed estate under ESTATE (1). landed security. See SECURITY. landed servitude. See servitude appurtenant under SER­ VITUDE (2).

landefricus (lan-dd-frI-bs). Hist. A landlord or lord of the soil. landegandman (lan-d,,-gand-m.m or lan-d"-g"nd-mdn). Hist. A customary or inferior tenant of a manor. land flip. (1988) Real estate. A transaction in which a piece of property is purchased for one price and imme­ diately sold, usu. to a fictitious entity, for a much higher price, to dupe a lender or later purchaser into thinking that the property is more valuable than it actually is. land forces. See UNITED STATES ARMY.

land-gavel (land-gav-al). Hist. A tax or rent issuing from land. Also spelled landgable; land-gabel; land-gafol. See GAVEL (1), (2). land grant. (1862) A donation ofpublic land to an indi­ vidual, a corporation, or a subordinate government. [Cases: Public Lands C--="42.] private land grant. (1861) A land grant to a natural person. See land patent under PATENT (2). landhlaford (land-[h]lav-ard). Hist. A proprietor ofland; a lord of the soil. landholder. (17c) One who possesses or owns land. land improvement. See IMPROVEMENT. landing. (15c) 1. A place on a river or other navigable water for loading and unloading goods, or receiving and delivering passengers and watercraft. 2. The ter­ mination point on a river or other navigable water for these purposes. 3. The act or process of coming back to land after a voyage or flight. landing law. A law prohibiting the possession or sale of fish or game that have been taken illegally. [Cases: Fish 12.] land lease. See ground lease under LEASE. landlocked, adj. (17c) 1. Surrounded by land, with no way to get in or out except by crossing the land of another . See MONUMENT. [Cases: Environ­ mental Law (;::::>61-103.] landmark decision. (1913) A judicial decision that sig­ nificantly changes existing law.• Examples are Brown v. Board of Educ., 347 U.S. 483, 74 S.Ct. 686 (1954) (holding that segregation in public schools violates the Equal Protection Clause), and Palsgraf v. Long Island R.R., 162 N.E. 99 (N.Y. 1928) (establishing that a defen­ dant's duty in a negligence action is limited to plaintiffs within the apparent zone ofdanger that is, plaintiffs to whom damage could be reasonably foreseen). Also termed landmark case. Cf. LEADING CASE. land office. (17c) A government office in which sales of public land are recorded. [Cases: Public Lands 94.] landowner. One who owns land. landowner's royalty. See ROYALTY (2). land patent. See PATENT (2). land-poor, adj. (1873) (Of a person) owning a substan­ tial amount of unprofitable or encumbered land, but lacking the money to improve or maintain the land or to pay the charges due on it. land-preservation agreement. See land-conservation easement under EASEMENT. landreeve. Hist. A person charged with (1) overseeing certain parts of a farm or estate, (2) attending to the timber, fences, gates, buildings, private roads, and watercourses, (3) stocking the commons, (4) watching for encroachments of all kinds, (5) preventing and detecting waste and spoliation by tenants and others, and (6) reporting on findings to the manager or land steward. land revenue. See REVENUE. Landrum-Griffin Act. A federal law, originally enacted in 1959 as the Labor-Management Reporting and Dis­ closure Act, designed to (1) curb corruption in union leadership and undemocratic conduct in internal union affairs, (2) outlaw certain types ofsecondary boycotts, and (3) prevent so-called hot-cargo provisions in col­ lective-bargaining agreements. See HOT CARGO.

lands

lands, n. pl. (14c) 1. At common law, property less exten­ sive than either tenements or hereditaments. 2. By statute in some states, land including tenements and hereditaments. See HEREDITAMENTS; TENEMENT. land sales contract. See contract for deed under CONTRACT. land scrip. A negotiable instrument entitling the holder, usu. a person or company engaged in public service, to possess specified areas of public land. See SCRIP (1). [Cases: Public Lands (;::::J 135(1).] lands, tenements, and hereditaments. (16c) Real property. - The term was traditionally used in wills, deeds, and other instruments. land tax. See property tax under TAX. land-tenant. See TERRE-TENANT. Land Titles and Transfer Act. Hist. An 1875 statute establishing a registry for titles to real property, and providing for the transfer of lands and recording of those transfers. 38 & 39 Vict., ch. 87. - The act is analo­ gous in some respects to American recording laws, such as those providing for a registry of deeds. A system of title registration superseded this registry system in 1925.

land trust. See TRUST. land trust certificate. An instrument granting the holder a share ofthe benefits ofproperty ownership, while the trustee retains legal title. See land trust under TRUST. land-use planning. (1939) The deliberate, systematic development of real estate through methods such as zoning, environmental-impact studies, and the like. ­ Also spelled landuse planning. Also termed urban planning. [Cases: Zoning and Planning land-use regulation. An ordinance or other legisla­ tive enactment governing the development or use of real estate. Also spelled landuse regulation. [Cases: Zoning and Planning (;::::J 1.] "Public regulation of the use and development of land comes in a variety of forms which generally focus on four aspects of land use: (1) the type of use, such as whether it will be used for agricultural, commercial, industrial, or residential purposes; (2) the density of use, manifested in concerns over the height, width, bulk, or environmen· tal impact of the physical structures on the land; (3) the aesthetic impact of the use, which may include the design and placement of structures on the land; and (4) the effect of the particular use of the land on the cultural and social values of the community, illustrated by community conflicts over adult entertainment, housing for service-dependent groups such as low· income families and developmentally disabled persons, and whether the term family should be defined in land use regulations to include persons who are not related by blood or marriage." Peter W. Salsich Jr., Land Use Regulation 1 (1991).

land waiter. English law. A customhouse officer with the responsibility of examining, tasting, weighing, measur­ ing, and accounting for merchandise landing at any port. land warfare. See WARFARE. land warrant. See LAND CERTIFICATE.

958

Langdell system. See CASEBOOK METHOD. langeman (lan-ja-m.:m), n. Hist. A lord of a manor. PI. langemanni (lan-ja-man-I). language. (14c) 1. Any organized means of convey­ ing or communicating ideas, esp. by human speech, written characters, or sign language <what language did they speak?>. 2. The letter or grammatical import of a document or instrument, as distinguished from its spirit . languidus (lang-gwi-d;)s), n. [Law Latin "sick"] Hist. At common law, a return of process made by the sheriff when a defendant whom the sheriff had taken into custody was too sick to be removed. Lanham Act (lan-am). A federal trademark statute, enacted in 1946, that provides for a national system of trademark registration and protects the owner of a federally registered mark against the use of similar marks if any confusion might result or if the strength ofa strong mark would be diluted. - The Lanham Act's scope is independent of and concurrent with state common law. 15 USCA §§ 1051 et seq. Also termed Federal Trademark Act; Trademark Act of 1946. lapidation (lap-::>-day-sh;)n), n. An execution by stoning a person to death. -lapidate (lap-::>-dayt), vb. lappage (Iap-ij). Interference; lap and overlap; conflict. Lappage applies when two different owners claim under deeds or grants that, in part, cover the same land. lapping. (1939) An embezzlement technique by which an employee takes funds from one customer's accounts receivable and covers it by using a second customer's payment to pay the first account, then a third cus­ tomer's payment to pay the second account, and so on. [Cases: Embezzlement (;::::J 12.] lapse, n. (16c) L The termination of a right or privilege because ofa failure to exercise it within some time limit or because a contingency has occurred or not occurred. 2. Wills & estates. The failure of a testamentary gift, esp. when the beneficiary dies before the testator. See ANTILAPSE STATUTE. Cf. ADEMPTION. [Cases: Wills 774-777.J

lapse, vb. (18c) 1. (Of an estate or right) to pass away or revert to someone else because conditions have not been fulfilled or because a person entitled to possession has failed in some duty. See lapsed policy under INSURANCE POLICY. 2. (Of a devise, grant, etc.) to become void. lapsed devise. See DEVISE. lapsed legacy. See LEGACY. lapsed policy. See INSURANCE POLICY. lapse patent. See PATENT (2). lapse statute. See ANTILAPSE STATUTE. lapsus bonis (lap-s;)s boh-nis). [Latin] Scots law. Reduced in worldly circumstances. - The phrase appeared in reference to a person who was having temporary finan­ cial difficulties.

959

laron

larcenable (lahr-sCl-I1J-bCll), adj. (1920) Subject to larceny . [Cases: LarcenyC=>4-1O.] larcenist, n. (1803) One who commits larceny. See LARCENY.

larcenous (lahr-sCl-nJs), adj. (18c) 1. Of, relating to, or characterized by larceny . 2. (Of a person) contemplating or tainted with larceny; thievish . larcenous intent. See INTENT (1). larceny (lahr-sCl-nee), n. (15c) The unlawful taking and carrying away of someone else's personal property with the intent to deprive the possessor of it permanently. • Common-law larceny has been broadened by some statutes to include embezzlement and false pretenses, all three of which are often subsumed under the statu­ tory crime of "theft. Cf. ROBBERY. [Cases: Larceny C:::) 1.] 'The criminal offence of larceny or theft in the Common Law was intimately connected with the civil wrong of trespass. 'Where there has been no trespass,' said Lord Coleridge, 'there can at law common be no larceny.' Larceny. in other words, is merely a particular kind of trespass to goods which, by virtue of the trespasser's intent, is converted into a crime. Trespass is a wrong, not to ownership but to possession, and theft, therefore, is not the violation of a person's right to ownership, but the infringement of his possession, accompanied with a particular criminal intent." 4 Stephen's Commentaries on the Laws of Eng/and 72-73 (l. Crispin Warmington ed., 21st ed. 1950). "[Tlhe distinctions between larceny, embezzlement and false pretenses serve no useful purpose in the criminal law but are useless handicaps from the standpoint of the administration of criminal justice. One solution has been to combine all three in one section of the code under the name of 'larceny.' This has one disadvantage, however, because it frequently becomes necessary to add a modifier to make clear whether the reference is to common-law larceny or to statutory larceny." Rollin M. Perkins & Ronald N. Boyce, Criminal Law 389 (3d ed. 1982).

aggravated larceny. (1831) Larceny accompanied by some aggravating factor (as when the theft is from a person). - Also termed compound larceny. [Cases: Larceny~23.]

complicated larceny. See mixed larceny. compound larceny. 1. See aggravated larceny. 2. See mixed larceny. constructive larceny. (1827) Larceny in which the per­ petrator's felonious intent to appropriate the goods is construed from the defendant's conduct at the time of asportation, although a felonious intent was not present before that time. [Cases: Larceny (;:::::3(2).] grand larceny. (1828) Larceny ofproperty worth more than a statutory cutoff amount, usu. $100. Cf. petit larceny. [Cases; Larceny C=>23.] ''The English law, as the result of an early statute [the Statute of Westminster I, ch. 15 (1275)]. classified this offense [larceny] as either (1) grand larceny or (2) petit larceny (now frequently written petty larceny), the former being a capital offense and the latter punishable by forfeiture of goods and whipping, but not death. Both, as mentioned earlier, were felonies. The offense was grand larceny if the value of the property stolen exceeded twelve pence and petit

larceny if it did not. Modern statutes very generally retain this same classification (sometimes without using these labels) but with different penalties and different values set as the dividing line." Rollin M. Perkins & Ronald N. Boyce, Criminal Law 335 (3d ed. 1982).

larceny by a constructive trespass. Larceny that occurs when a property owner mistakenly gives another person more property than is due, and the recipient knows about the error but does not disclose it before taking the excess property with the intent ofconvert­ ing it to his or her own use. larceny by bailee. Larceny committed by a bailee who converts the property to personal use or to the use of a third party. [Cases: Embezzlement (;:::::-, 16; Larceny (;::::> 15.] larceny by extortion. See theft by extortion under THEFT.

larceny byfraud and deception. See larceny by trick. larceny by trick. (1898) Larceny in which the taker misleads the rightful possessor, by misrepresentation of fact, into giving up possession of (but not title to) the goods. - Also termed larceny by trick and decep­ tion; larceny by trick and device; larceny by fraud and deception. Cf. FALSE PRETENSES; cheating by false pre­ tenses under CHEATING. [Cases: Larceny ~ 14.J larceny from the person. (18c) Larceny in which the goods are taken directly from the person, but without violence or intimidation, the victim usu. being unaware of the taking.• Pickpocketing is a typical example. This offense is similar to robbery except that violence or intimidation is not involved. Cf. ROBBERY. [Cases: LarcenyC=>19.] larceny ofproperty lost, mislaid, or delivered by mistake. See theft ofproperty lost, mislaid, or deliv­ ered by mistake under THEFT. mixed larceny. (18c) 1. Larceny accompanied by aggra­ vation or violence to the person. Cf. simple larceny. 2. Larceny involving a taking from a house. - Also termed compound larceny; complicated larceny. petit larceny. (I6c) Larceny ofproperty worth less than an amount fixed by statute. usu. $100. - Also spelled petty larceny. Cf. grand larceny. [Cases: Larceny 23.] simple larceny. (I8c) Larceny unaccompanied by aggra­ vating factors; larceny of personal goods unattended by an act ofviolence. Cf. mixed larceny (1). larger parcel. (1895) Eminent domain. A portion ofland that is not a complete parcel, but is the greater part of a bigger tract, entitling the owner to damages both for the parcel taken and for its severance from the larger tract.• To grant both kinds of damages, a court gen­ erally requires the owner to show unity of ownership, unity of use, and contiguity of the land. But some states and the federal courts do not require contiguity when there is strong evidence of unity of use. See ECONOMIC UNIT. [Cases: Eminent Domain ~96, 135.] laron (lar-dn), n. [Law French] Hist. A thief.

Larrison rule (lar--s942.] "The most usual rule in cases in which it is claimed that there was false testimony at the trial or that the witness has since recanted is the 'Larrison rule,' taking its name from the Seventh Circuit case in which it was announced. This is that three requirements must be met before a new trial will be granted on this ground: '(a) [That the] the court is reasonably well satisfied that the testimony given by a material witness [was] false. (b) That without it the jury might have reached a different conclusion. (c) That the party seeking the new trial was taken by surprise when the false testimony was given and was unable to meet it for it did not know of its falsity until after the triaL'" 3 Charles Alan Wright, Federal Practice and Procedure § 557.1, at 343 (2d ed. 1982) (quoting Larrison, 24 F.2d at 87-88).

lascivious (l-siv-ee-ds), adj. (1Sc) (Of conduct) tending to excite lust; lewd; indecent; obscene. lascivious cohabitation. See illicit cohabitation under COHABITATION.

L'Association Litteraire et Artistique Internationale. Copyright. An organization of authors, artists, and

other supporters ofinternational copyright protection. • In 1878, the Association drafted five resolutions that would become the starting point for the Berne Conven­ tion. In 1883, the organization called the first meeting in Berne, Switzerland for the purpose of creating a union to enforce international copyrights. Often shortened to the International Association. - Abbr. ALAI. last, n. Hist. 1. A burden. 2. A measure of weight used for bulky commodities. last antecedent, rule of the. See RULE OF THE LAST ANTE­ CEDENT.

last-dear-chance doctrine. (1904) Torts. The rule that a plaintiff who was contributorily negligent may none­ theless recover from the defendant if the defendant had the last opportunity to prevent the harm but failed to use reasonable care to do so (in other words, if the defendant's negligence is later in time than the plain­ tiff's).• This doctrine allows the plaintiff to rebut the contributory-negligence defense in the few jurisdic­ tions where contributory negligence completely bars recovery. Also termed discovered-peril doctrine; humanitarian doctrine; last-opportunity doctrine; subsequent-negligence doctrine; supervening-negligence doctrine; doctrine ofultimate negligence; doctrine ofdis­ covered peril; doctrine ofsubsequent negligence. [Cases:

Automobiles (;=>227; Negligence (;=>S30, 1297.) last-employer rule. The doctrine that liability for an occupational injury or illness falls to the employer who exposed the worker to the injurious substance just before the first onset of the disease or injury. Also termed last-injurious-exposure rule. [Cases: Workers' Compensation (;=>201.]

!

last heir. Hist. The person - either the lord ofthe manor or the sovereign - to whom lands come by escheat when there is no lawful heir. last illness. (1904) The sickness ending in the person's death. Also termed last sickness. last-in, first-out. (1934) An accounting method that assumes that the most recent purchases are sold or used first, matching current costs against current revenues. Abbr. LIFO. Cf. FIRST-IN, FIRST-OUT; NEXT-IN, FIRST-OUT. [Cases: Internal Revenue 31OS.1.] last-injurious-exposure rule. See LAST-EMPLOYER RULE.

last-in-time-marriage presumption. Family law. A pre­ sumption that the most recently contracted marriage is valid. - This presumption generally arises in a situation similar to this: A person, believing himself or herself to be divorced, remarries. This person dies, and the new spouse makes a claim for the decedent's pension benefits. Then a former spouse, claiming that there was never a valid divorce, also claims the right to receive the benefits. The last-in-time-marriage presumption operates so that the former spouse bears the burden of proving that there was no valid divorce. [Cases: Marriage C"-:J40(S).] last-link doctrine. (198S) The rule that an attorney need not divulge nonprivileged information if doing so would reveal information protected by the attor­ ney-client privilege, particularly if the information would provide essential evidence to support indicting or convicting the client of a crime .• This doctrine is often relied on as an exception to the rule that a client's identity is not privileged. For example, ifdivulging the client's name would supply the last link of evidence to indict or convict that client, the attorney need not disclose the client's name. [Cases: Privileged Commu­ nications and Confidentiality (;=> 146.] last-opportunity doctrine. See LAST-CLEAR-CHANCE DOCTRINE.

last-proximate-act test. (1961) Criminal law. A common­ law test for the crime of attempt, based on whether the defendant does the final act necessary to commit an offense (such as pulling the trigger of a gun, not merely aiming it) .• Most courts have rejected this test as being too lenient. See ATTEMPT (2). [Cases: Criminal Law(;=> 44.] last resort, court of. See court of last resort under COURT.

last sickness. See LAST ILLNESS. last-straw doctrine. Employment law. The rule that the termination of employment may be justified by a series of incidents of poor performance, not one of which alone would justify termination, followed by a final incident shOWing a blatant disregard for the employ­ er's interests. last-survivor life insurance. See LIFE INSURANCE.

lator

961

last-treatment rule. The doctrine that, for an ongoing physician-patient relationship, the statute oflimita­ tions on a medical-malpractice claim begins to run when the treatment stops or the relationship ends. [Cases: Limitation of Actions (:::::>55(3).] last will. See WILL. last will and testament. See last will under WILL. lata culpa. See CULPA. lata neglegentia (lay-tJ neg-1J-jen-shee-J). See NEGLE­ GENTIA.

latching. A survey of a mine; an underground survey. late, adj. (bel'. 12c) 1. Tardy; coming after an appointed or expected time . 2. (Of a person) only recently having died . late charge. See CHARGE.

latecomer. See JU~IOR USER.

latens (lay-tenz), adj. [Latin] Hidden or unapparent.

latent (lay-tJnt), adj. (I5c) Concealed; dormant . Cf. PATENT. latent ambiguity. See AMBIGUITY. latent deed. See DEED. latent defect. See hidden defect under DEFECT. latent equity. See EQUITY. latent intent. See dormant legislative intent under LEG­ ISLATIVE INTENT.

latent intention. See dormant legislative intent under LEGISLATIVE

INTE~T.

lateral departure. See DEPART1lRE. lateral sentencing. See lateral departure under DEPAR­ TURE.

lateral support. See SUPPORT (4). laterare (lat-J-rair-ee). [Law Latin] Hist. To lie sideways, rather than endways .• lhis term was formerly used in land descriptions. late-term abortion. See ABORTION. latifundium (lat-J-f;Jn-dee-dm), n. [Latin fro latus "broad" + fundus "land"] Roman law. A large private estate, common in the late Republic. Latin. The language of the ancient Romans and a primary language of the civil and canon law, and formerly of the common law. "The value of the Latin has always consisted in its peculiar expressiveness as a language of law terms, in its superior conciseness which has made it the appropriate language of law maxims, and in its almost unlimited capacity of condensation by means of abbreviations and contractions, many of which are retained in popular use at the present day." 2 Alexander M. Burrill, A Law Dictionary and Glossary 131 (2d ed. 1867). "The Latin maxims have largely disappeared from argu' ments and opinions. In their original phraseology they convey no idea that cannot be well expressed in modern English." William C. Anderson, Law Dictionaries, 28 Am. L. Rev. 531, 532 (1894).

latinarius (lat-d-nair-ee-ds), n. [Latin] Hist. An inter­ preter of Latin. Latini Juniani (ld-tI-m joo-nee-ay-m), n. pl. [Latin "Junian Latins"] Roman law. Informally manumit­ ted slaves who acqUired some rights and privileges as free people, but not Roman citizenship.• They were a special class of freedmen (libertini) who could become citizens. If a Latinus Junianus did not become a citizen, then upon death that person's status reverted to slavery, and his or her patron acquired all the dece­ dent's property. Also termed libertine lunian Latins. See LEX TUNIA NORBANA. Cf. INGENUUS; SERV1lS. "Upon all these persons ... a new and definite status was conferred; they were henceforth to be known as Latini juniani, their position being based upon Latinitas, a status which had been enjoyed by certain latin colonists. A Latinus junianus had no public rights .... But he had part ofthe commercium, i.e. he could acquire proprietary and other rights inter vivos, but not mortis causa. A Latinus junianus, therefore, could neither take under a will ... nor could he make one .... But, subject to these disabilities, a Latinus junianus was a free man, and his children, though not, like the children of citizens, under his potestas, were free-born citizens." R.W. Leage, Roman Private Law 68-69 (C.H. Ziegler ed., 2d ed. 1930).

latitat (lat-d-tat), n. [Law Latin "he lurks"] Hist. A writ issued in a personal action after the sheriff returned a bill of Middlesex with the notation that the defen­ dant could not be found .• The writ was called latitat because of its fictitious recital that the defendant lurks about in the county. It was abolished by the Process in Courts of Law at Westminster Act of 1832 (St. 2, Will. 4, ch. 39). See BILL OF MIDDLESEX; TESTATUM. "Latitat is a writ by which all men in personal actions are originally called in the king's bench to answer. And it is called latitat, because it is supposed by the writ that the defendant cannot be found in the county of Middlesex, as it appears by the return of the sheriff of that county, but that he lurks in another county: and therefore to the sheriff of that county is this writ directed to apprehend him." Termes de la Ley 277 (1 st Am. ed. 1812).

latitatio (lat-d-tay-shee-oh), n. [Law Latin] Civil law. A lurking; a hiding; a concealment, esp. to avoid a trial. Latium majus (Iay-shee-dm may-jds). [Latin] Roman law. 1he greater rights conferred on the inhabitants of Latium and, later, of colonies outside Italy, giving citizenship to all members of the local curia or town council and their children. Cf. LATIUM MINUS. "Under the Principate there is a distinction between Latium maius and Latium minus. The former referred to the rights granted to colonies founded as a coloniae Latinae outside Italy, combined with the concession of Roman citizenship to a larger group of individuals than Latium minus, in which only the municipal magistrates and members of the municipal council ... were rewarded with Roman citizen­ Ship." Adolf Berger, Encyclopedic Dictionary of Roman Law 537-38 (1953).

Latium minus (lay-shee-dm IDI-nds). [Latin] Roman law. The right of citizenship granted to the superior mag­ istrates of provincial colonies. - Also termed minus Latium. Cf. LATIUM MAIUS. lator (lay-t;}r), n. [Latin "a bearer, proposer"] Civil law. 1. A bearer; a messenger. 2. A maker or giver oflaws.

962

latori praesentium

lator; praesentium (lay-tor-I or l. "Some twenty years ago I pointed out two ideas running through definitions of law: one an imperative idea, an idea of a rule laid down by the lawmaking organ of a politically organized society, deriving its force from the authority of the sovereign; and the other a rational or ethical idea, an idea of a rule of right and justice deriving its authority from its intrinsic reasonableness or conformity to ideals of right and merely recognized, not made, by the sover­ eign." Roscoe Pound, "More About the Nature of law," in Legal Essays in Tribute to Orrin Kip McMurray at 513, 515 (1935). "All law is the law of a group of individuals or of groups made up of individuals. No one can make a law purely for himself. He may form a resolution, frame an ambition. or adopt a rule, but these are private prescriptions, not laws." Tony Honore, Making Law Bind: Essays Legal and Philosophical 33 (1987). "It will help to distinguish three senses of the word 'law.' The first is law as a distinctive social institution; that is the sense invoked when we ask whether primitive law is really law. The second is law as a collection of sets of proposi­ the sets we refer to as antitrust law, the law of tions torts, the Statute of Frauds, and so on. The third is law as a source of rights, duties, and powers, as in the sentence 'The law forbids the murdering heir to inherit. Richard A, Posner, The Problems ofJurisprudence 220-21 (1990).

adjective law. See ADJECTIVE LAW.

canon law. See CANO~ LAW.

caselaw. See CASELAW.

dvillaw. See CIVIL LAW.

common law. See COMMON LAW.

963

law and literature

consuetudinary law (kon-swd-t[y]oo-dd-ner-ee). [fro Latin consuetudo "custom"] Hist. Ancient customary law that is based on an oral tradition. conventional law. See CONVENTIONAL LAW. customary law. See CUSTOMARY LAW. divine law. See DIVINE LAW. enacted law. Law that has its source in legislation; WRITTEN LAW.

federal law. See FEDERAL LAW. general law. 1. Law that is neither local nor confined in application to particular persons. _ Even ifthere is only one person or entity to which a given law applies when enacted, it is general law ifit purports to apply to all persons or places of a specified class throughout the jurisdiction. - Also termed general statute; law of a general nature. Cf. special law. [Cases: Statutes (;::) 68.] 2. A statute that relates to a subject of a broad nature. imperative law. A rule in the form of a command; a rule of action imposed on people by some authority that enforces obedience. "Strictly speaking, it is not possible to say that impera­ tive law is a command in the ordinary sense of the word. A 'command' in the ordinary meaning of the word is an expression of a wish by a person or body as to the conduct of another person, communicated to that other person. But (1) in the case of the law there is no determinate person who as a matter of psychological fact commands all the law. We are all born into a community in which law already exists, and at no time in our lives do any of us command the whole law, The most that we do is to play our part in enforcing or altering particular portions of it. (2) Ignorance of the law is no excuse; thus a rule of law is binding even though not communicated to the subject of the law." John Salmond, Jurisprudence 21 n,(c) (Glanville L. Williams ed., 10th ed. 1947).

internal law. 1. Law that regulates the domestic affairs ofa country. Cf. INTERNATIONAL LAW. 2. LOCAL LAW (3).

local law. See LOCAL LAW. moral law. See MORAL LAW. natural law. See NATURAL LAW. partial law. A statute deSigned (usu. intentionally) to affect the rights of only one particular person or only certain classes of people, rather than all people. [Cases: Statutes (::::>77.] permanent law. A statute that continues in force for an indefinite time. positive law. See POSITIVE LAW. procedural law. See PROCEDURAL LAW. prospective law. See prospective statute under STAT­ UTE.

special law. A law that pertains to and affects a par­ ticular case, person, place, or thing, as opposed to the general public. - Also termed special act; private law. Cf. general law (1). [Cases: Statutes (::::J77.] state law. See STATE LAW.

sumptuary law. See SUMPTUARY LAW. tacit law. A law that derives its authority from the people's consent, without a positive enactment. unenacted law. Law that does not have its source in legislation; UNWRITTEN LAW (1). unwritten law. A rule, custom, or practice that has not been enacted in the form of a statute or ordinance. _ The term traditionally includes caselaw. - Also termed jus non scriptum; jus ex non scripta; lex non scripta; jus moribus constitutum. See CASELAW. Cf. written law. "[Tlhe very words of the court promulgating the opinion and making the decision do not determine absolutely the rule of law but. . the rule of law is ascertained by discovering what general proposition was essential to the result reached, and by using the words of the opinion as a mere aid in the ascertaining of that rule, so that, although opinions are written, the authoritative rules derived from them are sometimes not written, but are ascertained by the use of reason, causing case law to be classed as unwritten lex non scripta, to use the Latin phrase." William M. law Lile et aI., Brief Making and the Use of Law Books 335 (3d ed.1914), "In the common law it is not too much to say that the judges are always ready to look behind the words of a precedent to what the previous court was trying to say, or to what it would have said if it could have foreseen the nature of the cases that were later to arise, or if its perception of the relevant factors in the case before it had been more acute. There is, then, a real sense in which the written words of the reported decisions are merely the gateway to something lying behind them that may be called, without any excess of poetic license, 'unwritten law.'" Lon L. Fuller, Anatomy of the Law 145 (1968).

written law. Statutory law, together with constitutions and treaties, as opposed to judge-made law. - Also termed jus scriptum; lex scripta. Cf. unwritten law. law agent. Scots law. See SOLICITOR (4). law and economics. (often cap.) (1979) 1. A diScipline advocating the economic analysis of the law, whereby legal rules are subjected to a cost-benefit analysis to determine whether a change from one legal rule to another will increase or decrease allocative effi­ ciency and social wealth. - Originally developed as an approach to antitrust policy, law and economics is today used by its proponents to explain and interpret a variety oflegal subjects. 2. Ibe field or movement in which scholars devote themselves to this discipline. 3. The body of work produced by these scholars. law and literature. (often cap.) (1997) 1. Traditionally, the study of how lawyers and legal institutions are depicted in literature; esp., the examination of law­ related fiction as sociological evidence of how a given culture, at a given time, views law, Also termed law in literature. 2. More modernly, the application of literary theory to legal texts, focusing esp. on lawyers' rhetoric, logic, and style, as well as legal syntax and semantics. - Also termed law as literature. 3. The field or movement in which scholars devote themselves to this study or application. 4. lhe body ofwork produced by these scholars.

964

law arbitrary

law arbitrary. A law not found in the nature of things, but imposed by the legislature's mere will; a bill not immutable. law as literature. See LAW AND LITERATURE (2). law between states. See INTERNATIONAL LAW. lawbook. (16c) A book, usu. a technical one, about the law; esp., a primary legal text such as a statute book or book that reports caselaw. - Also written law book. lawbreaker, n. (I5c) A person who violates or has violated the law. lawburrows (law-b;;!r-ohz). Scots law. 1. An action requir­ ing security for the peaceable behavior of a party. 2. Security obtained by a party apprehensive of danger to safeguard the peace. law clerk. 1. See CLERK (4). 2. See PARALEGAL (2). law commission. (often cap.) An official or quasi-offi­ cial body of people formed to propose legal reforms intended to improve the administration of justice. ­ Such a body is often charged with the task ofreviewing the law with an eye toward systematic development and reform, esp. through codification. law court. 1. See COURT (1). 2. See COURT (2). - Also written law-court. law court of appeals. Hist. An appellate tribunal, formerly existing in South Carolina, for hearing appeals from the courts oflaw. law-craft, n. (l6c) The practice oflaw. 'This quest for ever· broader empirical understanding must, of course, be kept under reasonable control in practical law-craft, lest it delay necessary decisions in a continu­ ally expanding and pointlessly expensive fact·finding spiral." Bruce A. Ackerman, Reconstructing American Law 30 (1984).

law day. 1. Archaic. The yearly or twice-yearly meeting of one ofthe early common-law courts. 2. Archaic. The day appointed for a debtor to discharge a mortgage or else forfeit the property to the lender. [Cases: Mort­ gages (;:::::::'301, 335, 599(1).] 3. (cap.) A day on which American schools, public assemblies, and courts draw attention to the importance oflaw in modern society. • Since 1958, the ABA has sponsored Law Day on May 1 of each year. law department. A branch of a corporation, government agency, university, or the like charged with handling the entity's legal affairs. law enforcement. (1895) 1. The detection and punish­ ment ofviolations of the law. _ This term is not limited to the enforcement of criminal laws. For example, the Freedom of Information Act contains an exemption from disclosure for information compiled for law­ enforcement purposes and furnished in confidence. That exemption is valid for the enforcement of a variety of noncriminal laws (such as national-security laws) as well as criminal laws. See 5 USCA § 552(b)(7). 2. CRIMINAL TlJSTICE (2). 3. Police officers and other members of the executive branch of government

charged with carrying out and enforcing the criminal law. Law Enforcement Assistance Administration. A former federal agency (part ofthe Department ofJustice) that was responsible for administering law-enforcement grants under the Omnibus Crime Control and Safe Streets Act of 1968. - It has been replaced by a variety of federal agencies, including the National Institute of Corrections and National Institute ofJustice. - Abbr. LEAA. Law Enforcement Information Network. A computer­ ized communications system that some states use to document driver's-license records, automobile regis­ trations, wanted-persons' files, and the like. - Abbr. LEIN. law-enforcement officer. A person whose duty is to enforce the laws and preserve the peace. See PEACE OFFICER; SHERIFF. (Cases: Municipal Corporations (;::::c 180(1).1 law-enforcement system. See CRIMINAL-JUSTICE SYSTEM.

law firm. (1852) An association oflawyers who practice law together, usu. sharing clients and profits, in a business organized traditionally as a partnership but often today as either a professional corporation or a limited-liability company.• Many law firms have a hierarchical structure in which the partners (or share­ holders) supervise junior lawyers known as "associ­ ates," who are usu. employed on a track to partnership. [Cases: Attorney and Client (;:::::::030.] captive law firm. A law firm staffed by employees of an insurance company. _ These lawyers typically defend insureds in lawsuits covered under the insur­ er's liability policies. The insurer's use ofa captive firm to defend an insured raises ethical questions about whether the lawyers will act in the insured's best interests. Often shortened to captive firm. [Cases: Attorney and Client C--::>32(4), 32(9).] Law French. (17c) The corrupted form of the Norman French language that arose in England in the centuries after William the Conqueror invaded England in 1066 and that was used for several centuries as the primary language of the English legal system; the Anglo-French used in medieval England in judicial proceedings, pleadings, and lawbooks. Also written law French. Abbr. L.F. See NORMAN FRENCH. uTo the linguist, law French is a corrupt dialect by defi­ nition. Anglo-French was in steady decline after 1300. Lawyers such as Fortescue, on the other hand, were probably serious in maintaining that it was the vernacu­ lar of France which was deteriorating by comparison with the pristine Norman of the English courts. That Fortescue could make such a claim, while living in France, is in itself a clear demonstration that by the middle of the fifteenth century there was a marked difference between the French of English lawyers and the French of France." J.H. Baker, A Manual of Law F,.encn 11 (1979). "Law French refers to the Anglo·Norman patois used in legal documents and all judicial proceedings from the 12605 to the reign of Edward III (1327-1377), and used with frequency in legal literature up to the early 18th century.

965

Law Lord When first introduced into England, this brand of French was the standard language used in Normandy; by the BOOs, through linguistic isolation, it became a corrupted language by French standards, at any rate." Bryan A. Garner. A Dictionarv of Modern Legal Usage 504-05 (2d ed. 1995). "That Law French was barbarous in its decrepitude does not in the least diminish the value of it to our law when it was full of vitality. It helped to make English law one of the four indigenous systems of the civilized world, for it exactly expressed legal ideas in a technical language which had no precise equivalent." Percy H. Winfield, The Chief Sources of English Legal History 14 (1925).

lawful, adj. (13c) Not contrary to law; permitted by law . See LEGAL. lawful admission. (1899) Immigration. Legal entry into the country, including under a valid immigrant visa. _ Lawful admission is one of the requirements for an immigrant to receive a naturalization order and certifi­ cate. 8 USCA §§ 1l0l(a)(20), 1427(a)(l), 1429. lawful age. (I6c) 1. See age ofcapacity under AGE. 2. See age ofmajority (1) under AGE. lawful arrest. See ARREST. lawful authorities. (16c) Those persons (such as the police) with the right to exercise public power, to require obedience to their lawful commands, and to command or act in the public name. lawful cause. See good cause under CAUSE (2). lawful condition. See CONDITION (2). lawful damages. See DAMAGES. lawful deed. See good deed under DEED. lawful dependent. See DEPENDENT. lawful entry. See ENTRY (1). lawful fence. (17c) A strong, substantial, and well­ suited barrier that is sufficient to prevent animals from escaping property and to protect the property from trespassers. - Also termed legal fence; good and lawful fence. Cf. SPITE FENCE. [Cases: Animals Fences (;:::> 1, 19.] lawful goods. (l6c) Property that one may legally hold, sell, or export; property that is not contraband. lawful heir. See HEIR (1). lawful interest. See INTEREST (3). lawful issue. See ISSCE (3). lawful man. See LEGALIS HOMO. lawful money. See MONEY. lawful process. See legal process under PROCESS. lawful representative. See REPRESENTATIVE. Jawgiver. (14c) 1. A legislator, esp. one who promulgates an entire code of laws. 2. A judge with the power to interpret law. lawgiving, adj. & n. 'john Chipman Gray in his The Nature and Sources of the Law (1921) repeats a number of times a quotation from Bishop Hoadley [1676-1761 l: 'Whoever hath an absolute authority to interpret any written or spoken laws, it is he who is truly the Law·giverto all intents and purposes, and

not the person who first wrote or spoke them.''' Lon L. Fuller, Anatomy of the Law 23-24 (1968).

law guardian. See guardian ad litem under GUARDIAN. law-hand. Hist. An outmoded rococo method of hand­ writing once used by scribes in preparing legal docu­ ments. law in action. The law as applied in the day-to-day workings of the legal system, as opposed to the law found in books. - Sometimes written law-in-action. See LEGAL REALISM. Cf. LAW IN BOOKS. law in books. The legal rules to be found in texts; esp., sterile, oft-repeated rules that seem to depart from the way in which the law actually operates in the day-to­ day workings of the legal system. - Sometimes written law-in-books. Cf. LAW IN ACTION. law in literature. See LAW AND LITERATURE (1). law journal. 1. A legal periodical or magazine, esp. one published by a bar association. Abbr. 1.1. 2. LAW REVIEW

(1).

Law Latin. (16c) A corrupted form of Latin formerly used in law and legal documents, including judicial writs, royal charters, and private deeds. _ It primar­ ily consists of a mixture of Latin, French, and English words used in English sentence structures. - Abbr. L.L.; L. Lat. Also written law Latin. A technical kind of Latin, in which the pleadings and proceedings of the English courts were enrolled and recorded from a very early period to the reign of George II .... The principal peculiarities of this language consist first, in its construction, which is adapted so closely to the English idiom as to answer to it sometimes word for word; and, secondly, in the use of numerous words 'not allowed by grammarians nor having any countenance of Latin,' but framed from the English by merely adding a Latin termina· tion, as murdrumfrom murder ...." 2 Alexander M. Burrill, A Law Dictionary and Glossary 135 (2d ed. 1867). "LAW LATIN.

"Law Latin, sometimes formerly called 'dog Latin,' is the bastardized or debased Latin formerly used in law and legal documents. For the most part, we have escaped its clutches. In 1730, Parliament abolished Law Latin in legal proceedings, but two years later found it necessary to allow Latin phrases that had previously been in common use, such as fieri facias, habeas corpus, ne exeat, and nisi prius. As Blackstone would later say, some Latinisms were 'not ... capable of an English dress with any degree of serio ousness.' 3 William Blackstone. Commentaries 323 (1768)." Bryan A. Garner, A Dictionarv of Modern Legal Usage 505 (2d ed. 1995).

law list. (ISc) 1. A published compilation of the names and addresses of practicing lawyers and other infor­ mation of interest to the profession, such as legal organizations, court calendars, rosters of specialists, court reporters, and the like. 2. A legal directory that provides biographical information about lawyers, such as Martindale-Hubbell. - Many states and large cities have law lists or directories. See MARTINDALE-HUBBELL LAW DIRECTORY.

Law Lord. (I8c) A member of the appellate committee of the House of Lords, consisting of the Lord Chancel­ lor, the salaried Lords of Appeal in Ordinary, and any peer who holds or has held high judicial office. Also written law lord.

lawmaker

lawmaker. See LEGISLATOR.

lawmaking. See LEGISLATION (1).

law martial. See MARTIAL LAW.

law merchant. A system of customary law that developed

in Europe during the Middle Ages and regulated the dealings of mariners and merchants in all the com­ mercial countries ofthe world until the 17th century.• Many ofthe law merchant's principles came to be incor­ porated into the common law, which in turn formed the basis ofthe Uniform Commercial Code. Also termed

commercial law; lex mercatoria. lawnote. See NOTE (2).

law of a general nature. See general law under LAW.

law of arms. See ARMS, LAW OF.

law of capture. See RULE OF CAPTURE.

law of Citations. See CITATIONS, LAW OF.

law of competence. A law establishing and defining the

powers of a government official, including the circum­ stances under which the official's pronouncements con­ stitute laws. - Also termed power-delegating law. See jural act under ACT; JURAL AGENT. [Cases: Officers and Public Employees (;::::; 103.J law of deceit. Hist. The body of 19th-century common­ law torts that developed into the modern laws oftrade­ mark, securities fraud, deceptive trade practices, and unfair competition. law of evidence. See EVIDENCE (4). law officer. 1. A police officer, sheriff, or other person with law-enforcement authority. 2. In most common­ law jurisdictions, a senior administrator ofjustice, such as an attorney general, solicitor general, or other high­ level minister or officer of justice. law of Langobardi. See LOMBARD LAW. law of Lombardy. See LOMBARD LAW. law of marque (mahrk). A rule of reprisal allOWing one who has been wronged but cannot obtain justice to take the goods of the wrongdoer found within the wronged person's precinct, in satisfaction of the wrong. law of nations. See INTERNATIONAL LAW. law of nature. See NATURAL LAW. law of nature and nations. See INTERNATIONAL LAW. law of obligations. The category of law dealing with proprietary rights in personam - namely, the rela­ tions between obligor and obligee.• It is one of the three departments into which civil law was tradition­ ally divided. See IN PERSONAM. Cf. LAW OF PROPERTY; LAW OF STATUS. law of persons. (17c) The law relating to persons; the law that pertains to the different statuses of persons.• This is also commonly known as the jus personarum, a shortened form ofjus quod ad personas pertinet nhe law that pertains to persons"). See JUS PERSONARt:M. law ofproperty. The category oflaw dealing with propri­ etary rights in rem, such as personal servitudes, predial

966

servitudes, and rights of real security.• It is one ofthe three departments into which civil law was tradition­ ally divided: persons, property, and modes of acquir­ ing property (obligations). In modern civil codes that follow the model of the German Civil Code, civil law is divided into five books: general principles, obligations, family law, property, and succession. See IN REM. Cf. LAW OF OBLIGATIONS; LAW OF STATUS. law of remedy. See REMEDY. law of shipping. The part of maritime law relating to the building, equipping, registering, owning, inspect­ ing, transporting, and employing of ships, along with the laws applicable to shipmasters, agents, crews, and cargoes; the maritime law relating to ships. - Also termed shipping law. See MARITIME LAW; JONES ACT. law of status. The category oflaw dealing with personal or nonproprietary rights, whether in rem or in personam.• It is one of the three departments into which civil law is divided. Cf. LAW OF OBLIGATIONS; LAW OF PROPERTY. law of the apex. Mining law. The principle that title to a given tract of mineral land, with defined mining rights, goes to the person who locates the surface covering the outcrop or apex. law of the case. (18c) 1. The doctrine holding that a decision rendered in a former appeal ofa case is binding in a later appeal. lCases: Appeal and Error (;::::; 1097; Courts (;::::;99, 917.J 2. An earlier decision giving rise to the application ofthis doctrine. Cf. LAW OF THE TRIAL; RES JUDICATA; STARE DECISIS. law of the circuit. (1861) 1. The law as announced and followed by a U.S. Circuit Court of Appeals. [Cases: Courts (;::::;96(4).] 2. The rule that one panel of judges on a U.S. Circuit Court of Appeals should not overrule a decision of another panel ofjudges on the same court. [Cases: Courts (;::::.'90(2).] 3, The rule that an opinion of one U.S. Circuit Court of Appeals is not binding on another circuit but may be considered persuasive. [Cases: Courts C=96(5).] law of the flag. Maritime law. The law ofthe nation whose flag is flown by a particular vessel where it is registered . • That nation's laws govern the ship's internal affairs.

See McCulloch v. Sociedad de Marineros de Honduras, 372 U.S. 10 (1963). [Cases: Shipping (;.-::>2.] law of the forum. See LEX FORI. Law of The Hague. The first widely accepted body of international law of war, as approved by conventions in The in 1899 and 1907.• The Law of The Hague set up procedures for mediation and arbitration of disputes to avoid war, and attempted to regulate the type and use of weapons in warfare. See LIEBER CODE. law ofthe land. (15c) 1. The law in effect in a country and applicable to its members, whether the law is statutory, administrative, or case-made. 2. Due process oflaw. See DUE PROCESS. Also termed lex terrae; ley de terre. [Cases: Constitutional Law (;::::;3840-484L]

967

law of the partnership. The rule that the parties' agree­ ment controls the features of a partnership. law of the place. (1947) Under the Federal Tort Claims Act, the state law applicable to the place where the injury occurred.• Under the Act, the federal gov­ ernment waives its sovereign immunity for specified injuries, including certain wrongful acts or omis­ sions of a government employee causing injury that the United States, if it were a private person, would be liable for under the law of the state where the incident occurred. 28 FSCA § 1346(b). [Cases: United States (;:::>78(14).] law of the road. The collective statutes, rules, and customs that regulate travel on public highways and streets. law of the sea. The body of international law governing how nations use and control the sea and its resources. Cf. GENERAL MARITIME LAW; MARITIME LAW. [Cases: International Law (;:::> 7.] law of the staple. Hist. The law administered in the court of the mayor of the staple; the law merchant. See STAPLE (1), (2). law ofthe trial. A legal theory or court ruling that is not objected to and is used or relied on in a trial 639-668.] contingent legacy. (18c) A legacy that depends on an uncertain event and thus has not vested. - An example is a legacy given to one's granddaughter "if she attains the age of21. [Cases: Wills (;=>628-638.] cumulative legacy. See additional legacy. demonstrative legacy (di-mon-str586.] pecuniary legacy (pi-kyoo-nee-er-ee). (18c) A legacy of a sum of money. [Cases: Wills C=>567.] reSiduary legacy (ri-zij-oo-er-ee). (l8c) A legacy ofthe estate remaining after the satisfaction of all claims and all specific, general, and demonstrative legacies. [Cases: Wills C=>586.] special legacy. See spec~fic legacy. specific legacy. (l8c) A legacy of a specific or unique item ofproperty, such as any real estate or a particu­ lar piece of furniture. Also termed specialZegacy. [Cases: Wills 754.] substitutional legacy. (1894) A legacy that replaces a different legacy already given to a legatee. trust legacy. A legacy of personal property to trustees to be held in trust, with the income usu. paid to a specified beneficiary. universal legacy. Louisiana law. A testamentary dispo­ sition of all property, movable and immovable, to one or more persons. La. Civ. Code art. 1585. Cf. general

legacy; legacy under a universal title; particular legacy. [Cases: Wills C=>583.]

vested legacy. (18c) A legacy given in such a way that the legatee has a fixed, indefeasible right to its payment. ­ A legacy is said to be vested when the testator's words making the bequest convey a transmissible interest, whether present or future, to the legatee. Thus, a legacy to be paid when the legatee reaches the age of 21 is a vested legacy because it is given unconditionally and absolutely. Although the legacy is vested, the legatee's enjoyment of it is deferred. Cf. absolute legacy; contin­ gent legacy. [Cases: Wills (:::'628-638.) void legacy. (l8c) A legacy that never had any legal exis­ tence. - The subject matter of such a legacy is treated as a part of the estate and passes under the residuary clause of a will or (in the absence ofa residuary clause) under the rules for intestate succession. [Cases: Wills ~849-872.]

legacy duty. See legacy tax under TAX. legacy tax. See TAX. legal, adj. (lSc) 1. Of or relating to law; falling within the province oflaw <pro bono legal services>. 2. Estab­ lished, required, or permitted by law; LAWFUL . 3. Of or relating to law as opposed to equity. [Cases: Action C=>21.J legal act. (l5c) 1. Any act not condemned as illegal. • For example, a surgeon's incision is a legal act, while stabbing is an illegal one. 2. An action or undertaking that creates a legally recognized obligation; an act that binds a person in some way.

Legal Code "A lunatic, though capable of holding property, was in Roman law incapable of any legal act." Thomas E. Holland, The Elements ofJurisprudence 354 (13th ed. 1924).

3. See act in the law under ACT. 4. See act of the law under ACT. legal-acumen doctrine (lee-gal a-kyoo-man). (1905) The principle that ifa defect in, or the invalidity of, a claim to land cannot be discovered without legal expertise, then equ ity may be invoked to remove the cloud created by the defect or invalidity. legal-advice exception. 1. The rule that an attorney may withhold as privileged the client's identity and infor­ mation regarding fees, if there is a strong probability that disclosing the information would implicate the client in the criminal activity for which the attorney was consulted. [Cases: Privileged Communications and Confidentiality C=> 146.)2. An exemption contained in open~meetings legislation, permitting a governmen­ tal body to meet in closed session to consult with its attorney about certain matters. [Cases: Administrative Law and Procedure C=> 124.] legal age. (l8c) 1. See age ofcapacity under AGE. 2. See age ofmajority (1) under AGE. legal aid. (1890) Free or inexpensive legal services provided to those who cannot afford to pay full price. - Legal aid is usu. administered locally by a specially established organization. See LEGAL SERVICES CORPO­ RATION.

legal analyst. See PARALEGAL. legal asset. See ASSET. legal assistant. (1939) 1. PARALEGAL. 2. A legal secre­ tary. legal benefit. See BENEFIT (2). legal brief. See BRIEF (1). legal capital. See CAPITAL. legal cause. See proximate cause under CAUSE (1). legal centralism. The theory suggesting that state~con­ structed legal entities form the center oflegallife and control lesser normative systems (such as the family or business networks) that define appropriate behavior and social relationships. - Also termed legal centrism;

legocentrism

(lee-goh-sen-triz-~m).

legal-certainty test. (1964) Civil procedure. A test deSigned to determine whether the amOl1nt in contro­ versy satisfies the minimum needed to establish the court's jurisdiction. _ The amount claimed in the com­ plaint will control unless there is a "legal certainty" that the claim is actually less than the minimum amount. See AMOUNT IN CONTROVERSY. [Cases: Federal Courts C=>350, 359; Removal of Cases C=>75, 107(7).] legal citology (sl-tol-a-jee). (1996) 'The study of citations (esp. in footnotes) and their effect on legal scholar­ ship. Often shortened to citology. legal citologist (sI~tol-a-jist), n. Legal Code. See CODE (2).

976

legal conclusion

legal conclusion. (l7c) A statement that expresses a legal duty or result but omits the facts creating or supporting the duty or result. Cf. CONCLUSION OF LAW; CONCLU­ SION OF FACT; FINDING OF FACT.

legal consideration. See valuable consideration under CONSIDERATION

(1).

legal correlative. A legal status that has a corresponding or reciprocal status, such as a right that corresponds to a duty.• Wesley Newcomb Hohfeld ofYale Law School first introduced the bases for the concept oflegal correl­ atives in two articles published in the Yale Law Journal in 1913 and 1917. He polished the concept in the book

Fundamental Legal Conceptions, as Applied in Judicial Reasoning and Other Legal Essays, published posthu­ mously in 1919. "Rights and duties have a distinct relationship and are called legal correlatives by Hohfeld. In terms of intellectual property, the right is a right to do certain things, such as making copies of a work of copyright, making articles to a design covered by a design right, or making products in accordance with a patented invention. The correlative duty is a duty owed by all others not to infringe the right. This duty exists even if the person infringing the right does not know of it. Looking at Hohfeld's scheme again, it can be seen that there are associated privileges and' no rights.' The right resulting from the operation of intellec· tual property gives the owner of that right a corresponding privilege, that is the privilege to exploit the work. The cor­ relative 'no right' is to the effect that persons other than the owner do not have this privilege." David Bainbridge, Intellectual Property 11 (5th ed. 2002),

legal cruelty. See CRUELTY. legal custody. 1. See CUSTODY (2). 2. See CUSTODY (3). 3. See DECISION-MAKING RESPONSIBILITY. legal custom. See CUSTOM. legal death. 1. See brain death under DEATH. 2. See civil death (2) under DEATH. 3. See civil death (3) under DEATH.

legal debt. See DEBT. legal defense. See DEFENSE (1). legal demand. See DEMAND (1). legal dependent. See DEPENDENT. legal description. (18c) A formal description of real property, including a description of any part subject to an easement or reservation, complete enough that a particular piece ofland can be located and identified. • The description can be made by reference to a gov­ ernment survey, metes and bounds, or lot numbers ofa recorded plat. - Also termed land description. [Cases: Deeds 37.] legal detriment. See DETRIMENT (2). legal discretion. See judicial discretion under DISCRE­ TION.

legal distributee. See DISTRIBUTEE. legal drafting. See DRAFTING. legal duty. See DUTY (1). legal-elements test. (1980) Criminal law. A method of determining whether one crime is a lesser included

offense in relation to another crime, by examining the components of the greater crime to analyze whether a person who commits the greater crime necessarily commits the lesser one too. Also termed same-ele­ ments test. [Cases: Double Jeopardy 162; Indictment and Information 189, 191.] legal entity. (18c) A body, other than a natural person, that can function legally, sue or be sued, and make deci­ sions through agents .• A typical example is a corpora­ tion. C[ artificial person under PERSON (3). legalese (lee-ga-leez). (1914) The jargon characteristically used by lawyers, esp. in legal documents . - Also termed law-talk. See PLAIN­

;)

LANGUAGE MOVEMENT.

legal estate. See ESTATE (1). legal estoppel. See ESTOPPEL. legal ethics. (1828) 1. Standards ofprofessional conduct applicable to members of the legal profeSSion.• Ethical rules consist primarily of the ABA Model Rules of Pro­ fessional Conduct and the earlier ABA Model Code of Professional Responsibility, together with related regulatory judgments and opinions. The Model Rules of Professional Conduct have been enacted into law, often in a modified form, in most states. 2. The study of such standards. 3. A lawyer's practical observance of or conformity to established standards ofprofeSSional conduct. See MODEL RULES OF PROFESSIONAL CONDUCT. [Cases: Attorney and Client 32(2).] "In one sense, the term 'legal ethics' refers narrowly to the system of professional regulations governing the conduct of lawyers. In a broader sense, however, legal ethics is simply a special case of ethics in general, as ethics is understood in the central traditions of philosophy and religion. From this broader perspective, legal ethics cuts more deeply than legal regulation: it concerns the funda­ mentals of our moral lives as lawyers." Deborah L. Rhode & David Luban, Legal EthicS 3 (1992).

legal etiquette. The profeSSional courtesy that lawyers have traditionally observed in their professional conduct, shown through civility and a strong sense of honor. - Also termed etiquette ofthe profession. legal evidence. See EVIDENCE. legal excuse. See EXCUSE (2). legal fact. See FACT. legal father. See FATHER. legal fence. See LAWFUL FENCE. legal fiction. (l7c) An assumption that something is true even though it may be untrue, made esp. in judicial rea­ soning to alter how a legal rule operates; specif., a device by which a legal rule or institution is diverted from its original purpose to accomplish indirectly some other object. • The constructive trust is an example of a legal Also termed fiction. - Often shortened to fiction. fiction oflaw;fictio juris. [Cases: Trusts "I ... employ the expression 'Legal Fiction' to signify any assumption which conceals, or affects to conceal, the fact that a rule of law has undergone alteration, its letter remaining unchanged, its operation being modified ....

legally

977 It is not difficult to understand why fictions in all their forms are particularly congenial to the infancy of society. They satisfy the desire for improvement, which is not quite wanting, at the same time that they do not offend the superstitious disrelish for change which is always present:' Henry S. Maine, Ancient Law 21-22 (1 7th ed. 1901). "legal fiction is the mask that progress must wear to pass the faithful but blear-eyed watchers of our ancient legal treasures. But though legal fictions are useful in thus miti­ gating or absorbing the shock of innovation, they work havoc in the form of intellectual confusion." Morris R. Cohen, Law and the Social Order 126 (1933).

legal force. See reasonable force under FORCE. legal formalism, n. (1895) The theory that law is a set of rules and principles independent of other political and social institutions .• Legal formalism was espoused by such scholars as Christopher Columbus Langdell and Lon Fuller. Cf. LEGAL REALISM. legal formalist, n. legal fraud. See constructive fraud (I) under FRAUD. legal heir. See HEIR (1). legal holiday. (1867) A day designated by law as exempt from court proceedings, issuance of process, and the like.• Legal holidays vary from state to state. Some­ times shortened to holiday. - Also termed nonjudicial day. [Cases: Holidays (~L] legal hybrid. Property. A cooperative housing unit in which the same person holds a lease and also owns stock in the cooperative association that owns or leases the unit. [Cases: Landlord and TenantC=>350.] legal impossibility. See IMPOSSIBILITY. legal inconsistency. See legally inconsistent verdict under VERDICT.

legal injury. See INJURY. legal-injury rule. (1956) The doctrine that the statute of limitations on a claim does not begin to run until the claimant has sustained some legally actionable damage. • Under this rule, the limitations period is tolled until the plaintiff has actually been injured. Also termed damage rule. [Cases; Limitation of Actions C=>43.] legal innocence. See INNOCENCE. legal insanity. See INSANITY. legal instrument. See INSTRUMENT (1). legal interest. 1. INTEREST (2). 2. INTEREST (3). legal interruption. See INTERRUPTION. legal intromission. See INTROMISSION. legal investments. See LEGAL LIST. legalis homo (Ia-gay-lis hoh-moh). [Latin "lawful man"] Hist. A person who has full legal capacity and full legal rights; one who has not been deprived of any rights in court by outlawry, excommunication, or infamy.• A legalis homo was said to stand rectus in curia ("right in court"). A lawful man was able to serve as a juror and to swear an oath. Pl.legales homines (la-gay-leez hom-a­ neez). - Also termed legal man; lawful man; lageman; liber et legalis homo. See RECTUS IN CURIA.

legalism, n. (1928) 1. Formalism carried almost to the point of meaninglessness; an inclination to exalt the importance oflaw or formulated rules in any area of action. "What is legalism? It is the ethical attitude that holds moral conduct to be a matter of rule following, and moral rela­ tionships to consist of duties and rights determined by rules." Judith N. Shklar, Legalism: Law, Morals, and Political Trials 1 (1964). "If ... the law and the lawyer are to make a socially valuable contribution to the operation of the social security system, there must be abandoned old- established habits of thought as to the nature of law and the whole gamut of practices summed up in the layman's word of deadly insult, 'legalism' his word for rigid attachment to legal prec­ edent, the substitution of legal rule for policy, the fettering of discretion, the adversary style, the taking of technical points, formality." leslie Scarman, English Law The New Dimension 43 (1974).

2. A mode of expression characteristic oflawyers; a jargonistic phrase characteristic of lawyers, such as "pursuant to." legalis moneta Angliae (la-gay-lis ma-nee-ta ang-glee­ eel, n. [Latin] Lawful money of England. legal issue. See ISSUE (1). legalist, n. (1829) A person who views things from a legal or formalistic standpoint; esp., one who believes in strict adherence to the letter of the law rather than its spirit. legalistic, adj. (l7c) Characterized by legalism; exalting the importance of law or formulated rules in any area of action . legality. (ISc) 1. Strict adherence to law, prescription, or doctrine; the quality ofbeing legal. 2. The principle that a person may not be prosecuted under a criminal law that has not been previously published. Also termed (in sense 2) principle oflegality. legalize, vb. (18c) 1. To make lawful; to authorize or justify by legal sanction . 2. To imbue with the spirit of the law; to make legalistic . -legalization, n. legalized nuisance. See NUISANCE. legal jeopardy. See JEOPARDY. legal jointure. See JOINTURE (2). legal liability. See LIABILITY (1). legal life estate. See life estate under ESTATE (1). legal life tenant, See LIFE TENANT. legal list. A group of investments in which institutions and fiduciaries (such as banks and insurance com­ panies) may legally invest according to state statutes. • States usu. restrict the legal list to low-risk securi­ ties meeting certain specifications. - Also termed approved list; legal investments. legally, adv. (16c) In a lawful way; in a manner that accords with the law.

legally determined

legally determined, adj. (17c) (Of a claim, issue, etc.) decided by legal process . legally incapacitated person. (1919) A person, other than a minor, who is temporarily or permanently impaired by mental illness, mental deficiency, physical illness or disability, or alcohol or drug use to the extent that the person lacks sufficient understanding to make or com­ municate responsible personal decisions or to enter into contracts. Abbr. LIP. - Also termed legally incom­ petent person; incompetent, n. legally inconsistent verdict. See VERDICT. legally liable. See LIABLE. legally protected interest. See INTEREST (2). legally sufficient consideration. See sufficient consider­ ation under CONSIDERATION (1). legal malice. See implied malice under MALICE. legal malpractice. See MALPRACTICE. legal man. See LEGALIS HOMO. legal maxim. See MAXIM. legal memory. (1882) The period during which a legal right or custom can be determined or established.• Traditionally, common-law legal memory began in the year 1189, but in 1540 it became a steadily moving period of 60 years. Cf. TIME IMMEMORIAL (1). "Because of the importance to feudal landholders of seisin and of real property in general, the writ of right has been called 'the most solemn of all actions.' Nevertheless, it was believed that the time within which such a complain­ ant would be allowed to prove an ancestor to have been seised of the estate in question must be limited. At first this was done by selecting an arbitrary date in the past, before which 'legal memory' would not run. The date initially was Dec. 1, 1135 (the death of Henry I); in 1236 it was changed by statute to Dec. 19, 1154 (the coronation of Henry II); and in 1275 it became Sept. 3, 1189 (the coronation of Richard I). Finally, in 1540, an arbitrary period of sixty years was set as the period of 'legal memory.' The latter change was probably made because it was felt that a 350-year statute of limitations was somewhat awkward." Thomas F. Bergin & Paul G. Haskell, Preface to Estates in Land and Future Interests 45 n.65 (2d ed. 1984).

legal mind. (i8c) The intellect, legal capacities, and attitudes of a well-trained lawyer - often used as a personified being . legal monopoly. See MONOPOLY. legal moralism. (1963) The theory that a government or legal system may prohibit conduct that is considered immoraL legal mortgage. See MORTGAGE. legal name. See NAME. legal negligence. See negligence per se under NEGLI­ GENCE.

legal newspaper. See ;-JEWSPAPER. legal notice. See NOTICE. legal obligation. See OBLIGATION.

978 legal officer. See OFFICER (2). legal opinion. See OPINION (2). legal order. (l6c) 1. Traditionally, a set of regulations governing a society and those responsible for enforcing them. 2. Modernly, such regulations and officials plus the processes involved in creating, interpreting, and applying the regulations. legal owner. See OWNER. legal parent. See PARENT (1). legal paternalism. (1913) The theory that a government or legal system is justified in controlling the individual and private affairs of citizens.• This theory is often associated with legal pOSitivists. See PATERNALISM; LEGAL POSITIVISM.

legal person. See artificial person under PERSON (3). legal personality. See PERSONALITY (1). legal-personal representative. See REPRESENTATIVE. legal philosophy. See general jurisprudence (2) under JURISPRUDENCE.

legal pneumoconiosis. See PNEUMOCONIOSIS. legal portion. See LEGITIME. legal positivism, n. (I939) The theory that legal rules are valid only because they are enacted by an existing political authority or accepted as binding in a given society, not because they are grounded in morality or in natural law. - Legal positivism has been espoused by such scholars as H.L.A. Hart. See POSITIVE LAW. Cf. LOGICAL POSITIVISM. - legal positivist, n. "[Ilt will be helpful to offer some comparisons between legal positivism and its counterpart in science. Scien­ tific positivism condemns any inquiry projecting itself beyond observable phenomena; it abjures metaphysics, it renounces in advance any explanation in terms of ultimate causes. Its program of research is to chart the regulari­ ties discernible in the phenomena of nature at the point where they become open to human observation, without asking as it were - how they got there. In the setting of limits to inquiry there is an obvious parallel between scien­ tific and legal positivism. The legal positivist concentrates his attention on law at the point where it emerges from the institutional processes that brought it into being. It is the finally made law itself that furnishes the subject of his inquiries. How it was made and what directions of human effort went into its creation are for him irrelevancies." Lon L. Fuller, Anatomy of the Law 177-78 (1968).

legal possessor. See POSSESSOR. legal practice. See PRACTICE OF LAW. legal practitioner. 1. A lawyer. 2. In the traditional English system, a member of one of the recognized branches ofpractice. "Legal practitioners may be either barristers, special pleaders not at the bar, certified conveyancers, or solici­ tors. The three latter may recover their fees, but the first may not, their acting being deemed of a voluntary nature, and their fees merely in the light of honorary payments; and it follows from this, that no action lies against them for negligence or unskilfulness." John Indermaur, Principles of the Common Law 169 (Edmund H. Bennett ed., 1st Am. ed. 1878).

legal prejudice. See PREJUDICE.

979

legal presumption. See presumption of law under PRE­ SUMPTION.

legate

to provide legal services. - TIle agency was created by the Legal Services Corporation Act of 1974.42 USCA § 2996. [Cases: Corporations 122-147.] wrongful levy. (18c) A levy on a third party's property that is not subject to a writ of execution. [Cases: Exe­ cution (::::'459.] levy, vb. (l4c) 1. To impose or assess (a fme or a tax) by legal authority . 2. To enlist for service in the military . 3. To declare or wage (a war) . 4. To take or seize property in execution of a judgment 144.] "The lex loci contractus controls the nature, construction, and validity of the contract; and on this broad foundation the law of contracts, founded on necessity and commercial convenience, is said to have been originally established. If the rule were otherwise, the citizens of one country could not safely contract, or carryon commerce, in the territories of another." 2 James Kent, Commentaries on American Law *454 (George Comstock ed., 11 th ed. 1866).

lex loci delicti (leks lob-51 d 103.] lex loci rei sitae (leks lob-sl ree-1 sl-tee). [Latin] LEX SITUS.

lex loci solutionis (leks loh-si s;:J-Ioo-shee-oh-nis). [Latin "law ofthe place of solution"] The law ofthe place where a contract is to be performed (esp. by payment). Otten shortened to lex solutionis. lex Longobardorum (leks long-goh-bahr-dor-301-307; Products Liability C=:::> lB.] tortious liability. Liability that arises from the breach of a duty that (1) is fixed primarily by the law, (2) is owed to persons generally, and (3) when breached, is redressable by an action for unliquidated damages. vicarious liability (vl-kair-ee-..s). (1890) Liability that a supervisory party (such as an employer) bears for the actionable conduct of a subordinate or associate (such as an employee) based on the relationship between the two parties. See RESPONDEAT SUPERIOR. [Cases: Labor and Employment C=:::>3026; Negligence C-:;-,483.] "The vicarious liability of an employer for torts committed by employees should not be confused with the liability an employer has for his own torts. An employer whose employee commits a tort may be liable in his own right for negligence in hiring or supervising the employee. If in my business I hire a truck driver who has a record of drunk driving and on whom one day I detect the smell of bourbon, I (along with my employee) may be held liable for negligence if his driving causes injury. But that is not 'vicarious' liability-I am held liable for my own negligence in hiring that employee or letting him drive after I know he has been drinking." Kenneth S. Abraham, The Forms and Functions of Tort Law 166 (2002).

liability bond. See BOND (2). liability dividend. See scrip dividend under DIVIDEND. liability in solido. See solidary liability under LIABIL­ ITY.

liability insurance. See INSURANCE. liability limit. Insurance. The maximum amount of coverage that an insurance company will provide on a single claim under an insurance policy. - Also termed limit of liability; policy limits. [Cases: Insurance 21OS.] liability without fault. See strict liability under LIABIL­ ITY.

liable (h-..-b..l also h-b..l), adj. (lSc) 1. Responsible or answerable in law; legally obligated. 2. (Of a person) subject to or likely to incur (a fine, penalty, etc.). Also termed legally liable. See LIABILITY. liar's loan. See LOAN.

999

libel/us conventionis

libel (h-bJl), n. (14c) 1. A defamatory statement expressed in a fixed medium, esp. writing but also a picture, sign, or electronic broadcast.• Libel is classified as both a crime and a tort but is no longer prosecuted as a crime. - Also termed defamatory libel. 2. The act of making such a statement; publication of defamatory matter by written or printed words, by its embodiment in physical form or by any other form of communica­ tion that has the potentially harmful qualities charac­ teristic of written or printed words. See DEFAMATION. Cf. SLANDER. [Cases: Libel and Slander ~ 1, 14,25.] "Ubel is written or visual defamation; slander is oral or aural defamation." Robert D. Sack & Sandra S. Baron, Ubel, Slander, and Related Problems § 2.3, at 67 (2d ed. 1994). "The distinction itself between libel and slander is not free from difficulty and uncertainty. As it took form in the seventeenth century, it was one between written and oral words. But later on libel was extended to include pictures, signs, statues, motion pictures, and even conduct carrying a defamatory imputation, such as hanging the plaintiff in effigy, erecting a gallows before his door, dishonoring his valid check drawn upon the defendant's bank, or even ... following him over a considerable period in a conspicu­ ous manner. From this it has been concluded that libel is that which is communicated by the sense of Sight, or perhaps also by touch or smell, while slander is that which is conveyed by the sense of hearing." W. Page Keeton et aI., The Law of Torts § 112, at 786 (5th ed. 1984).

criminal libel. At common law, a malicious libel that is designed to expose a person to hatred, contempt, or ridicule and that may subject the author to criminal sanctions.• Because of constitutional protections of free speech, libel is no longer criminally prosecuted. [Cases: Libel and Slander ~ 141.J false-implication libel. Libel that creates a false impli­ cation or impression even though each statement in the article, taken separately, is true. See FALSE LIGHT; INVASION OF PRIVACY.

group libel. (1940) Libel that defames a class ofpersons, esp. because of their race, sex, national origin, reli­ gious belief, or the like.• Civil liability for group libel is rare because the plaintiff must prove that the statement applied particularly to him or her. Cf. hate speech under SPEECH. [Cases: Libel and Slander 21.J libel per quod (pJr kwod). (1927) 1. Libel that is action­ able only on allegation and proof of special damages. • Most jurisdictions do not recognize libel per quod, holding instead that general damages from libel are presumed. 2. Libel in which the defamatory meaning is not apparent from the statement on its face but rather must be proved from extrinsic circumstances. See INNUENDO (2). [Cases: Libel and Slander ~ 1, 6-13,32,33.] libel per se (pJf say). (1843) 1. Libel that is actionable in itself, requiring no proof of special damages .• Most jurisdictions do not distinguish between libel per se and libel per quod, holding instead that general damages from libel are presumed. 2. Libel that is defamatory on its face, such as the statement "Frank is a thief. [Cases: Libel and Slander

obscene libel. Hist. 1. 1be common-law crime of pub­ lishing, with the intent to corrupt, material (esp_ sexual words or pictures) that tends to deprave or corrupt those whose minds are open to immoral influ­ ences. 2. A writing, book, picture, or print that is so obscene that it shocks the public sense of decency. seditious libel. Libel made with the intent of inciting sedition.• Like other forms of criminal libel, sedi­ tious libel is no longer prosecuted. See SEDITION. [Cases: Libel and Slander C-:;; 141, 145.1 trade libel. Trade defamation that is written or recorded. See trade defamation under DEFAMATION; DISPARAGEMENT (3). Cf. trade slander under SLANDER. [Cases: Libel and Slander ~ 130.1 3. The complaint or initial pleading in an admiralty or ecclesiastical case. [Cases: Admiralty ~60.1 - Also termed (in sense 3) libel of information. libel, vb. (16c) 1. To defame (someone) in a permanent medium, esp. in writing. [Cases: Libel and Slander (;;:> 1, 25.] 2. Hist. Maritime law. To sue in admiralty or ecclesiastical court. • This use of the term was elimi­ nated with the merging of the Admiralty Rules into the Federal Rules of Civil Procedure in 1986. libelant (lI-bJI-42.] libeler. One who publishes a written defamatory state­ ment. - Also spelled libeller. Also termed libelant. [Cases: Libel and Slander libellary procedure (h-bJI-er-ee). Roman law. The pre­ liminary proceedings in a lawsuit, initiated by a plain­ tiffs written claims (in a libellus) to the magistrate. libellos agere (lJ-bel-Js aj-J-ree), vb. [LatinJ Roman law. To assist the emperor in responding to petitions. ­ Also termed libellum agere. libellous, adj. See LIBELOUS. libellus (ld-bel-as), n. [LatinJ 1. Roman law. A small book; a written statement to a court; a petition. 2. Hist. An instrument conveying all or part of land. 3. Anyone of a number oflegal petitions or documents, such as a bill of complaint. libellus accusatorius (l2214.] liberty of the press. See FREEDOM OF THE PRESS. liberum maritagium (lib-ar-am mar-a-tay-jee-am). See FRANKMARRIAGE.

liberum servitium (lib-ar-am sar-vish-ee-am), n. [Law Latin] See SERVITIUM LIBERUM. liberum socagium (lib-ar-am sok-ay-jee-;.!m), n. [Law Latin] See free socage under SOCAGE. liberum tenementum (lib-ar-;.!m ten-a-men-t;.!m), n. [Law Latin] Hist. 1. A plea offreehold; a defensive com­ mon-law pleading in an action for trespass to lands. - The defendant pleaded either ownership of the land in question or authorization from the freehold owner. [Cases: Trespass 27.] 2. FREEHOLD. liberum veto. See VETO. LIBOR. abbr. See LONDON INTERBANK OFFERED RATE. libra (II-br;.!), n. [Latin] Hist. An English pound; a sum of money equal to a pound sterling. PI. librae.

libra arsa (II-br;.! ahr-s;.!), n. [Law Latin] Hist. A pound melted to test its purity. libra numerata (h-br;.! n[y]oo-m;.!-ray-tJ), n. [Law Latin] Hist. A pound of money that has been counted. libra pensa (II-bra pen-sa), n. [Law Latin] Hist. A pound of money by weight. librarian. Parliamentary law. An officer charged with custody of an organization's books, periodicals, and other published matter, and sometimes of the organi­ zation's own archives and files as well. Library of Congress. A library on the U.S. Capitol grounds responsible for conducting research for members of Congress and congressional committees. _ The Library maintains collections of materials that in many areas are the world's most extensive. Headed by a Librarian appointed by the President with the advice and consent of the Senate, it was established in 1860. 2 USCA §§ 131 et seq. libripens (lib-ra-penz), n. [Latin] Roman law. A person who holds a bronze balance during actual or ritual sales, such as the ceremonies of emancipating a son from his father or conveying important property; a scale-holder. - The purchaser strikes the balance with a piece ofbronze to symbolize completion of the sale. Ihe seller then receives the bronze as a sign of the purchase money. See MANCIPATION. liceity. (ll-say-tee or li-) Ecclesiastical law. The legality of an act, esp. ofa sacrament. - Liceity is distinguished from validity in ecclesiastical law. Although an act or some part of it may be illegal, its pertormance or effects may be valid. For example, Roman Catholic law requires that the Eucharist be celebrated with unleavened wheat bread. Ifleavened bread is used, the bread would be an illegal substance, but the sacrament's validity would not be affected. license, n. (15c) 1. A permission, usu. revocable, to commit some act that would otherwise be unlawful; esp., an agreement (not amounting to a lease or profit a prendre) that it is lawful for the licensee to enter the licensor's land to do some act that would otherwise be illegal, such as hunting game. See SERVITUDE (1). [Cases: Licenses "[Allicense is an authority to do a particular act, or series of acts, upon another's land, without possessing any estate therein. It is founded in personal confidence, and is not assignable, nor within the statute of frauds." 2 James Kent, Commentaries on American Law *452-53 (George Comstock ed., 11th ed. 1866).

2. The certificate or document evidencing such permis­ sion. -license, vb. artistic license. An open-source license that prohibits the sale of modified software unless it is included in a package with other software. bare license. (I7c) A license in which no property interest passes to the licensee, who is merely not a trespasser. - It is revocable at will. Also termed naked license; mere license. [Cases: Copyrights and Intellectual Property (:=48.]

blanket license. Copyright. A license granted by a per­ forming-rights society, such as ASCAP or BMI, to use all works in the society's portfolio in exchange for a fixed percentage of the user's revenues. box-top license. See shrink-wrap license. BSD license. A form of open-source license that allows users to incorporate the source code into proprietary products as long as the names of the original creator or contributors are not used to endorse or promote the products without permission .• It was originally created for the Berkeley Software Distribution oper­ ating system developed at the University of Califor­ nia. Also termed BSD-style license. click-wrap license. See POINT-AND-CLICK AGREE­ MENT.

compulsory license. 1. Copyright. A statutorily created license that allows certain parties to use copyrighted material without the explicit permission of the copy­ right owner in exchange for a specified royalty. - Also termed equitable remuneration. [Cases: Copyrights and Intellectual Property (~48.l..] 2. Patents. A statutorily created license that allows certain people to pay a royalty and use an invention without the pat­ entee's permission.• \Vhile some nations currently recognize compulsory licenses, the United States never has. cross-license. Patents. An agreement between two or more patentees to exchange licenses tor their mutual benefit and use of the licensed products. [Cases: Patents 211(1).] general-public license. See open-source license. implied license. A royalty-free license arising from a property owner's conduct regarding another person's use of the property even though the owner has not expressly consented to the property's use .• In a patent context, tor example, the circumstances sur­ rounding the conduct give rise to an affirmative grant ofconsent or permission to infringe a patent's claims. For example, the conduct of a patentee who encour­ ages the manufacture of infringing products may be construed as an implied license to use the patent. An implied license may also arise when a patentee authorizes the sale or express grant of a license to a buyer, who then resells the license to a third party; the third party is the patentee's implied licensee. [Cases: Patents 43, 58(2).] "A licence may be coupled with some interest in the land

or chattels thereon. Thus the right to enter another man's land to hunt and take away the deer killed, or to cut down a tree and remove it, involves the grant of an interest in the deer or tree and also a licence annexed to it to come on the land. The interest must be a recognised interest in the property, and it must have been validly created. Thus at law a right to take game or minerals, being a profit prendre, must have been created by deed or prescription, whereas no formalities are required for the grant of a right to take away chattels, such as felled or cut hay. Equity will give effect to a specifically enforceable agreement to grant an interest, so that a licence coupled with a profit prendre granted merely in writing but for value may be protected by injunction." Robert E. Megarry & M.P. Thompson, A Manual of the Law of Real Property 428 (6th ed. 1993).

a

a

limited license. A license that is narrow in scope or narrower than another license granted for the same purpose, or a license subject to conditions or limita­ tions. mechanical license. A grant of the right to produce and release a copyrighted work in exchange for a royalty based on the number of units manufactured and sold. [Cases: Copyrights and Intellectual Property (;:::>48.] mere license. See bare license.

license bond

Mozilla public license. An open-source license that allows software users to modify and publicly dis­ tribute the software, but requires users to release the changed software under the same copyright as the original source code, and to release all claims to patent rights .• The Mozilla public license was devel­ oped for the Netscape and Netscape Communicator browsers but is not limited to use with them. - Abbr. MPL. naked license. 1. A license allowing a licensee to use a trademark on any goods and services the licensee chooses. [Cases: Trademarks C:=> 1208.J 2. See bare license. nonexclusive license. A license of intellectual-prop­ erty rights that gives the licensee a right to use, make, or sell the licensed item on a shared basis with the licensor and possibly other licensees. nonmetered license. Patents. An agreement to allow a patent's use in exchange for a flat percentage of sales, regardless ofhow much the patent is actually used .• The Supreme Court rejected a nonmetered license as patent misuse, saying the buyer has a right to insist on paying only for actual use. Zenith Radio Co. v. Hazeltine Research, Inc., 395 U.S. 100, 89 S.Ct. 1562 (1969). See PATENT-MISUSE DOCTRINE. (Cases: Patents (:::=>218(5).] off-sale license. A state-issued permit to sell alcoholic beverages that may be taken away from and consumed off the premises. Also termed off-premises license. Cf. on-sale license. [Cases: Intoxicating Liquors 59.] on-sale license. A state-issued permit to sell alcoholic beverages to be consumed on the premises only. ­ Also termed on-premises license. Cf. off-sale license. [Cases: Intoxicating Liquors C:=>S9.] open-source license. A license that allows open-source software users to copy, distribute, or modify the source code, and publicly distribute derived works based upon the source code. - Open-source licenses usu. do not require royalty or other fees on distri­ bution. The license typically reqUires a user who redistributes original or modified software that was received under an open-source license to provide the original license terms, including all disclaimers, to all future users, and to distribute the source code with any machine-executable software. It is unclear who has the right or power to enforce the terms of an open-source license. Sometimes termed general­ public license. [Cases: Copyrights and Intellectual Property C:=> 107.] proprietary license. A license that restricts a software user's ability to copy, distribute, or modify the software. shrink-wrap license. (1984) A license printed on the outside of a software package to advise the buyer that by opening the package, the buyer becomes legally bound to abide by the terms of the license.• Shrink-wrap licenses usu. seek to (1) prohibit users

1004

from making unauthorized copies of the software, (2) prohibit modifications to the software, (3) limit use of the software to one computer, (4) limit the manufac­ turer's liability, and (5) disclaim warranties. Also written shrinkwrap license. Also termed box-top license; tear-me-open license. See POINT-AND-CLICK AGREEMENT. [Cases: Copyrights and Intellectual Property C=' 107.] site license. Copyright. A software license that allows a company to install a set number of copies on indi­ vidual computers within the company. synchronization license. A license to reproduce and synchronize a copyrighted musical composition with visual images that are not covered by the musical work's copyright. _ Synchronization rights are commonly associated with audiovisual productions, such as music videos or movies. [Cases: Copyrights and Intellectual Property C:;)48, 107.] tear-me-open license. See shrink-wrap license.

use-based license. An open-source software license to which the user assents by acting according to the license's terms, namely by using, modifying, or dis­ tributing the licensed software .• Unlike a point-and­ click agreement, the user does not have to expressly declare acceptance of the license terms before using the software. [Cases: Copyrights and Intellectual Property C:=> 107.] license bond. See BOND (2). license coupled with the grant of an interest. See Ii cense coupled with an interest under LICENSE. licensee. (I864) 1. One to whom a license is granted. 2. One who has permission to enter or use another's premises, but only for one's own purposes and not for the occupier's benefit. _ The occupier has a duty to warn the licensee ofany dangerous conditions known to the occupier but unknown to the licensee. An example of a licensee is a social guest. Cf. INVITEE; TRESPASSER. [Cases: Licenses C:=>43.] bare licensee. (1864) A licensee whose presence on the premises the occupier tolerates but does not necessar­ ily approve, such as one who takes a shortcut across another's land. Also termed naked licensee; mere licensee. [Cases: Licenses (::::;)43.] licensee by invitation. (1894) One who is expressly or impliedly permitted to enter another's premises to transact business with the owner or occupant or to perform an act benefiting the owner or occupant. [Cases: Licenses C-"43.] licensee by permission. (1894) One who has the owner's permission or passive consent to enter the owner's premises for one's own convenience, curiosity, or entertainment. [Cases: Licenses C:=>43.] licensee with an interest. See INVITEE.

mere licensee. See bare licensee.

naked licensee. See bare licensee.

1005

license fee. 1. A monetary charge imposed by a govern­ mental authority for the privilege of pursuing a par­ ticular occupation, business, or activity. - Also termed license tax. [Cases: Licenses 2. A charge of this type accompanied by a requirement that the licensee take some action, or be subjected to regulations or restrictions. [Cases: Licenses 0=> 1.] license in amortization. Hist. A license authorizing the conveyance of property otherwise invalid under the statutes of mortmain. See MORTMAIN. licenser. See LICENSOR. license tax. See LICENSE FEE (1). licenSing. (15c) 1. The sale of a license authorizing another to use something (such as computer software) protected by copyright, patent, or trademark. [Cases: Copyrights and Intellectual Property 0=>48; Patents 0=>206; Trademarks 1202.] 2. A governmental body's process of issuing a license. - Also termed licensure. [Cases: Licenses 0=> I.] licensor. One who grants a license to another. - Also spelled licenser. [Cases: Licenses licensure. See LICENSING (2). licentia (li-sen-shee-d), n. [fro Latin licere "to be lawful") Hist. License; permission. licentia concordandi (li-sen-shee-. liti­ giousness, litigiosity (li-tij-ee-os·. [Cases: Statutes 2. To support or oppose (a measure) by working to influence a legislator's vote . 3. To try to influence (a decision-maker) . -lobbying, n. lobbyist, n. lobbying act. (1948) A federal or state law governing the conduct oflobbyists, usu. by requiring them to register and file activity reports .• An example is the Federal Regulation ofLobbying Act, 12 USCA § 261. [Cases: Statutes C::::24.J lobby vote. See VOTE (4). local act. 1. See LOCAL LAW (1). 2. See LOCAL LAW (2). local action. See ACTION (4). local administrator. See ADMINISTRATOR (1). local agency. See AGENCY (3). local agent.!. See AGENT (2). 2. See special agent under INSURANCE AGENT.

local allegiance. See actual allegiance under

ALLE­

GIANCE.

local and special legislation. See LEGISLATION. local assessment. See ASSESSMENT. local bar association. See BAR ASSOCIATION. local chattel. See CHATTEL. local concern. (1833) An activity conducted by a munic­ ipality in its proprietary capacity. [Cases: Municipal Corporations C=c57.j local counsel. See COUNSEL local court. See COURT. local custom. See CUSTOM. local-exchange carrier. Telecommunications law. An entity that provides telephone service, usu. on a local basis, through a local-exchange network. 47 USCA § 153(26). - Abbr. LEe. See LOCAL-EXCHANGE NETWORK. [Cases: Telecommunications local-exchange network. Telecommunications law. A system for providing telephone service on a local basis.• A local-exchange network usu. consists of such elements as switches, local loops, and transport trunks, and capabilities such as billing databases and operator services. Switches are pieces of equipment that direct calls to the appropriate destination. Local loops are the wires that connect telephones to the switches. Transport trunks are the wires that carry calls from switch to switch. All the elements of a local-exchange network are often referred to as a bundle, and there are federal requirements that a local-exchange carrier who controls a local-exchange network permit com­ petition by selling some access, including unbundled access, to its local-exchange network. 47 USCA § 25I(c). See LOCAL-EXCHANGE CARRIER; UNBUNDLING RULES. [Cases: Telecommunications local government. See GOVERNMENT. local improvement. See IMPROVEMENT. local-improvement assessment. See local assessment under ASSESSMENT. locality, n. (17c) 1. A definite region; vicinity; neighbor­ hood; community. 2. Hist. Scots law. The land held by a widow in usufruct under the terms of her marriage contract. • If a widow has locality lands, she cannot assert her statutory claim to a one-third share of her husband's real property. locality of a lawsuit. (1939) The place where a court may exercise judicial authority. locality-plus test. Maritime law. The requirement that, for a federal court to exercise admiralty tort jurisdic­ tion, not only must the alleged wrong occur on naviga­ ble waters, it must also relate to a traditional maritime activity Executive let Aviation, Inc. v. Cleveland, 409 U.S. 249, 93 S.Ct. 493 (1972). Also termed locality­ plus rule; maritime-connection doctrine. [Cases: Admi­ ralty

1023

locatio

locality rule. 1. The doctrine that, in a professional~ malpractice suit, the standard of care applicable to the professional's conduct is the reasonable care exercised by similar professionals in the same vicinity and profes­ sional community. [Cases: Health C::'620.] "With respect to medical doctors (and sometimes dentists and others), the standard of care has been further limited by the so-called 'locality rule.' A physician historically was required only to possess and apply the knowledge and use the skill and care that is ordinarily used by reasonably well· qual ified physicians in the locality in which he practices, or, usually, in 'similar localities: This frequently made it difficult or impossible for a plaintiff to prove the appli­ cable standard since other doctors in the same locality are notoriously reluctant to testify against their professional colleagues. However, with the advent of improved com­ munication and continuing medical education, the reason for the rule has abated, and today the trend is toward its abolition." Edward j. Kionka, Torts in a Nutshell 270-71 (2d ed. 1992).

2. The doctrine that, in determining the appropriate amount of attorney's fees to be awarded in a suit, the proper basis is the rate charged by similar attorneys for similar work in the vicinity. [Cases: Costs (;:::;:, 194.18; Federal Civil Procedure (;:::;:,2737.4.] locality test. Maritime law. The requirement that, for a federal court to exercise admiralty tort jurisdiction, the alleged wrong must have occurred on naVigable waters.• The test was replaced by the locality-plus test in Executive let Aviation, Inc. v. Cleveland, 409 U.S. 249, 93 S.Ct. 493 (1972). - Also termed locality rule. See LOCALITY- PLUS TEST. [Cases: Admiralty C= 17.] localization doctrine. The doctrine that a foreign cor­ poration, by doing sufficient business in a state, will subject itself to that state's laws. [Cases: Corporations C~661.]

local law. 1. A statute that relates to or operates in a par­ ticular locality rather than the entire state. 2. A statute that applies to particular persons or things rather than an entire class ofpersons or things. - Also termed (in senses 1 & 2) local act; local statute. [Cases: Statutes (;:::;:,76-104.) 3. The law of a particular jurisdiction, as opposed to the law of a foreign state. - Also termed internal law. 4. Conflict oflaws. The body of standards, principles, and rules - excluding conflict-of-Iaws that the state courts apply to controversies rules before them. Restatement (Second) of Conflict of Laws § 4(1) (1971). [Cases: Action C:) 17.] local-law theory. Conflict of laws. The view that, although a court of the forum recognizes and enforces a local right (that is, one created under its own law), in a foreign-element case it does not necessarily apply the rule that would govern an analogous case of a purely domestic character, but instead takes into account the law of the foreign country by fashioning a local right as nearly as possible upon the law of the country in which the decisive facts have occurred .• This theorv is credited to Walter Wheeler Cook, who expounded it in the first chapter ofhis Logical and Legal Bases ofthe Conflict ofLaws (1949). [Cases: Action (;:::;:, 17.] "Since the court of the forum adopts the view that the chosen law would have taken not of the actual case, but

of an equivalent domestic case, it does not necessarily recognize the right that would have been vested in the plaintiff according to that law.... It is scarcely deniable, however, that this local law theory is little more than what a sterile learned writer has stigmatized as a sterile truism because it affords no basis for the systematic development of private international law. To remind an English judge, about to try a case containing a foreign element, that whatever decision he gives he must enforce only the lex fori, is a technical quibble that explains nothing and solves nothing. It provides no guidance whatever upon the limits within which he must have regard to the foreign law." G.c. Cheshire, Private International Law 35 (6th ed. 1961).

local option. An option that allows a municipality or other governmental unit to determine a particular course of action without the specific approval of state officials. Also termed local veto. Cf. HOME RULE. [Cases: Intoxicating Liquors (;:'-;:>24-43; Municipal Corporations (;:::;:,65_1 local receiver. See RECEIVER. local rule. (1819) 1. A rule based on the phYSical condi­ tions of a state and the character, customs, and beliefs ofits people. [Cases: Federal Civil Procedure C::>25.] 2. A rule by which an individual court supplements the procedural rules applying generally to all courts within the jurisdiction.• Local rules deal with a variety of matters, such as requiring extra copies of motions to be filed with the court or prohibiting the reading of newspapers in the courtroom. Fed. R. Civ. P. 83. [Cases: Courts (;:::;:,85; Federal Civil Procedure (;:::;:,25.] local statute. 1. See LOCAL LAW (1). 2. See LOCAL LAW (2).

local union. See UNION. local usage. See USAGE. local veto. See LOCAL OPTION. locare (l,,-kair-ee), vb. [Latin] Roman law. To let or hire out. See LOCATOR. locare aliquid faciendum (la-kair-ee al-i-kwid fay­ shee-en-dam). [Latin] Roman law. To contract to have someone perform work for remuneration. Cf. CONDUC­ ERE ALIQUID FACIENDUM.

locare aliquid utendum (la-kair-ee al-i-kwid yoo-ten­ dam). [Latin] Roman law. To let something on hire for the use ofthe lessee; to accept consideration for the use of an object. Cf. CONDUCERE ALIQUID UTENDUM. locarium (la-kair-ee-am), n. [Law Latin] Hist. Rent. locatarius (loh-b-tair-ee-as), n. [Latin] Hist. A person with whom something is depOSited; a depositee. locatio (la-kay-shee-oh), n. [Latin] Roman & civil law. Any contract by which the use of the thing bailed, or the use of the labor or services, is agreed to be given for a compensation.• This type of contract benefits both parties. - Also termed lease; hiring. Cf. ABLOCATION. PI. locationes {la-kay-shee-oh-neez). locatio conductio (la-kay-shee-oh kan-duk-shee-oh). [Latin] Roman law. A letting for hire; speciE., a contract by which one person agreed to give to another the use, or the use and enjoyment, of a thing or of services or labor in return for remuneration, usu. money.• In

Roman law, it covered a broad range ofcircumstances general area of a boundary. See CALL (5); DIRECTORY CALLS. [Cases: Boundaries ~ 1-23.] in return for a merces or rent. locator (loh-kay-tdr), n. [Latin] 1. Roman law. (usu. ital.) locatio custodiae (lil-kay-shee-oh kils-toh-dee-ee). One who lets out property or services for reward, or [Latin] Roman law. The hiring of care or service, as who contracts to have another person (the conductor) when the bailee is to protect the thing bailed. perform work for reward; a lessor or landlord. See CON­ locatio mercium vehendarum. See locatio operis DucToR (2). mercium vehendarum. locator operarum, n. One who offers one's labor for locatio operarum (lil-kay-shee-oh 0p-il-rair-ilm). hire, esp. as a day laborer. [Latin "the letting of services"] Roman & civil law. locator operas faciendi, n. One who employs contract A contract of employment; specif., contract in which labor. someone, usu. a day laborer, hires out his services for a specified price. - Also termed locatio operis locator rei, n. A lessor or landlord. faciendi. Cf. REDEMPTIO OPERIS. 2. One who is entitled to locate land or set the boundar­ locatio operis faciendi (lil-kay-shee-oh 0p-il-ris fay­ ies of a mining claim. shee-en-dr). [Latin "the letting of a job to be done"] locatum (lil-kay-tilm), n. [Latin] Hist. A hiring. See Roman law. A contract by which someone hires a BAILMENT. contractor (conductor) to undertake work (e.g., to Lochnerize (lok-nilI-Iz), vb. (1976) To examine and strike build a home or teach a slave to read) on behalf of the hirer. Sometimes shortened to locatio operis. See , down economic legislation under the guise of enforc­ ing the Due Process Clause, esp. in the manner of the locatio operaTum. U.S. Supreme Court during the early 20th century.• locatio operis mercium vehendarum (l;:l-kay-shee-oh The term takes its name from the decision in Lochner op-il-ris milr-shee-ilm vee-hiln-dair-ilm).ILatin "the v. New York, 198 U.S. 45, 25 S.Ct. 539 (1905), in which letting of the job of carrying goods"] Roman law. A the Court invalidated New York's maximum-hours law bailment in which goods are delivered to the bailee for bakers. - Lochnerization, n. Also termed for transport elsewhere, esp. by sea. lockbox. (1872) 1. A secure box, such as a post-office box, locatio mercium vehendarum. strongbox, or safe-deposit box. 2. A facility offered by locatio rei (lil-kay-shee-oh ree-I). [Latin "letting of a a financial institution for quickly collecting and con­ thing"] Roman law. The hiring of a thing for use, by solidating checks and other funds from a party's cus­ which the hirer gains the temporary use of the thing tomers. for a fee. lockdown. (1977) The temporary confinement of pris­ "Locatio rei was the letting of a res for hire. Roman law oners in their cells during a state of heightened alert differed in several aspects from the relevant rules of caused by an escape, riot, or other emergency. [Cases: English law. Firstly, there was not in Roman law a funda­ Prisons ~233.] mental distinction between the hiring of personal property and the lease of real property: locatio rei applied both Lockeanism. See LOCKEA~ LABOR THEORY. to land and movables. Secondly, in Roman law the hirer Lockean labor theory. The philosopher John Locke's jus­ did not obtain possession. Thirdly, the locatio was a mere contract and even the tenant of land did not have a right to tification of private property, based on the natural right be restored if he were [wrongfully] ejected, his sole remedy of one's ownership of one's own labor, and the right being an action for breach of contract. Fourthly, the Roman to nature's common property to the extent that one's contract gave more consideration to the tenant or hirer labor can make use ofit.• Locke's theory, from the fifth than does English law." G.W. Paton. Bailment in the Cammon Law 53 (1952). chapter of his Second Treatise on Civil Government, is often used to analyze the natural rights of inventors, location. (l6c) 1. The specific place or position of a person authors, and artists in their own creations. - Also or thing. 2. The act or process oflocating. 3. Real estate. termed labor theory; Lockeanism. Cf. PERSONALITY The designation of the boundaries of a particular piece THEORY; UTILITARIANISM. ofland, either on the record or on the land itself. [Cases: locked in, adj. 1. (Of a person) unable to sell appreciated Boundaries ~7-9.]4. Mining law. The act ofappropri­ securities and realize the gain because ofliability for ating a mining claim. Also termed mining location. capital gains taxes <my accountant advised me not to See MINING CLAIM. [Cases: Mines and Minerals sell the stock because I am locked in>. 2. (Of a price, 9-38.] 5. The claim so appropriated. 6. Civil law. A rate, etc.) staying the same for a given period . a leasing for hire. See LOCATIO. locked-in rate. See lock rate under INTEREST RATE. location-damage clause. See SURFACE-DAMAGE CLAUSE. lockout. (1854) 1. An employer's withholding of work locative calls (Iok-il-tiv). (1807) Property. In land descrip­ and dosing of a business because of a labor dispute. tions, specific descriptions that fix the boundaries ofthe [Cases: Labor and Employment ~ 1392.] land.• Locative calls may be marks oflocation, land­ marks, or other physical objects. If calls in a description defensive lockout. A lockout that is called to prevent conflict, locative calls control over those indicating a imminent and irreparable financial harm to the

1025

company or to protect a legal right. • Defensive lockouts were legal, but the U.S. Supreme Court abol­ ished the distinction between defensive and offensive lockouts in favor of a balancing test. American Ship Bldg. Co. v. NLRB, 380 U.S. 300, 85 S.Ct. 955 (1965). offensive lockout. A lockout called by management to assert economic pressure on workers and thereby gain a bargaining advantage over a union .• Offensive lockouts were illegal before the U.S. Supreme Court abolished the legal distinction between offensive and defensive lockouts in favor of a balancing test. American Ship Bldg. Co. v. NLRB, 380 U.S. 300, 85 S.Ct. 955 (1965). 2. Loosely, an employee's refusal to work because the employer unreasonably refuses to abide by an expired employment contract while a new one is being negoti­ ated. Cf. STRIKE; BOYCOTT; PICKETING. lock rate. See INTEREST RATE. lockup, n. 1. See JAIL. 2. See LOCKUP OPTION. lockup agreement. Securities. A contract between an underwriter and a corporation's insiders that prohibits the insiders from selling any personal stockholdings for a specified time after the corporation makes a public offering of securities. Cf. MARKET-STANDOFF AGREE­ MENT. [Cases: Corporations C=310(1).] lockup option. A defense against a corporate takeover, in which a friendly party is entitled to buy parts of a cor­ poration for a set price when a person or group acquires a certain percentage of the corporation's shares .• An agreement of this kind may be illegal, to the extent it is not undertaken to serve the best interests of the share­ holders. - Often shortened to lockup. [Cases: Corpo­ rations C=312(5).] loco parentis. See IN LOCO PARENTIS. loco rerum immobilium (loh-koh reer-dm im-;J-bil­ ee-dm). [Latin] Scots law. Treated as immovable things. • The phrase appeared in reference to a determina­ tion of whether certain items (such as shares of stock) should be treated as movable or immovable property. loco tutoris (loh-koh t[y]oo-tor-is). [Latin] Scots law. In the place of a tutor. "The Court of Session is in the practice of appointing, on application made for such appOintment, a factor loco tutoris on the estates of pupils not having tutors. Such an appOint­ ment places the factor in the same position towards the pupil, both as regards his person and the administration of his estate, as if he held the office by virtue of relationship and was tutor-at· law, or had received the appointment of tutor from the pupil's father under his testamentary settle­ ment, the only difference being that the office of a tutor appointed by the Court is not gratuitous." John Trayner, Trayner's Latin Maxims 336-37 (4th ed. 1894).

locum tenens (loh-bm tee-nenz or ten-;:lflz), n. [Law Latin "holding the place"] Hist. A deputy; a substitute; a representative. locuples (lok-Yd-pleez), adj. [Latin] Civil law. Having the means to pay any amount that the plaintiff might recover. Also termed locuplete.

locus regit actum

locupletari cum damno alterius (lok-yuu-pld-tair-r bm dam-noh al-teer-ee-as). [Latin] To be enriched through the damage sustained by another. locus (loh-k;ls). [Latin "place"] (l8c) Ihe place or position Abbr. L. See where something is done or exists. SITUS.

locus actus (Ioh-bs ak-tas). [Latin "place of the act"] The place where an act was done; the place of perfor­ mance. locus contractus (loh-kas kan-trak-t;ls). [Latin "place of the contract"] The place where a contract was made. Cf. LEX LOCI CONTRACTUS. [Cases: Contracts 145.]

locus criminis (loh-kas krim-;l-nis), n. [Latin] The place where a crime was committed. locus delicti (loh-k;JS d;l-Iik-tr). [Latin "place of the wrong"] The place where an offense was committed; the place where the last event necessary to make the actor liable occurred. Cf. LEX LOCI DELICTI. [Cases: Torts C= 103.] "When a statute does not indicate where Congress con­ sidered the place of committing the crime to be, the site or locus delicti must be determined from the nature of the crime and the location of the acts or omissions constituting the offense." United States v. Clinton, 574 F.2d 464, 465 (9th (ir. 1978).

locus in quo (loh-k;ls in kwoh). [Latin "place in which"] (ISc) The place where something is alleged to have occurred. locus partitus (loh-k;ls pahr-tI-t;ls), n. [Latin "a place divided"] Hist. The act of dividing two towns or counties to determine which ofthem contains the land or place in question. locus poenitentiae (loh-kas pen-a-ten-shee-ee). [Latin "place of repentance") 1. A point at which it is not too late for one to change one's legal position; the possi­ bility of withdrawing from a contemplated course of action, esp. a wrong, before being committed to it . 'The requirement of an overt act before conspirators can be prosecuted and punished exists .. to provide a locus an opportunity for the conspirators to poenitentiae reconSider, terminate the agreement, and thereby avoid punishment." People v. Zamora, 557 P.2d 75. 82 n.8 (Cal. 1976).

2. The opportunity to withdraw from a negotiation before finally concluding the contract. [Cases: Con­ tracts C= 138(3).] locus publicus (loh-k;ls p776; Set-off and Counterclaim (;=>60.]

locus solutionis (loh-k2176. ] 2_ Marine underwriting. According to the traditional American rule, such serious damage to the insured property that the cost of repairs would exceed half the value of the thing repaired. See total loss. [Cases: Insurance (;::.)2236.]

direct loss. (ISc) A loss that results immediately and proximately from an event. Cf. consequential loss. disaster loss. A casualty loss sustained in a geographic area that the President deSignates as a disaster area. • It may be treated as having occurred during the previous tax year so that a victim may receive imme­ diate tax benefits. economic loss. See ECONOMIC LOSS.

extraordinary loss. (17c) A loss that is both unusual and infrequent, such as a loss resulting from a natural disaster.

general average loss. Marine underwriting. A loss at sea usu. incurred when cargo is thrown overboard to save the ship; a loss due to the voluntary and inten­ tional sacrifice of part of a venture (usu. cargo) to save the rest of the venture from imminent periL. Such a loss is borne equally by all the interests concerned in the venture. See AVERAGE (3). [Cases: Insurance (;=::>2240.]

hobby loss. A nondeductible loss arising from a personal hobby, as contrasted with an activity engaged in for profit.• The law generally presumes that an activity is engaged in for profit if profits are earned during at least three ofthe last five IRC (26 USCA) § 183. [Cases: Internal Revenue 3397.] indirect loss. See consequential loss. long-term capital loss. A loss on a capital asset held for an extended period, usu. at least 12 months. [Cases: Internal Revenue (;=::>3260.] net loss. The excess of all expenses and losses over all revenues and gains.

net operating loss. (1921) The excess of operating expenses over revenues, the amount of which can be deducted from gross income if other deductions do not exceed gross income. Abbr. NOL. [Cases: Internal Revenue (;::> 3399.]

ordinary loss. (1850) Tax. A loss incurred from the sale or exchange of an item that is used in a trade or business.• The loss is deductible from ordinary income, and thus is more beneficial to the taxpayer than a capital loss. Also termed business loss. out-aI-pocket loss. (1921) The difference between the value of what the buyer paid and the market value of what was received in return.• In breach-of-contract cases, out-of-pocket loss is used to measure restitution damages. [Cases: Damages Fraud (;=::>59(3).]

paper loss. (1924) A loss that is realized only by selling something (such as a security) that has decreased in market value. Also termed unrealized loss. partial loss. A loss of part of the insured property; damage not to a total loss. Cf. total loss. [Cases: Insurance

particular average loss. Marine underwriting. A loss suffered by and borne alone by particular interests in a maritime venture.• Such a loss is usu. a partial loss. [Cases: Insurance passive loss. A loss, with limited tax deductibility, from an activity in which the taxpayer does not materially participate, from a rental activity, or from a tax-shel­ ter activity. [Cases: Internal Revenue (;:::>3418.] pecuniary loss. A loss of money or ofsomething having monetary value. [Cases: Damages product-liability loss. The total ofa taxpayer's product­ liability expenses up to the amount of the taxpayer's

1031

net operating loss. IRC (26 USCA) § 172(j)(1). - Abbr. PLL. See net operating loss. [Cases: Internal Revenue (:='3438.] progressive loss. 1. Loss that spreads or becomes more expensive to repair over time. 2. Late-manifesting harm that is related to an event that caused immedi­ ate harm, worsens over time, and is not catalyzed by any additional causative agent. - A classic example is asbestosis, a disease that manifests long after exposure to asbestos fibers. recognized loss. Tax. The portion ofa loss that is subject to income taxation. IRC (26 C'SCA) § 1001 (c). salvage loss. 1. Generally, a loss that presumptively would have been a total loss if certain services had not been rendered. 2. Marine underwriting. The difference between the salvage value, less the salvage charges, and the original value of the insured property. [Cases: Insurance C=2233.] total loss. (1924) The complete destruction of insured property so that nothing of value remains and the subject matter no longer exists in its original form. ­ Generally, a loss is total if, after the damage occurs, no substantial remnant remains standing that a reason­ ably prudent uninsured owner, desiring to rebuild, would use as a basis to restore the property to its original condition. Also termed actual total loss. Cf. partial loss; constructive total loss. [Cases: Insur­ ance C=:>2175.] unrealized loss. See paper loss. loss carryback. See CARRYBACK. loss carryforward. See CARRYOVER. loss carryover. See CARRYOVER. loss insurance. See INSURANCE. loss leader. (1922) A good or commodity sold at a very low price, usu. below cost, to attract customers to buy other items. - Sometimes shortened to leader. See BAIT AND SWITCH.

loss-of-bargain damages. See benefit-of-the-bargain damages under DAMAGES. loss-of-bargain rule. (1903) The doctrine that damages for a breach of a contract should put the injured party in the position it would have been in ifboth parties had performed their contractual duties. [Cases: Damages C=:> 117, 120(1).] loss-of-chance doctrine. (1987) A rule in some states providing a claim against a doctor who has engaged in medical malpractice that, although it does not result in a particular injury, decreases or eliminates the chance of surviving or recovering from the preexisting condi­ tion for which the doctor was consulted. Also termed lost-chance doctrine; increased-risk-of-harm doctrine. [Cases: Health C=833.] loss ofconsortium (k;m-sor-shee-am). (1878) 1. A loss of the benefits that one spouse is entitled to receive from the other, including companionship, cooperation, aid, affection, and sexual relations. _ Loss of consortium

lost earning capacity

can be recoverable as damages from a tortfeasor in a personal-injury or wrongful-death action. Originally, only the husband could sue for loss ofconsortium. But in 1950, nearly a century after the enactment of the married women's property acts, a wife's action for neg­ ligent impairment of consortium was first recognized. Hitaffer v. Argonne Co., 183 F.2d 811 (D.C. Cir. 1950). Today 48 states and the District of Columbia recognize both a husband's and a wife's right to sue for loss ofcon­ sortium (Utah and Virginia do not). [Cases: Husband and Wife C~209(3, 4).] 2. A similar loss of benefits that one is entitled to receive from a parent or child. See CONSORTIUM. loss-of-use exclusion. See failure-to-perform exclusion under EXCLUSION (3). loss-payable clause. Insurance. An insurance-policy provision that authorizes the payment of proceeds to someone other than the named insured, esp. to someone who has a security interest in the insured property. _ Typically, a loss-payable clause either designates the person as a beneficiary of the proceeds or assigns to the person a claim against the insurer, but the clause usu. does not treat the person as an additional insured. See MORTGAGE CLAUSE. [Cases: Insurance C=:>3450.] loss payee. Insurance. A person or entity named in an insurance policy (under a loss-payable clause) to be paid ifthe insured property suffers a loss. [Cases: Insur­ ance C:=-3450.] loss ratio. 1. Insurance. The ratio between premiums paid and losses incurred during a given period. [Cases: Insurance C= 1540.J 2. A bank's loan losses compared to its loan assets; a business's receivable losses compared to its receivables. loss reserve. See RESERVE. lost, adj. (l6c) 1. (Of property) beyond the possession and custody of its owner and not locatable by diligent search . 2. (Of a person) missing . 3. Parliamentary law. (Of a motion) rejected; not adopted . lost boundary. See BOUNDARY. lost-chance doctrine. (1985) 1. LOSS-OF-CHANCE DOCTRINE. 2. A rule permitting a claim, in limited circumstances, against someone who fails to come to the aid of a person who is in imminent danger ofbeing injured or killed. Cf. GOOD SAMARITAN DOCTRINE. lost corner. See CORNER. lost earning capacity. (1908) A person's diminished earning power resulting from an injury. - This impair­ ment is recoverable as an element of damages in a tort action. Cf. lost earnings under EARNINGS. (Cases: Damages C'::::" 38.] "To some extent the phrases 'loss of earnings' and 'loss of earning capacity' are used interchangeably. But the pre' ferred view is that they are different concepts. The former covers real loss which can be proved at the trial; the latter covers loss of the chances of getting equivalent work in the future." R.F.V. Heuston, Salmond on the Law of Torts 572 (17th ed. 1977).

lost earnings

lost earnings. See EARNINGS. lost-expectation damages. See expectation damages under DAMAGES. lost or not lost. Marine insurance. A policy provision fixing the effective date of the policy to a time preced­ ing the policy date, even if the insured ship has already been lost when the policy is executed, as long as neither party then knows, or has means of knowing, that the ship has been lost. lost profits. 1. Contracts. A measure of damages that allows a seller to collect the profits that would have been made on the sale if the buyer had not breached. VCC § 2-708(2). [Cases: Damages Sales (::::::>384(1).] 2. Patents. A measure of damages set by estimating the net amount lost by a plaintiff-inventor because of the infringing defendant's actions. - The plaintiff can ask for a lost-profits recovery by showing that the patent is in demand, that the plaintiff is able to meet the demand, and that there are no acceptable non infringing alter­ Also termed (redundantly) natives on the market. lost-profits damages. [Cases: Patents (::::::>318.] lost-profits damages. See LOST PROFITS (1). lost property. See PROPERTY. lost-sales-of-unpatented-items theory. Patents. A theory of lost-profits remedy whereby compensation is sought for sales of unpatented items that the plaintiff would have sold along with patented items but for the defendant's infringement. lost-volume seller. (1974) A seller of goods who, after a buyer has breached a sales contract, resells the goods to a different buyer who would have bought identical goods from the seller's inventory even if the original buyer had not breached. - Such a seller is entitled to lost profits, rather than contract price less market price, as damages from the original buyer's breach. VCC § 2-708(2). [Cases: Sales (::::::>384(7).] lost will. See WILL. lot. (bef. 12c) 1. A tract of land, esp. one having specific boundaries or being used for a given purpose. minimum lot. A lot that has the least amount of square footage allowed a local zoning law. [Cases: Zoning and Planning nonconforming lot. A previously lawful lot that now violates an amended or newly adopted zoning ordi­ nance. [Cases: Zoning and Planning C=)321.] 2. An article that is the subject of a separate sale, lease, or delivery, whether or not it is sufficient to perform the contract. VCC §§ 2-105(5); 2A-103(l)(s). 3. A speCified number of shares or a quantity ofa commodity designated for trading. odd lot. A number of shares of stock or the value of a bond that is less than a round lot. round lot. The established unit of trading for stocks and bonds. _ A round lot of stock is usu. 100 shares, and a round lot of bonds is usu. $1,000 or $5,000 par value. Also termed even lot; board lot.

1032

lot and scot. Hist. A collection of duties paid by voters before voting in certain cities and boroughs. lot line. (1829) A land boundary that separates one tract from another . lottery. (l6c) A method of raising revenues, esp. state­ government revenues, by selling tickets and giving prizes (usu. cash prizes) to those who hold tickets with winning numbers that are drawn at random. - Also termed lotto. [Cases: Lotteries Dutch lottery. A lottery in which tickets are drawn from classes, and the number and value of prizes are fixed and increasing with each class. _ This type of lottery originated in Holland in the 16th century. Also termed class lottery. Genoese lottery (jen-oh-eez or -ees). A lottery in which, out of90 consecutive numbers, five are drawn by lot, each player wagering that one or more ofthe numbers they have chosen will be drawn .• This type oflottery originated in Genoa in about 1530. Also termed number lottery; numerical lottery. love day. See DAY. Lovely claim. Hist. Property. An entitlement to settle on and take ownership of public land in created by the federal government for Lovely County settlers who were displaced by an 1828 treaty that gave the settlers' land to the Cherokee nation .• The term gets its name from Lovely County in the Arkansas ter­ ritory, which straddled what is now the Oklahoma­ Arkansas border. The treaty divided the county, granted the portion west of the Mississippi River to the Cherokee nation, and required the settlers in that territory to relocate. On May 24, 1828, Congress passed an act granting relief to Lovely County settlers who were forced to leave the Cherokee land and granted them land on the eastern side ofthe river. Lovely claims are found in chains oftitle in Arkansas. [Cases: Public Lands (::::::>45.] lowbote (loh-boht). Hist. Compensation paid for the death of one killed in a disturbance. low diligence. See slight diligence under DILIGENCE. lower chamber. See CHAMBER. lower court. 1. See court below under COURT. 2. See inferior court under COURT. lower estate. See servient estate under ESTATE (4). lower low tide. See TIDE. lower-of-cost-or-market method. (1958) A means of pricing or costing inventory by which inventory value is set at either acquisition cost or market cost, whichever is lower. [Cases: Internal Revenue lower scale. See SCALE. lowest responsible bidder. (1844) A bidder who has the lowest price conforming to the contract specifications and who is financially able and competent to complete the work, as shown by the bidder's prior performance. [Cases: Public Contracts

1033

low-grade security. See SECURITY. low justice. See JUSTICE (3). low-total voting. See VOTING. low-water mark. See WATERMARK. loyalty, n. (ISc) Faithfulness or allegiance to a person, cause, duty, or government. -loyal, adj. loyalty oath. See oath ofallegiance under OATH. L.P. See limited partnership under PART~ERSHIP. L.R. abbr. Law Reports. See REPORT (3). LRIC. abbr. LONG-RUN INCREMENTAL COST. L.S. abbr. LOCUS SIGILLI. LSAT. abbr. LAW SCHOOL ADMISSIONS TEST. Ltd. abbr. Limited - used in company names to indicate limited liability. LTV ratio. See LOAN-TO-VALUE RATIO. luce darius (lao-see klair-ee-950.] application for relief, commanding the defendant either to perform the act demanded or to appear mandator (man-day-tdr or man-day-t;:lr). (17c) 1. A before the court at a specified time to show cause for person who delegates the performance of a mandate to not performing it. [Cases: Mandamus (;:::::> 158.] another. 2. Civil law. The person who employs another (called a mandatary or mandatarius) in a gratuitous peremptory mandamus. An absolute and unqualified agency. See MANDATE (5). - Also termed mandant. command to the defendant to do the act in question. 3. BAILOR (1) . • It is issued when the defendant defaults on, or fails to show sufficient cause in answer to, an alternative mandatory, adj. (I5c) Of, relating to, or constituting a mandamus. [Cases: Mandamus C:;) 179.] command; required; preemptory. HA provision in a statute is said to be mandatory when mandans (man-danz), n. [Latin] Roman law. The prin­ disobedience to it, or want of exact compliance with it, cipal for whom a mandated person undertakes to will make the act done under the statute absolutely void." perform a gratuitous service. See MANDATOR (2). Henry Campbell Black, Handbook on the Construction and Interpretation of the Laws 334 (1896). mandant (man-d;mt), n. [French) French & Scots law. The principal in a contract ofmandate, such as a bailor mandatory commitment. See COMMITMENT. in a bailment. See MANDATOR. mandatory injunction. See INJUNCTION. mandatary (man-d;:l-ter-ee), n. (i5c) 1. A person to mandatory instruction. See JURY INSTRUCTION. whom a mandate is given. See MANDATE (5). 2. An mandatory joinder. See compulsory joinder under agent, esp. one who acts gratuitously but is entitled to be indemnified for expenses incurred in carrying out the JOINDER. mandate. Also termed (in Roman law) mandatarius. mandatory penalty. See mandatory sentence under 3. Civil law. The person who is employed to a mandator SENTENCE. in a gratuitous agency. - Also termed mandatee; man­ mandatory power. See POWER (5). datarius. See MANDATE (5). mandatary, adj. mandatory presumption. See conclusive presumption mandate, n. (16c) 1. An order from an appellate court under PRESUMPTION. directing a lower court to take a specified action. ­ mandatory punishment. See mandatory sentence under Also termed (in BrE) order. See MANDAMUS. [Cases: SENTENCE. Appeal and Error (;:::::> 1186.1; Federal Courts 949.1.] 2. A judicial command directed to an officer mandatory rule. See KGLE (1). of the court to enforce a court order. 3. In politics, the i mandatory sentence. See SENTENCE. electorate's overwhelming show of approval for a given ;

political candidate or platform. 4. Roman & civil law. ' mandatory sentencing. See SENTENCING.

A written command given by a principal to an agent; mandatory statute. See STATUTE. specif., a commission or contract by which one person I mandatory subject of bargaining. Labor law. A topic (the mandator) requests someone (the mandatary) to that is required by the National Labor Relations Act perform some service gratuitously, the commission to be discussed in good faith by the parties during becoming effective when the mandatary agrees. La. labor negotiations; an essential employment matter, Civ. Code art. 2989.• In this type of contract, no lia~ including wages, hours, and other terms and condi­ bility is created until the service requested has begun. tions of employment, about which management and the The mandatary is bound to use reasonable care in per­ union are required to negotiate in good faith, and that formance, while the mandator is bound to indemnify can lawfully form the basis of a collective-bargaining against loss incurred in performing the service. ­ impasse. 29 USCA § 158(d). - Often shortened to man­ Also termed mandatum. 5. Louisiana law. A contract datory subject. Cf. PERMISSIVE SUBJECT OF BARGAIN­ by which one person, the principal, confers authority ING. [Cases: Labor and Employment 1125.J on another person, the mandatary, to transact one or mandatory trust. See TRUST. more affairs for the principal. La. Civ. Code arts. 2989 et seq.• The contract of mandate may be either onerous mandatory waiver. The mandatory transfer, without or gratuitous. It is gratuitous ifthe parties do not state judicial discretion, of a case from juvenile court to otherwise. 6. Hist. Int'llaw. An authority given by the criminal court once the prosecutor has charged a League of Nations to certain governments to take over juvenile with one of certain statutorily enumerated the administration and development of deSignated ter~ serious crimes. See TRANSFER STATUTE. C£ STATUTORY ritories. Cf. TRUSTEESHIP (2). mandate, vb. EXCLUSIOK. [Cases: Infants (;:::::>68.7.] mandatee. See MANDATARY. mandatum (man-day-t~m). Roman & civil law. A mandate rule. (1958) The doctrine that, after an appel­ bailment in which the bailee will, without recompense, late court has remanded a case to a lower court, the perform some service relating to the goods; MANDATE

(4).• This type of bailment is for the sole benefit of the bailor. mandavi ballivo (man-day-vI ba-b-voh). [Law Latin "I have commanded the bailiff"] Hist. A sheriff's return stating that the sheriff ordered a bailiff to execute a writ. man-endangering state of mind. See PERSON-ENDAN­ GERING STATE OF MIND. manerium (ma-neer-ee-am), n. [Law Latin, fro Latin manere "to remain"] Hist. A manor. 'The term manerium seems to have come in with the Conqueror, though other derivatives from the Latin verb manere, in particular mansa, mansio, mansiuncula had been freely employed by the scribes of the land-books. But these had as a rule been used as representatives ofthe English hide, and just for this reason they were incapable of expressing the notion that the Normans desired to express by the word manerium. In its origin that word is but one more name for a house. Throughout the Exeter Domesday the word mansio is used instead of the manerium of the Exchequer record, and even in the Exchequer record we may find these two terms used interchangeably ...." Frederic W, Maitland, Domesday Book and Beyond 108-09 (1921),

mangonare (mang-ga-nair-ee), vb. [fro Latin mango "a dealer"] To buy in a market; to deal. manhood. (Be) 1. A male person's majority. 2. Hist. A ceremony of a vassal paying homage to the vassal's lord. - Also termed homagium. "Besides an oath of fealty, or profession of faith to the lord, which was the parent of our oath of allegiance, the vassal or tenant upon investiture did usually homage to his lord; openly and humbly kneeling, being ungirt, uncovered, and holding up his hands both together between those of the lord, who sate before him; and there professing that 'he did become his man, from that day forth, of life and limb and earthly honour:' and then he received a kiss from his lord, Which ceremony was denominated homagium, or manhood, by the feudists." 2 William Blackstone, Com­ mentaries on the Laws of England 53 (1766).

mania a potu. See DELIRIUM TREMENS. mania transitoria. Hist. Insanity ofbrief duration, expe­ rienced while committing a criminal act. • In a mem­ orandum opinion, the Supreme Court used the term to mean emotional insanity. See Mutual Life Ins. CO, V. Terry, 82 U.S. 580, 583-84 (I872). But other courts have applied the literal meaning (temporary insanity). See, e.g., Rush v. Megee, 36 Ind. 69 (I871). Cf. emotional insanity and temporary insanity under INSANITY. manifest, n. (16c) A document listing the cargo or pas­ sengers carried on a ship, airplane, or other vehicle; esp., a shipping or warehousing document containing a list ofthe contents, value, origin, carrier, and destina­ tion of the goods. Cf. CONTENT. manifestation of intention. (1826) Wills & estates. The external expression ofthe testator's intention, as distin­ guished from an undisclosed intention. - Also termed manifestation ofintent. manifestation theory. Insurance. The doctrine that coverage for an injury or disease falls to the policy in effect when the symptoms of the covered injury or disease first appear. Cf. EXPOSURE THEORY; ACTUAL­

INJURY TRIGGER; TRIPLE TRIGGER. [Cases: Insurance (;:::>2265.] "Some injuries do not manifest themselves until a period of time has elapsed between the occurrence of the event that produces the harm and the time when it becomes apparent. Particularly when these claims result from what often were not recognized as dangerous products or chemicals when the exposure occurred, such as asbestos or dioxin, the consequences are referred to as 'delayed manifestation' injuries .. , . [Under the] '[m]anifestation' theory ... [some] courts have concluded that coverage is provided by the insurance policy in place at the time the injury becomes apparent, that is, when the injury is manifested." Robert E. Keeton & Alan I. Widiss, Insurance Law: A Guide to Fundamental Principles, Legal Doctrines, and Commercial Practices § 5.10(d)(3). at 598 (1988).

manifest constitutional error. See ERROR (2). manifest-disregard doctrine. (1983) The principle that an arbitration award will be vacated if the arbitrator knows the applicable law and deliberately chooses to disregard it, but will not be vacated for a mere error or misunderstanding of the law. [Cases: Alternative Dispute Resolution (;:::> 329.] manifest error. See ERROR (2). manifest-error-or-dearly-wrong rule. (1981) In some jurisdictions, the doctrine that an appellate court cannot set aside a trial court's finding of fact unless a review of the entire record reveals that the finding has no reasonable basis. rCases: Appeal and Error C=: 999(1),1008.1(5, manifest injustice. A direct, obvious, and observable error in a trial court, such as a defendant's guilty plea that is involuntary or is based on a plea agreement that the prosecution has rescinded. [Cases: Criminal Law (;:::>273.1(2),274(3.0.] manifest intent. See INTENT (1). manifest law. See LEX MANIFESTA. manifest necessity. See NECESSITY. manifesto. (17c) A written statement publicly declar­ ing the issuer's principles, policies, or intentions; esp. a formal document explaining why a state or nation declared war or took some other significant interna­ tional action. manifest thief. See FUR MANIFESTUS. manifest weight ofthe evidence. A deferential standard of review under which a verdict will be reversed or dis­ regarded only if another outcome is obviously correct and the verdict is dearly unsupported by the evidence. Cf. WEIGHT OF THE EVIDENCE. [Cases: Criminal Law Evidence (;:::>584.J manipulation. Securities. (1888) The illegal practice of raising or lowering a security's price by creating the appearance of active trading .• Manipulation is pro­ hibited by section lO(b) of the Securities Exchange Act of 1934.15 USCA § 78j(b). - Also termed market manipulation; stock manipulation. [Cases: Securities Regulation (;:::>60.25.] mankind. See MAN (2).

1049

manslaughter

Mann Act. A federal law, enacted originally in 1910, making it illegal to transport an individual in interstate or foreign commerce for prostitution or other criminal sexual activity. - It is named its sponsor, Rep. James Robert Mann. 18 USCA § 2421-2424. Also termed White Slave Traffic Act. [Cases: Prostitution C~;> 15.] manner and form. See MODO

ET FORMA.

mannire (m,,-flI-ree), vb. [Law Latin) Hist. To summon (an adverse party) to court; to prosecute (a case).

mannopus (man-oh-pas). [fro Latin manus "hand" + opus "work"] Hist. 1. Manual labor. 2. A day's work. 3. Goods taken from the hands of an apprehended thief; MAINOUR.

manor. (14c) 1. A feudal estate, usu. granted by the king to a lord or other high person and cultivated as a unit. - In more ancient times, the lord's manor included a village community, usu. composed of serfs. "[T]o ask for a definition of a manor is to ask for what can not be given. We may however draw a picture of a typical manor. and, this done, we may discuss the deviations from this type .... [W]e may regard the typical manor (I) as being, qua viII, a unit of public law, of police and fiscal law, (2) as being a unit in the system of agriculture, (3) as being a unit in the management of property, (4) as being a jurisdictional unit. But we ... see that hardly one of these traits can be considered as absolutely essential. The most important is the connection between the manor and the viII ...." 1 Frederick Pollock & Frederic W. Maitland, The Historv of English Law Before the Time of Edward / 596-97 (2d ed. 1898). ''The term [manor] applied, after the Norman conquest, to estates organized under knights, ecclesiastical corpora­ tions, or otherwise. and managed and cultivated as units. By the end of the 11th century, the main element was the feudal lord, and soon he came to be regarded as the owner of the manor, and to have authority over the tenants, and the right to hold a court for them .... In the thirteenth and fourteenth centuries, a manor also implied a right of jurisdiction exercised through a court baron, attended by both freeholders and villein tenants .... In the eighteenth century the manorial court decayed rapidly, cases being generally brought in the King's courts, the only surviving business being copyhold conveyancing." David M. Walker, The Oxford Companion to Law 803 (1980).

reputed manor. A manor in which the lands not granted in tenancy but reserved for the lord's own use (demesne lands) and services become absolutely separated.• The manor is no longer a manor in actu­ ality, only in reputation. Also termed seigniory in

gross. 2. A jurisdictional right over tenants of an estate, usu. exercised through a court baron. 3. Hist. In the United States, a tract ofland occupied by tenants who pay rent to a proprietor. 4. A mansion on an estate. manorial extent. Hist. A survey of a manor by a jury of tenants, giving the numbers and names oftenants, the size of their holdings, the kind of tenure, and the kind and amount of the tenants' services. manorial system. The medieval system ofland owner­ ship in which serfs and some freemen cultivated the soil of a manor in return for a lord's protection. See MANOR (1).

manse (mans), n. [Law Latin] Hist. 1. A portion ofland large enough to maintain one family.; a sufficient amount ofland to be worked by a yoke of oxen for a year. 2. A house without land; MESSUAGE. 3. The resi­ dence of a minister, esp. a Presbyterian minister. 4. A large, imposing residence. - Also termed mansus. manser (man-sar), n. [Law Latin] Hist. A bastard. Mansfield rule. (1968) The doctrine that a juror's testi­ mony or affidavit about juror misconduct may not be used to challenge the verdict.• This Mansfield rule is intended to ensure that jurors are heard through their verdict, not through their postverdict testimony. In practice, the rule lessens the possibility that lOSing parties will seek to penetrate the secrets of the jury room. The rule was first announced in Vaise v. Delaval, 99 Eng. Rep. 944 (K.B. 1785), in an opinion by William Murray, first Earl of Mansfield, the Lord ChiefJustice of the Court of King's Bench. [Cases: Criminal Law C=> 957; Federal Civil Procedure C':::>2371; New Trial 143; Trial G=>344.]

mansio (man-shee-oh), n. [Law Latin] Hist. 1. An inn. 2. A house. mansion-house. l. Hist. The residence of the lord of a manor. 2. DWELLING-HOUSE. mansion-house rule. The doctrine that a tract of land lying in two counties will be assessed, for property-tax purposes, in the county in which the house is located. [Cases: Taxation C=>2216.] manslaughter, n. (15c) The unlawful killing of a human being without malice aforethought. Also termed (in some jurisdictions) cuLpable homicide. Cf. MURDER. [Cases: Homicide C=>654.]- manslaughter, vb. first-degree manslaughter. See voluntary manslaugh­

ter. intentional manslaughter. See voluntary manslaugh­ ter. intoxication manslaughter. An unintentional homicide committed by an intoxicated person while operating a vehicle or some other type of machinery. lCases: Automobiles G=>344.] involuntary manslaughter. (18c) Homicide in which there is no intention to kill or do grievous bodily harm, but that is committed with criminal negligence or during the commission of a crime not included within the felony-murder rule. Also termed neg­

ligent manslaughter; second-degree manslaughter; manslaughter in the second degree. Cf. ACCIDENTAL KILLING.

[Cases: Homicide G=>659.]

"Involuntary manSlaughter is a 'catch-all' concept. It includes all manslaughter not characterized as voluntary." Rollin M. Perkins & Ronald N. Boyce, Criminal Law 104 (3d ed. 1982). "The only differences between the legal use and the everyday use of 'voluntary,' 'not voluntary,' and 'involun­ tary' seem to be (a) a more frequent use of 'involuntary' as a synonym of 'not voluntary' and (b) a technical use of 'involuntary' in the crime of 'involuntary manslaughter,' where it seems to have the meaning of 'unintentional.' Thus, as contrasted with 'voluntary manslaughter,' there

is no suggestion that death, as contrasted with harm, was intended or foreseen. Though it is often confined to cases of assault and battery where death results, for example either from the withholding of food or from excessive chas­ tisement of a child, some jurists say that it can be due to any unlawful and dangerous action causing death." Alan R. White, Grounds of Liability 61-62 (1985).

manslaughter in the first degree. See voluntary man­ slaughter. manslaughter in the second degree. See involuntary manslaughter. misdemeanor manslaughter. (1947) Unintentional homicide that occurs during the commission of a misdemeanor (such as a traffic violation). [Cases: Homicide C::>661.) negligent manslaughter. See involuntary manslaugh­ ter. second-degree manslaughter. See involuntary man­ slaughter. voluntary manslaughter. (lSc) An act of murder reduced to manslaughter because ofextenuating cir­ cumstances such as adequate provocation (arousing the "heat ofpassion") or diminished capacity. - Also termed intentional manslaughter; first-degree man­ slaughter; manslaughter in the first degree; uninten­ tional murder. [Cases: Homicide 0=658.) manstealing. See KIDNAPPING. mansuetae naturae (man-swee-tee na-tyoor-ee), adf [Latin "of a tamable nature") Civil law. (Of animals) tame or tamable. [Cases: Animals 0= 1.5.) mansuetae naturae (man-swee-tee na-tyoor-ee), n. Civil law. Tame, domesticated animals. See domestic animal under ANIMAL. [Cases: Animals C= L5;) mansuetus (man-swee-tas), adj. [Latin) Roman law. Tame; tamed. mansus. See MANSE. manticulate (man-tik-ya-layt), vb. To pick pockets. manticuiation, n. mantle child. See CHILD. mantrap. See TRAP. manual, adj. Used or performed by hand <manual labor>. manual delivery. Delivery of personal property by actual and corporeal change in possession. Manual for Courts-Martial. A manual that implements the Uniform Code ofMilitary Justice .• It was adopted in 1969 by presidential executive order. [Cases: Military Justice (;:::)507.J manual gift. See GIFT. manu aliena (man-yoo ay-Iee-ee-n394.6.] maquiladora (mah-kee-ld-dohr-d), 11. [fro Spanish maquilar "gristmill"] (1976) A Mexican corporation, esp. one that holds a permit to operate under a special customs regime that temporarily allows the corpora­ tion to import duty-free into Mexico various raw mate­ rials, equipment, machinery, replacement parts, and other items needed for the assembly or manufacture of fmished goods for export. - Often shortened to maquila. mara (mair-d), 11. [Law Latin] Hist. A lake; a pool; a body of water that cannot be drained. MARAD. abbr. MARITIME ADMINISTRATION. maraud (md-rawd), vb. (18c) To rove about to pillage or plunder; to loot. - marauder, 11. marcatus (mahr-kay-tds), n. [l.aw Latin] Hist. The yearly rent of a tract ofland. march. Hist. A boundary between countries or territo­ ries, esp. the border between England and Wales or between England and Scotland. Marchers. Hist. Lords who lived on the borders of Scotland and Wales, and operated, with the permission of the English sovereigns, under their own private laws. - The laws were eventually abolished by the statute 27 Hen. 8, ch. 26. Also termed Lords Marchers. "Thus the Lords Marchers were practically independent potentates of a kind very unusual in England. From this two consequences flowed. In the first place there grew up in their jurisdictions a mixture of Welsh custom and English law known as the custom of the Marches. In the second place, although they held of the king, their allegiance sat so lightly upon them that it was necessary to declare in 1354 that 'all the Lords of the Marches of Wales shall be perpetu­ ally attending and annexed to the crown of England, and not to the principality of Wales, in whose hands so ever the same principality be,'" 1 William Holdsworth, A History of English Law 121 (7th ed. 1956).

marchet (mahr-chet). Hist. A fee paid by a feudal tenant to the lord so that the tenant's daughter could marry someone outside the lord's jurisdiction or so that the lord would waive the droit du seigneur. Also termed marcheta; marchetum; merchet; mercheta; merchetum; maiden rent. See DROIT DU SEIGNEUR. "Any service which stamps the tenant as an unfree man, stamps his tenure as unfree; and in common opinion such services there are, notably the merchetum. Now among the thousands of entries in English documents relating to this payment, it would we believe be utterly impossible to find one which gave any sanction to the tales of a ius primae noctis. The context in which this duty is usually men­ tioned explains at least one of the reasons which underlie it, The tenant may not give his daughter (in some cases his son or daughter) in marriage - at least not outside the manor. , .. No doubt a subjection to this restraint was regarded as very base, and sometimes it is described in vigourous words which express a free man's loathing

1052 for servility: - 'he must buy, he must make ransom for, his flesh and blood,'" 1 Frederick Pollock & FrederiC W, Maitland, The History of English Law Before the Time of Edward I 372 (2d ed. 1898),

march-in rights. Patel1ts. The government's right to step in and grant a new license or revoke an existing license if the owner of a federallv funded invention (or the owner's licensee) has not adequately developed or applied the invention within a reasonable time. 35 USCA § 203. [Cases: Patents marchioness (mahr-shd-nis or mahr-sha-nes), n. [fr. Law Latin marchiol1issa, the feminine counterpart to marchio "marquess"] A female dignity, equivalent to a marquis, conferred by creation or by marriage with a marquis. See MARQUIS. Marcus model. Labor law. A method for determining whether a union member's state-law claim against the employer is preempted by federal law, by focusing on whether the state-law claim can be maintained inde­ pendently of an interpretation of the collective-bar­ gaining agreement. - In Lingle v. Norge Div. ofMagic Chef, Inc., 486 U.S. 399, 108 S.Ct. 1877 (1988), the Supreme Court held that a union member's state-law retaliatory-discharge claim was not preempted by the Labor-Management Relations Act because the claim could be resolved without interpreting the collective­ bargaining agreement. There are at least two models for applying the Lingle test: the White model, which focuses on whether the claim is negotiable or nonnegotiable (that is, whether state law allows the claim to be waived by a private contract), and the Marcus model, which focuses on the independence ofthe claim in relation to the collective-bargaining agreement. Cnder the Marcus model. if the claim can be maintained separately from an interpretation of the collective-bargaining agree­ ment, it is not preempted regardless of whether the claim is generally waivable in contract. The Marcus model is named for the author of the law-review note in which it was proposed. Stephanie R. Marcus, Note, The Need for a New Approach to Federal Preemption of Union Members' State Law Claims, 99 Yale L.J. 209 (1989). See LINGLE TEST. Cf. WHITE MODEL. mare (mair-ee or mahr-ee), n. Hist. [Latin] The sea. See SEA.

mare clausum (mair-ee or mahr-ee klaw-zdm). [Latin "closed sea"] A sea or other body of naVigable water that is under the jurisdiction of a particular nation and is closed to other nations. mare liberum (mair-ee or mahr-ee lib-dr-dm or II-bar-am). [Latin "free sea"] 1. A sea or other body of navigable water that is open to all nations. 2. FREEDOM OF THE SEAS.

marescallus (mar-d-skal-as), 11. [Law Latin]}. A marshal; a high royal officer. Also termed mareschal. 2. A master of the stables. 3. A military officer, similar to a constable, who acted as quartermaster. 4. An officer of the Court of Exchequer. 5. A state officer. 6. An officer of a manor.

1053

marine-rescue doctrine

marettum (ma-ret-am), n. [fr. Latin mare "the sea" + aggregate amount of the national credit resources, which are directed by speculation into the stock market, and of tegere "to cover"] Hist. Marshy ground flooded by the achieving a more balanced use of such resources." 69 Am, sea. Jur. 2d Securities Regulation - Federal § 481 (1993). margin, n. (14c) 1. A boundary or edge. 2. A measure or initial margin requirement. Ihe minimum percentage degree of difference. 3. PROFIT MARGIN. 4. The differ­ of the purchase price that a buyer must deposit with ence between a loan's face value and the market value i a broker. • The Federal Reserve Board establishes of the collateral that secures the loan. 5. Cash or col­ i minimum margin requirements to prevent excessive lateral required to be paid to a securities broker by an ' speculation and price volatility. (Cases: Securities investor to protect the broker against losses from secu­ Regulation (~.J45.ll.J rities bought on credit. [Cases: Securities Regulation maintenance margin requirement. The minimum ~45.1O, 45.11.16.1he amount of an investor's equity I equity that a buyer must keep in a margin account, in securities bought on credit through the broker. expressed as a percentage ofthe account value. [Cases: margin, vb. - marginal, margined, adj. Securities Regulation ~45.11.J good-faith margin. The amount of margin that a creditor exercising good judgment would customar­ margin stock. See marginable security under ily require for a specified security position .• This SECURITY. amount is established without regard to the cus­ margin transaction. A securities or commodities trans­ tomer's other assets or securities positions held with action made through a broker on a margin account. respect to unrelated transactions. Also termed buying on margin. See MARGIN (5). [Cases: marginable security. See SECURITY. Securities Regulation ~45.11.J margin account. See ACCOUNT. mariage de convenance. See marriage of convenience under MARRIAGE (1). marginal cost. See COST (1). marinarius (mar-a-nair-ee-as), n. [Law Latin] Hist. A marginal note. A brief notation, in the nature of a sub­ heading, placed in the margin of a printed statute to , seaman; a mariner. • Marinarius capitaneus (kap-a­ give a brief indication of the matters dealt with in the ! tay-nee-as) was the admiral or warden of the ports. section or subsection beside which it appears .• For marine, adj. (15c) 1. Of or relating to the sea <marine ease of reference, marginal notes are usu. in distinc­ life>. 2. Of or relating to sea navigation or commerce tive print. Many jurisdictions hold that notes of this <marine insurance> <marine interest>. kind cannot be used as the basis for an argument about marine belt. See territorial waters under WATER. the interpretation of a statute. - Also termed sidenote. marine carrier. See CARRIER. [Cases: Statutes (;::)211.] marine contract. See maritime contract under marginal release. See RELEASE (2). CONTRACT. marginal revenue. See REVENUE. Marine Court in the City of New York. The New York marginal tax rate. See TAX RATE. City court, originally created to resolve seamen's margin call. See CALL (2). disputes, that was the predecessor of the City Court margin deficiency. Securities. The extent to which the of New York. amount of the required margin exceeds the equity in marine insurance. See INSURANCE. a margin account. [Cases: Securities Regulation C= marine interest. See MARITIME INTEREST. 45.l1.} marine league. See LEAGUE. margined security. See SECURITY. marine loan. See maritime loan under LOAN. margin list. A Federal Reserve Board list limiting the marine peril. See PERIL OF THE SEA. loan value ofa particular bank's stock to a certain per­ centage (e.g., 50%) of its market value .• When a bank marine protest. A writing attested by a justice of the is not on the list, no limit is placed on the loan value of peace, a notary public, or a consul, made or verified by stock used as collateral. the master of a vessel, stating that the vessel has suffered margin requirement. Securities. The percentage of the a severe voyage and that the master has engaged in purchase price that a buyer must deposit with a broker neither misconduct nor negligence. See PROTEST. to buy a security on margin.• This percentage of the mariner. (l4c) A person employed on a vessel in sea navi­ purchase price is set and adjusted by the Federal Reserve gation; SEAMAN. (Cases: Seamen ~2.] Board. [Cases: Securities Regulation C'::45.11.] marine-rescue doctrine. The rule that when a person "Margin requirements are the statutory and administrative on a ship goes overboard, the ship must use all reason­ restrictions placed upon the percentage of the value of able means to retrieve the person from the water ifthe securities that may be borrowed for the purpose of the purchase of such securities, the term 'margin' referring to person can be seen, and, if the person cannot be seen, the percentage of the value that must be paid in cash by the must search for the person as long as it is reasonably purchaser. Such requirements have been implemented for possible that the person is still alive. [Cases: Seamen the purposes of preventing the excessive use of credit for the purchase or carrying of securities, and of reducing the

~29(1).]

marine risk

marine risk. See PERIL OF THE SEA. mariner's will. See soldier's will under WILL. marine rule. The doctrine that if the cost of restoring damaged property would exceed one-half the value of the property before the damage, then the property is deemed to be totally destroyed. _ The marine rule developed in the context ofapplying marine insurance to damaged ships, but it has also been applied to other property, including buildings. mariner's hypothec. See HYPOTHEC. marine service. See MARITIME SERVICE. maritage (ma-ri-tij), n. See DOWRY. maritagium (mar-a-tay-jee-am), n. [l.aw Latin] Hist. 1. A lord's right to arrange a marriage for his infant ward; specif., the power ofa feudal lord to give his infant ward or a vassal's heiress, minor heir, or widow in marriage, or to extract a fine from a vassal upon the vassal's marriage. 2. Hist. The income derived from fines paid by vassals for the lord's permission to marry. 3. DOWER. 4. A marriage gift; DOWRY. See DOS. - Also termed (in sense 4) maritage. "[Wjhile to the common lawyer dos meant dower, in other systems it meant dowry: a gift to the Wife, or to husband and wife, by the bride's parents or other relatives. In England this was called the 'marriage·gift' or maritagium. Marriage-gifts were com monly made either to establish a cadet branch of a family or to assist a daughter who was not an heiress to make a good match:' J.H. Baker, An intro· duction to English Legal History 31 0 (3d ed. 1990).

maritagium habere (mar-a-tay-jee-am ha-beer-ee). [Law Latin] To have the right of arranging a woman's marriage. _ This was a privilege granted by the Crown to favored subjects. See MARITAGIUM. marital, adj. (17c) Of or relating to the marriage rela­ tionship <marital property>. [Cases: Divorce 248; Husband and Wife (~~1-354.1 marital agreement. (1866) An agreement between spouses or two people engaged to be married con­ cerning the division and ownership of marital property during marriage or upon dissolution by death or divorce; esp. a premarital contract or sepa­ ration agreement primarily concerned with dividing marital property in the event ofdivorce. - Also termed marriage settlement; property settlement. See PRENUP­ TIAL AGREEMENT; POSTNUPTIAL AGREEMENT. [Cases: Husband and Wife marital-communications privilege. See marital privi­ lege (1) under PRIVILEGE (3). marital deduction. See DEDUCTION. marital-deduction trust. See TRUST. marital dissolution. See DIVORCE. marital domicile. See matrimonial domicile under DOMICILE. marital estate. See marital property under PROPERTY. marital home. See FAMILY HOME. marital immunity. See husband-wife immunity under IMMUNITY (2).

1054

marital life-estate trust. See bypass trust under TRUST. marital misconduct. Any of the various statutory grounds for a fault divorce, such as adultery or cruelty. See fault divorce under DIVORCE. [Cases: Divorce 12-38,252.2.] marital portion. 1. Civil law. The portion of a deceased spouse's estate to which the surviving spouse is entitled. 2. Louisiana law. The portion of a deceased spouse's estate to which the surviving spouse is entitled if the spouse died "rich in comparison with the surviving spouse." La. Civ. Code art. 2432. [Cases: Descent and Distribution 52(1).] marital-privacy doctrine. A principle that limits gov­ ernmental intrusion into private family matters, such as those involving sexual relations between married persons.• The marital-privacy doctrine was first rec­ ognized in Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678 (I965). The doctrine formerly deterred state intervention into incidents involving domestic violence. Today, with the trend toward individual privacy rights, the doctrine does not discourage governmental protec­ tion from domestic violence. - Also termed doctrine of marital privacy. [Cases: Constitutional Law 1247.] marital privilege. See PRIVILEGE (3). marital property. See PROPERTY. marital rape. See RAPE. marital residence. See FAMILY HOME. marital rights. (18c) Rights and incidents (such as property or cohabitation rights) arising from the marriage contract. [Cases: Husband and Wife 1-25(6).] marital settlement agreement. See DIVORCE AGREE­ MENT. marital status. The condition of being single, married, legally separated, divorced, or widowed. marital tort. See TORT. maritare (mar-260, 262.J maritime flavor. The relation of a given case to shipping concerns.• This is a factor used in determining federal admiralty jurisdiction over a particular matter by ana­ lyzing whether the matter sufficiently relates to marine and shipping concerns and whether there is need for a federal response. [Cases: Admiralty (;::> 10(2),18.] 'There is perhaps no more elusive concept in the law of admiralty than 'maritime flavor: ... While 'maritime flavor' is incapable of precise definition, certain observations may be helpful. Generally, courts find 'maritime flavor' in those events and transactions which are miijor concerns of the shipping industry. This is tempered by the realization that exercise of federal control will not necessarily promote maritime shipping with the same vigor as control by a coastal or predominantly maritime state. Since federal law will not necessarily be more favorable, courts may find 'maritime flavor' only when there is a perceived need for a uniform national rule, which can only be provided by the federal sovereign: Frank L Maraist, Admiralty in a Nutshell 23 (2d ed. 1988).

maritime interest. Interest charged on a loan secured by a sea vessel or its cargo, or both.• Because of the lender's considerable risk, the interest rate may be extraordinarily high. Also termed marine interest. maritime jurisdiction. See ADMIRALTY AND MARITIME JURISDICTION.

maritime law. The body of law governing marine commerce and navigation, the carriage at sea ofpersons and property, and marine affairs in general; the rules governing contract, tort, and workers' -compensation claims or relating to commerce on or over water. ­ Also termed admiralty; admiralty law; sea law. Cf. GENERAL MARITIME LAW; LAW OF THE SEA. [Cases: Admiralty (;::> 1.5.] maritime lien. See LIEN.

maritime loan. See LOAN. maritime peril. A danger or risk arising from navigating or being at sea. [Cases: Salvage ~-:;-'5.] maritime service. Maritime law. Work performed in connection with a ship or commerce on navigable waters, such as service to preserve a ship's crew, cargo, or equipment. - Also termed marine service. [Cases: Admiralty (;::> 13.) maritime state. Rist. The collective officers and mariners of the British navy. maritime tort. See TORT. maritus (md-rI-tds), n. [Latin] A husband; a married man. mark, n. (bef. 12c) l. A symbol, impression, or feature on something, usu. to identify it or distinguish it from something else. 2. TRADEMARK (1). 3. SERVICEMARK. benchmark. See BENCHMARK. certification mark. See certification trademark under TRADEMARK.

collective mark. See collective trademark under TRADE­ MARK.

markdown. A reduction in a selling price. marked money. (1883) Money that bears a telltale mark so that the money can be traced, usu. to a perpetrator of a crime, as when marked money is given to a kid­ napper as ransom. market, n. (bef. 12c) 1. A place of commercial activity in which goods or services are bought and sold 558.] "For purposes of [the Sherman Act], the relevant geo­ graphic market comprises the area in which the defendant effectively competes with other individuals or businesses

1056 for distribution of the relevant product. Stated differently, the relevant geographic market consists of the area from which the sellers of a particular product derive their cus· tomers, and the area within which the purchasers of the product can practically seek the product." 54 Am. Jur. 2d

Monopolies, Restraints of Trade, and Unfair Trade Practices § 57, at 119-20 (1996).

gray market. A market in which the seller uses legal but sometimes unethical methods to avoid a manufac­ turer's distribution chain and thereby sell goods (esp. imported goods) at prices lower than those envisioned by the manufacturer. See PARALLEL IMPORTS. "One of the most controversial areas of customs law concerns 'gray market goods,' goods produced abroad with authorization and payment but which are imported into unauthorized markets. Trade in gray market goods has increased dramatically in recent years, in part because fluctuating currency exchange rates create opportunities to import and sell such goods at a discount rate from local price levels." Ralph H. Folsom & Michael W. Gordon, Inter­ national Business Transactions § 20.8 (1995).

institutional market. The demand among large inves­ tors and corporations for short-term funds and com­ mercial paper. market overt. An open, legally regulated public market where buyers, with some exceptions, acquire good title to products regardless of any defects in the seller's title. Cf. FAIR. [Cases: Sales C=~234(2).l money market. 1he financial market for dealing in short-term negotiable instruments such as commer­ cial paper, certificates of deposit, banker's accep­ tances, and U.S. Treasury securities. See financial market. negotiated market. A market (such as an over-the­ counter securities market) in which buyers and sellers seek each other out and negotiate prices. Cf. auction market. open market. A market in which any buyer or seller may trade and in which prices and product avail­ ability are determined by free competition. Also termed free market. original market. See primary market. over-the-counter market. See OVER-THE-COUNTER MARKET.

paper market. See derivative market. primary market. The market for goods or services that are newly available for buying and selling; esp. the securities market in which new securities are issued by corporations to raise capital. - Also termed original market. product market. Antitrust. The part of a relevant market that applies to a firm's particular product by identifying all reasonable substitutes for the product and by determining whether these substitutes limit the firm's ability to affect prices. [Cases: Antitrust and Trade Regulation ~557.] "For purposes of an antitrust claim under ... the Sherman Act, the relevant product market includes those services or commodities which are reasonably interchangeable by consumers for the same purposes. In order to establish

1057

market-maker the relevant product market, therefore, a plaintiff must sufficiently identify what types of products are reasonably interchangeable substitutes for the defendant's product within the appropriate area of competition." 54 Am. Jur. 2d

Monopolies, Restraints of Trade, and Unfair Trade Practices § 58, at 121 (1996).

public market. A market open to both buyers and sellers. receding market. See bear market. recognized market. A market where the items bought and sold are numerous and similar, where competitive bidding and bartering are not prevalent, and where prices paid in sales of comparable items are publicly quoted.• Examples of recognized markets include stock and commodities exchanges. Under the UCC, a secured creditor may, upon the debtor's default, sell the collateral in a recognized market without notify­ ing the debtor. Such a sale is presumed to be com­ mercially reasonable. relevant market. Antitrust. A market that is capable of being monopolized - that is, a market in which a firm can raise prices above the competitive level without losing so many sales that the price increase would be unprofitable.• The relevant market includes both the product market and the geographic market. [Cases: Antitrust and Trade Regulation (:::::>556.] secondary market. The market for goods or services that have preViously been available for buying and selling; esp. the securities market in which previously issued securities are traded among investors. - Also termed aftermarket. seller's market. A market in which demand exceeds (or approaches) supply, resulting in raised prices. soft market. A market (esp. a stock market) character­ ized by falling or drifting prices and low volume. spot market. A market (esp. in commodities) in which payment or delivery is immediate 272; Vendor and Purchaser G-:::.> 130(.5).] marketability test. Mining law. The principle that, for someone to obtain a patent on a mining claim on federal land, there must be a shOWing that a reasonably prudent person could extract and market the claimed mineral at a profit, and that at the time of discovery, a large enough market for the mineral existed to attract the efforts of a reasonably prudent person. [Cases: Mines and Minerals (:::::>39.] marketable, adj. (I6c) Of commercially acceptable quality; fit for sale and in demand by buyers. - Also termed merchantable. [Cases: Sales (:::::>272.]

marketable-product rule. Oil & gas. For royalty-calcu­ lation purposes, the doctrine that "production" occurs when oil or gas is pumped up, stored, and made market­ able through processing.• Until producing a market­ able product, the lessee bears all costs of capturing and handling oil and gas. Cf. CAPTURE-AND-HOLD RULE. marketable security. See SECURITY. marketable title. See TITLE (2). marketable-title act. (1957) A state statute providing that a person can establish good title to land by searching the public records only back to a specified time (such as 40 years). See marketable title under TInE (2). [Cases: Limitation ofActions (:::::> 19(1); Vendor and Purchaser (:::::>231 (1).] market activity. See MARKET VOLUME. market approa,h. (1958) A method of appraising real property, by surveying the market and comparing the property to similar pieces of property that have been recently sold, and making appropriate adjustments for differences between the properties, including location, size of the property, and the dates of sale. - Also termed comparative-sales approach; market-compari­ son approach; market-data approach; market-compara­ bles analysis; comparable-sales approach; comparables analysis. Cf. COST APPROACH; INCOME APPROACH. market average. A price level for a specific group of stocks. market-comparables analysis. See MARKET APPROACH. market-comparison approa,h. See MARKET APPROACH. market ,orrection. See DOWN REVERSAL. market-data approach. See MARKET APPROACH. market equity. The percentage ofthe total market value that a particular company's securities account for, rep­ resented by each class of security. Cf. BOOK EQUITY. marketing, n. (16c) 1. The act or process of promoting and selling, leaSing, or licensing products or services. 2. The part of a business concerned with meeting cus­ tomers' needs. 3. The area ofstudy concerned with the promotion and selling of products or services. marketing contract. See CONTRACT. marketing covenant. Oil & gas. In a mineral lease, the implied promise that the lessee will market the produc­ tion from the lease within a reasonable time and at a reasonable price. See REASONABLY-PRUDENT-OPERATOR STANDARD. [Cases: Mines and Minerals (;=:>78.1(8).] marketing defect. See DEFECT. market intermediary. Securities. A person whose business is to enter into transactions on both sides of the market. Investment Company Act, 15 USCA § 80a-3(c)(2)(B)(i). market-maker. Securities. One who helps establish a market for securities by reporting bid-and-asked quo­ tations.• A market-maker is typically a specialist per­ mitted to act as a dealer, a dealer acting in the capacity of block positioner, or a dealer who, with respect to a

market-making

security, routinely enters quotations in an interdealer communication system or otherwise and is willing to buy and sell securities for the dealer's own account. [Cases: Securities Regulation C:=>53.17(3).] market-making, n. The practice of establishing prices for over-the-counter securities by reporting bid-and-asked quotations.• A broker-dealer engaged in this practice, which is regulated by both the NASD and the SEC, buys and sells securities as a principal for its own account, and thus accepts two-way bids (both to buy and to sell). See BID AND ASKED. [Cases: Securities Regulation ~'--::J 53.17(3).] market manipulation. See MANIPULATION. market order. See ORDER (8). market-out clause. Oil & gas. A contract provision per­ mitting a pipeline-purchaser of natural gas to lower the purchase price if market conditions make it uneco­ nomical to continue buying at the contract price, and permitting the well owner to respond by accepting the lower price or by rejecting it and canceling the contract. • Market-out clauses often refer to competing fuels such as fuel oil. - Also termed economic-out clause. [Cases: Gas C:=> 13(I).J market overt. See MARKET. market-participant doctrine. (1983) The principle that, under the Commerce Clause, a state does not discrimi­ nate against interstate commerce by acting as a buyer or seller in the market, by operating a proprietary enter­ prise, or by subsidizing private business .• Under the Dormant Commerce Clause principle, the Commerce Clause - art.!, § 8, cl. 3 of the U.S. Constitution disallows most state regulation of, or discrimination against, interstate commerce. But if the state is par­ ticipating in the market instead of regulating it, the Dormant Commerce Clause analysiS does not apply, and the state activity will generally stand. See Dormant Commerce Clause under COMMERCE CLAUSE. [Cases: Commerce marketplace ofideas. (1949) A forum in which expres­ sions of opinion can freely compete for acceptance without governmental restraint. • Although Justice Oliver Wendell Holmes was the first jurist to discuss the concept as a metaphor for explaining freedom of speech, the phrase marketplace of ideas dates in American caselaw only from 1954. market portfolio. See PORTFOLIO. market power. (1915) The ability to reduce output and raise prices above the competitive level- spedf., above marginal cost - for a sustained period, and to make a profit by doing so .• In antitrust law, a large amount of market power may constitute monopoly power. See MONOPOLIZATION. Cf. MARKET SHARE. "In economic terms, market power is the ability to raise prices without a total loss of sales; without market power, consumers shop around to find a rival offering a better deal." 54 Am. Jur. 2d Monopolies. Restraints of Trade, and Unfair Trade Practices § 49, at 110 n.87 (1996).

market price. See PRICE.

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market quotation. See QUOTATION. market-recovery program. See JOB-TARGETING

PRO­

GRAM.

market share. (1954) The percentage of the market for a product that a firm supplies, usu. calculated by dividing the firm's output by the total market output. • In antitrust law, market share is used to measure a firm's market power, and if the share is high enough generally 70% or more then the firm may be guilty ofmonopolization. See MONOPOLIZATION. Cf. MARKET POWER. [Cases: Antitrust and Trade Regulation C=' 553.] market-share liability. See LIABILITY. market-share theory. Antitrust.!' A method of deter­ mining damages for lost profits by calculati the impact of the defendant's violation on the tiff's output or market share. Cf. BEFORE-AND-AFTER THEORY; YARDSTICK THEORY. [Cases: Antitrust and Trade Regulation C:=>S53.J 2. Patents. A theory of lost-profits remedy offered when the patentee and the infringer share the market with a noninfringing com­ petitor.• Using this method, the court assumes that the percentage of the market that the patentee holds is the same as the percentage of the infringer's market that the patentee would have captured but for the infringe­ ment. market stand-off agreement. Securities. A provision in a stock-purchase contract in which the stockholder promises not to sell or otherwise transfer any securities during a specified period after the corporation makes a public stock offering. Cf. LOCKUP AGREEMENT. market structure. The broad organizational characteris­ tics of a particular market, including seller concentra­ tion, product differentiation, and barriers to entry. market trend. See TREND. market value. See fair market value under VALUE (2). market value at the well. Oil & gas. The value of oil or gas at the place where it is sold, minus the reasonable cost oftransporting it and processing it to make it mar­ ketable. market volume. 1. The total number of shares traded on one day on a stock exchange. 2. lhe total number of shares of one stock traded on one dav. - Also termed market activity. ' Mark Hopkins doctrine. The principle that when an employee leaves a job because of a labor dispute, any later employment the employee has must be bona fide and intended as permanent for the employee to avoid a labor-dispute disqualification from unemployment benefits if the employee leaves the later job. Mark Hopkins, Inc. v. Employment Comm'n, 151 P.2d 229 (Cal. 1944). [Cases: Unemployment Compensation C:=>172.] marking estoppel. See ESTOPPEL. Markman hearing. (1996) Patents. A hearing at which the court receives evidence and argument concern­ ing the construction to be given to terms in a patent

marriage

1059

claim at issue. Markman v. Westview Instruments, Inc., 52 F.3d 967, 984-85 (Fed. Cir. 1995) (en bane), aff'd, 517 U.S. 370, 116 S.Ct.1384 (1996). _ In the namesake decision, the Federal Circuit Court ofAppeals held that the construction of patent claims and therefore the scope of the patentee's rights is a question oflaw. In a Markman hearing, the court interprets the claims before the question of infringement is submitted to the fact-finder. [Cases: Patents C=314.) markmoot (mahrk-moot), n. Rist. An early English or Scottish court that held hearings on a territorial border (Le., a march or mark) between counties, hundreds, or countries. Also spelled markmote. markon. An amount (usu. expressed as a percentage) ini­ tially added to a product's cost to obtain the list price. - Further increases or decreases in price are called markups or markdowns, respectively. marksman. 1. A person who signs documents with some kind of character or symbol instead of writing his or her name. [Cases: Signatures 2. A highly skilled shooter. Marks rule. The doctrine that, when the U.S. Supreme Court issues a fractured, plurality opinion, the opinion of the justices concurring in the judgment on the nar­ rowest grounds - that is, the legal standard with which a majority of the Court would agree - is considered the Court's holding. Marks v. United States, 430 U.S. 188, 97 S.Ct. 990 (1977). [Cases: Courts (:::>90(2).] mark-to-market accounting method. See fair-value accounting method under ACCOL'NTING METHOD. mark up, vb. (1868) 1. To increase (the price of goods, etc.) 2. To revise or amend (a legislative bill, a rule, etc.). 3. To place (a case) on the trial calendar. markup, n. (1916) 1. An amount added to an item's cost to determine its selling price. See PROFIT MARGIN. 2. A session of a congressional committee during which a bill is revised and put into final form before it is reported to the appropriate house. [Cases: United States C'.::>23 (3).]

Markush claim. See PATENT CLAIM.

Markush doctrine (mahr-bsh). Patents. An exception

an exception .... With chemical compounds there may be no SUitable phrase to cover the alternatives. Under limited circumstances a claimant could use an artificial or coined subgeneric group in the form of 'material selected from the group consisting of X, Y, and Z.'" 2 Donald S. Chisum, Patents § 8.06[2], at 8-119 to 8-120 (1992).

Markush group. Patents. A limited form of generic claim that recites an element, states the element is a member of a group, and names the other group members, any of which could substitute for the first recited element. _ All Markush group members must have at least one common property that is mainly responsible for their function in the claimed relationship. Although each material in the group is different, each must be able to serve the same function. See MAR KUSH DOCTRINE. [Cases: Patents (;:::> 101(7).) marque (mahrk). Archaic. Reprisal. See LETTERS OF MARQUE.

marque, law of. Archaic. A reprisal entitling one who has been wronged and is unable to receive ordinary justice to take the goods of the wrongdoer (if they can be found within one's own precinct) in satisfaction for the wrong. See LETTERS OF MARQUE. marquis (mahr-kwis or mahr-kee). (14c) An English nobleman below and next in order to a duke. - Also termed marquess. marquisate (mahr-kwi-sit or -zit), n. [Law Latin] Rist. The seigniory of a marquis. marriage, n. (Bc) 1. The legal union of a couple as spouses. - The essentials of a valid marriage are (1) parties legally capable of contracting to marry, (2) mutual consent or agreement, and (3) an actual con­ tracting in the form prescribed by law. Marriage has important consequences in many areas of the law, such as torts, criminal law, evidence, debtor-creditor rela­ Also termed matri­ tions, property, and contracts. mony; conjugal union. [Cases: Marriage (;:::> 1.12.] "It has frequently been said by courts, and even by Legis­ latures, that marriage is a 'civil contract.' But to conclude from these statements that marriage ... has all, or even many, of the inCidents of an ordinary private contract, would be a grave error. In fact, these statements to the effect that marriage is a 'civil contract' will be found, upon examination, to have been used only for the purpose of expressing the idea that marriage, in the American states, is a civil, and not a religious institution, or that .. , in some states mutual consent alone without formal celebra­ tion is sufficient to constitute a valid marriage known as a common law marriage, or that, as is true in all states, the mutual consent of the parties is essential, even in the case of a ceremonial marriage." Joseph W. Madden, Handbook of the Law of Persons and Domestic Relations § 1-3, at 2-3

to the policy against the use of alternative language in claims, by which in certain claims (esp. those involv­ ing chemical components) a claimant can use an alter­ native, subgeneric phrase when there is no applicable, commonly accepted generic expression. - Character­ ized by a phrase such as "selected from the group con­ Sisting of," the claim includes a group of substances anyone of which could serve the same function in the process. The term Markush comes from Dr. Eugene A. Markush, who was granted a dye-preparation patent in 1923. Ex parte Markush, 1925 Dec. Comm'r Pat. 126. See MARKL'SH GROUP. [Cases: Patents 101(7).]

attempted marriage. See void marriage. clandestine marriage (klan-des-tin). l. A marriage

"The Patent Office early adopted a policy against use of alternative language in claims. Thus, a claimant could not use the specific alternative phrase 'glass or plastic' but could use a generic phrase (such as 'impervious transparent material') that would cover effectively the desired alternatives. The Markush doctrine developed as

that rests merely on the agreement of the parties. 2. A marriage entered into in a secret way, as one solemnized by an unauthorized person or without all required formalities. See Fleet marriage. [Cases: Marriage (;:::>20(1).]

(1931).

marriage

common-law marriage. (17c) A marriage that takes legal effect, without license or ceremony, when two people capable of marrying live together as husband and wife, intend to be married, and hold themselves out to others as a married couple. - The common-law marriage traces its roots to the English ecclesiastical courts, which until 1753 recognized a kind ofin formal marriage known as sponsalia per verba de praesenti, which was entered into without ceremony. Today a common-law marriage, which is the full equivalent of a ceremonial marriage, is authorized in 11 states and in the District of Columbia. If a common-law marriage is established in a state that recognizes such marriages, other states, even those that do not autho­ rize common-law marriage, must give full faith and credit to the marriage. A common-law marriage can be dissolved only by annulment, divorce, or death. Also termed consensual marriage; informal marriage. See common-law husband under HUSBAND; common­ law wife under WIFE. See PER VERBA DE FUTURO CUM COPULA; SPONSALIA PER VERBA DE PRAESENTI. [Cases: Marriage ~ 13, 22.] confidential marriage. In some jurisdictions (such as California), a marriage between a man and a woman in which only the two parties and the officiant are present at the ceremony. - Confidential marriages are neither witnessed nor recorded in public records. They are recorded in nonpublic records. Although rarely performed, they are generally legal. To obtain a confidential marriage, the parties must each be at least 18, must be of the opposite sex, and usu. must have lived together for an extended period. In eccle­ siasticallaw, such a marriage is termed an occult marriage or, if performed in the strictest secrecy, a marriage ofconscience. "A few states provide for confidential marriages. This allows parties to go through all the formalities but have the records of the marriage, including the license, remain con­ fidential. ... A key practical effect of confidential marriage is to allow parties who have been living as husband and wife in ajurisdiction that does not recognize informal mar· riages to achieve marital status without publicity. However, it does not relate back to the time when the parties started holding themselves out as a married couple and thus it can have consequences in determining the extent of marital or community property or various other rights." Walter Wadlington & Raymond C. O'Brien, Family Law in Perspec· tlve 26 (2001).

consensual marriage. Marriage by consent alone, without any formal process. See common-law marriage. [Cases: Marriage ~~, 18.] consular marriage. A marriage solemnized in a foreign country by a consular diplomatic official of the United States. - Consular marriages are recognized in some jurisdictions. [Cases: Marriage ~27.1 covenant marriage. (1990) A special type of marriage in which the parties agree to more stringent require­ ments for marriage and divorce than are otherwise imposed by state law for ordinary marriages. - In the late 1990s, several states (beginning with Louisiana: see Acts 1997, No. 1380, § 5) passed laws providing for

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covenant marriages. The requirements vary, but most of these laws require couples who opt for covenant marriage to undergo premarital counseling. A divorce will be granted only after the couple has undergone marital counseling and has been separated for a speci­ fied period (usu. at least 18 months). The divorce pre­ requisites typically can be waived with proof that a spouse has committed adultery, been convicted of a felony, abandoned the family for at least one year, or physically or sexually abused the other spouse or a child. Also termed (in slang) high-test marriage. cross-marriage. A marriage by a brother and sister to two people who are also brother and sister. dead marriage. A marriage whose substance has dis­ integrated; a marriage that has irretrievably broken down. [Cases: Divorce~12.] de facto marriage (di fak-toh). A marriage that, despite the parties' living as husband and wife, is defective for some reason. [Cases: Marriage defunct marriage. A marriage in which both parties, by their conduct, indicate their intent to no longer be married. [Cases: Divorce C=·12.] Fleet marriage. Hist. 1. A clandestine ceremonial marriage performed in the 17th or 18th century in the Fleet prison in London by a chaplain who had been imprisoned for debt. 2. A clandestine ceremo­ nial marriage performed by an unscrupulous itiner­ ant clergymen in the area in London near the Fleet Prison. - Parliament attempted to stop the practice, but it was not until the statute of26 George 2, ch. 33, declaring marriages performed outside public chapels or churches to be void and punishable as a felony, that the practice ceased. fraudulent marriage. A marriage based on a misrep­ resentation regarding some issue of fundamental importance to the innocent party, who relies on the misrepresentation in the decision to marry. _ The misrepresentation must concern something of fun­ damental importance to a marriage, such as religious beliefs, the ability to have sexual relations, or the ability or desire to have children. Cf. sham marriage. [Cases: Divorce green-card marriage. Slang. A sham marriage in which a U.S. citizen marries a foreign citizen for the sale purpose of allowing the foreign citizen to become a permanent U.S. resident. - The Marriage Fraud Amendments were enacted to regulate marriages entered into for the purpose of circumventing U.S. immigration laws. 8 USCA §§ 1154 (h), 1255(e). See sham marriage. Gretna-Green marriage. A marriage entered into in a jurisdiction other than where the parties reside to avoid some legal impediment that exists where they live; a runaway marriage. - Gretna Green, a Scottish village close to the English border, served as a conve­ nient place for eloping English couples to wed since in Scots law parties over 16 did not need parental consent.

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marriage "A 'Gretna-Green marriage' was a marriage solemnized in Scotland by parties who went there to avoid the delay and formalities required in England .... In the United States, the term describes marriages celebrated between residents of a State who go to a place beyond and yet near to the boundary line of an adjoining State, on account of some advantage afforded by the law of that State." William C. Anderson, A Dictionary of Law 496 (1889).

handfast marriage. 1. Hist. A marriage, often lacking only solemnization by clergy, characterized by the couple's joining of hands to conclude a marriage contract. 2. Hist. A betrothal with all the binding effects of a marriage, including conjugal rights and cohabitation, followed by a later formal ceremony. 3. A trial or probationary marriage wherein the couple agrees to cohabit and behave as spouses for a definite period, usu. one year, at the end of which they will mutually decide to separate or go through a perma­ nently binding marriage. - The legal status of such a marriage is unsettled, as many such trial marriages are initiated with a ritual ceremony including an exchange of vows before a presiding officer legally empowered to perform marriages, yet the couple intends to remain free to end the relationship without legal proceedings. Cf. marriage in jest; common-law marriage. 4. A binding form of marriage practiced by some modern pagan religions. - Unlike in sense 3, such marriages are entered into with the expectation of permanent duration. - Also termed (in senses 3 and 4) handfasting. high-test marriage. See covenant marriage. homosexual marriage. See same-sex marriage. informal marriage. See common-law marriage. in-marriage. Marriage between relatives; in-breeding. left-handed marriage. See morganatic marriage. limited-purpose marriage. A marriage in which the parties agree to be married only for certain reasons. ­ An example is a marriage in which the parties agree to marry so that a child will not be born illegitimate but agree not to live together or to have any duties toward each other. Courts have usu. found these marriages to be binding for all purposes. Cf. sham marriage: green card-marriage. marriage by habit and repute. Scots law. An irregu­ lar marriage created by cohabitation that implies a mutual agreement to be married.• This type of marriage is still recognized in Scotland. See Scotch marriage. [Cases: Marriage (;::;)22.] marriage in jest. A voidable marriage in which the parties lack the reqUisite intent to marry. marriage of conscience. Eccles. law. See confidential marriage. marriage ofconvenience. (ISc) 1. A marriage entered into for social or financial advantages rather than out of mutual love. - Also termed rnariage de conv­ enance. 2. Loosely, an ill-considered marriage that, at the time, is convenient for the parties involved. marriage ofthe left hand. See morganatic marriage.

marriage per verba de futuro subsequente copula. Scots law. Hist. An irregular marriage created by a promise to marry in the future followed by an act of sexual intercourse. - Originally medieval canon law, this type of marriage was recognized in Scotland until 1940. See Scotch marriage. [Cases: Marriage20(1).] sham marriage. (18c) A purported marriage in which all the formal requirements are met or seemingly met, but in which the parties go through the ceremony with no intent ofliving together as husband and wife. Cf. green-card marriage;fraudulent marriage; limited­ purpose marriage. [Cases: Aliens, Immigration, and Citizenship C=>264, 428.] valid marriage. See MARRIAGE (1). voidable marriage. (1845) A marriage that is initially invalid but that remains in effect unless terminated by court order.• For example, a marriage is voidable if either party is underage or otherwise legally incom­ petent, or if one party used fraud, duress, or force to induce the other party to enter the marriage. The legal imperfection in such a marriage can be inquired into only during the lives of both spouses, in a proceed­ ing to obtain a judgment declaring it void. A voidable marriage can be ratified once the impediment to a legal marriage has been removed. [Cases: Marriage C=>37, 54(1), 56.] void marriage. (l7c) A marriage that is invalid from its inception, that cannot be made valid, and that can be terminated by either party without obtaining a divorce or annulment.• For example, a marriage is void if the parties are too closely related or if either party is already married. A void marriage does not exist, has never existed, and needs no formal act to be dissolved - although a judicial declaration may be obtained. - Also termed attempted marriage. See NULLITY OF MARRIAGE (1). [Cases: Marriage C=> 53-54.] 2. Roman law. A consensual agreement between a man and a woman to be married.• The consent of both parties and of any paterfamilias was necessary. Other requirements were the attainment of puberty and legal capacity (conubium). If either or both withdrew consent to be married, the marriage ended in divorce; no specific grounds were necessary. In the Christian empire, divorce without adequate grounds was penal­ ized. 3. MARRIAGE CEREMONY. - marital, adj. ceremonial marriage. (1876) A wedding that follows all the statutory requirements and that has been

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solemnized before a religious or civil official. [Cases: Marriage C=>23-32.] civil marriage. (l7c) A wedding ceremony conducted by an official, such as a judge, or by some other autho­ rized person - as distinguished from one solemnized by a member of the clergy. [Cases: Marriage C=>27.] double-proxy marriage. A wedding in which both parties to a marriage are absent but represented by stand-ins.• Only Montana allows this type of marriage. proxy marriage. (1924) A wedding in which someone stands in for an absent bride or groom, as when one party is stationed overseas in the military. • Proxy marriages are prohibited in most states. [Cases: Marriage C=>23.] marriage article. (1831) A premarital stipulation between spouses who intend to incorporate the stipulation in a postnuptial agreement. [Cases: Husband and Wife C=> 29.] marriage bonus. Tax. The difference between the reduced income-tax liability owed by a married couple filing a joint income-tax return and the greater amount they would have owed had they been single and filed indi­ vidually. - Also termed singles' penalty. Cf. MARRIAGE PENALTY.

marriage broker. One who arranges a marriage in exchange for consideration .• A marriage broker may be subject to criminal liability. marriage-brokerage contract. An agreement under which a person, acting for compensation, procures someone for a marriage.• Traditionally, these con­ tracts have been void as being against public policy. [Cases: Contracts C=> 111.] marriage ceremony. (17c) The religious or civil proceed­ ing that solemnizes a marriage. - Sometimes short­ ened to marriage. - Also termed wedding. marriage certificate. (1821) A document that is executed by the religious or civil official presiding at a marriage ceremony and filed with a public authority (usu. the county clerk) as evidence of the marriage. - Also termed certificate ofmarriage. Cf. MARRIAGE LICENSE. [Cases: Marriage C=>31.] marriage contract. See CONTRACT. marriage license. (l7c) A document, issued by a public authority, that grants a couple permission to marry. Cf. MARRIAGE CERTIFICATE. [Cases: Marriage C=>25(2).] marriage mill. A place that facilitates hasty, often secret, marriages by requiring few or no legal formali­ ties.• Marriage-mill unions may be voidable but are rarely void in the absence of absolute impediments to marriage. marriage-notice book. An English registry of marriage applications and licenses. marriage penalty. Tax. The difference between the greater income-tax liability owed by a married couple filing a joint income-tax return and the lesser amount

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they would owe had they been single and filed individu­ ally. - A marriage penalty exists whenever a married couple is treated disadvantageously under a tax code in comparison with an unmarried couple. Cf. MARRIAGE BONUS.

martial law

security, executes process, and performs other tasks for the court. [Cases: Courts (::::>58.) marshalship, n. United States Marshal. A federal official who carries out the orders of a federal court. • U.S. Marshals are employees of the executive branch of government. [Cases: United States Marshals (::::>29.) marshal, vb. (I5c) L To arrange or rank in order 110.J (::::>59(1).]2. The practice of formulating a jury charge married women's property acts. (sometimes cap.) so that it arranges the evidence to give more credence Statutes enacted to remove a married woman's legal to a particular interpretation. [Cases: Federal Civil Pro­ disabilities; esp. statutes that abolished the common­ cedure (::::>2173.1; Trial C= 204,234(2).] law prohibitions against a married woman's contract­ Marshal of the Queen's Bench. Hist. A custodial officer ing, suing and being sued, or acquiring, holding, and of the Queen's Bench prison. - The position was abol­ conveying property in her own right, free from any restrictions by her husband. - In addition, these acts i ished by the Queen's Prison Act of 1842 (St. 5 & 6 Vict, abolished the spousal-unity doctrine. In actual usage, ' ch.22). Marshalsea (mahr-sh~l-see), n. [fro Law Latin marescal­ the term almost always appears in the plural form (acts, lia) Hist. 1. The court or seat ofthe marshal ofthe royal not act), except when referring to a particular statute. household. 2. A debtor's prison in London under the Also termed married women's acts; married woman's jurisdiction ofthe Court of Marshalsea. See COURT OF property acts; married woman's acts; emancipation MARSHALSEA. acts; married womens emancipation acts. See MERGER DOCTRINE OF HUSBAND AND WIFE; LEGAL-UNITIES mart. See MARKET (1). DOCTRINE. [Cases: Husband and WifeC= 1l1.] marte suo decurrere (mahr-tee s[yJoo-oh d47.] standing master. (1848) A master appOinted to assist the court on an ongOing basis. ] master agreement. Labor law. An agreement between a union and industry leaders, the terms of which serve as a model for agreements between the union and indi­ vidual companies within the industry. master and servant. (16c) The relation between two persons, one of whom (the master) has authority over the other (the servant), with the power to direct the time, manner, and place of the services .• This rela­ tionship is similar to that of principal and agent, but that terminology applies to employments in which the employee has some discretion, while the servant is almost completely under the control of the master. Also, an agent usu. acts for the principal in business relations with third parties, while a servant does not. See master-servant relationship under RELATIONSHIP. [Cases: Labor and EmploymentC=23.] Master at Common Law. An officer of an English superior court of common law, appointed to record court proceedings, supervise the issuance ofwrits, and receive and account for fees paid into the court. Master-General of the Ordnance. See MASTER OF THE ORDNANCE.

master in chancery. 1. An officer appointed by a court of equity to assist the court. 2. English law. (usu. cap.) A senior official or clerk of a court of chancery who assists the Chancellor in various duties such as inquir­ ing into matters referred by the court, examining cases, taking oaths and affidavits, hearing testimony, and computing damages .• There were many Masters in Chancery at the same time. The office was abolished in 1897 and was replaced by the office of Master of the Supreme Court. - Also termed master ojthe chancery. See MASTER OF THE SUPREME COURT. [Cases: Equity (,':::>395.] Master in Lunacy. Hist. A judicial officer appointed by the Lord Chancellor to conduct inquiries into the state

Master of the Rolls

of mind of people alleged to be lunatics incapable of handling their own affairs and to ensure in each case that the lunatic's property is properly managed for his or her benefit. master lease. See LEASE. master limited partnership. See publicly traded partner­ ship under PARTNERSHIP. master of a ship. Maritime law. A commander of a merchant vessel; a captain of a ship.• The master is responsible for the vessel's navigation and the safety and care of the crew and cargo. - Also termed ship­ master. [Cases; Shipping C=)60.] Master of Laws. A law degree conferred on those com­ pleting graduate-level legal study, beyond the J.D. or LL.B. Abbr. LL.M. Cf. JURIS DOCTOR; LL.B.; DOCTOR OF LAWS.

Master of Requests. Hist. A judge of the Court of Requests. master of the chancery. See MASTER IN CHANCERY. Master of the Crowu Office. English law. A Supreme Court officer who is appointed by the Lord ChiefJustice. • Formerly, the Master was the Queen's Coroner and attorney, who was originally appOinted by the Lord Chancellor to prosecute criminal cases in the name of the Crown. Master of the Faculties. Eccles. law. An officer in the province of Canterbury who heads the Court of Fac­ ulties, grants licenses, and admits or removes notaries public. - Also termed magister ad Jacultates. See COURT OF FACULTIES.

Master of the Horse. English law. A peer who as third officer of the royal household, next to the lord steward and lord chamberlain, attends the sovereign on state occasions.• The official was originally in charge of the royal stables, but that duty is now entrusted to the Crown Equerry. Master of the Mint. Hist. A salaried warden who super­ vised all activities of the royal mint. • The office was abolished under the Coinage Act of 1870 and replaced with Master Worker and Warden of Her Majesty's Royal Mint. Mastel' of the Ordnance. Hist. Beginning with the reign of Henry VIII, a superior officer responSible for the royal artillery and weapons. - The more modern representative is the Master-General of the Ordnance, a military officer and member of the Army Council. ­ Also termed Master-General ofthe Ordnance. Mastel' of the Pells. See CLERK OF THE PELLS. Master ofthe Rolls. The president ofthe Court of Appeal in England .• Formerly, the Master of the Rolls was an assistant judge to a court of chancery, responsible for keeping the rolls and chancery records. In recent times, the most famous Master of the Rolls was Lord Denning (who lived from 1899 to 1999). "Since 1875, the Master of the Rolls has been president of the Court of Appeal. Until 1958 he had the general responsibility for the public records (a responsibility then

Master of the Supreme Court transferred to the lord Chancellor) and is still responsible for the records of the Chancery of England. He admits persons as solicitors of the Supreme Court." David M. Walker, The Oxford Companion to Law 816 (1980).

Master of the Supreme Court. An official of the Queen's Bench and Chancery Divisions of the Supreme Court who fills the several positions of master in the com­ mon-law courts, the Queen's Coroner and Attorney, the Master of the Crown Office, record and writ clerks, and associates. master plan. (1914) Land-use planning. A municipal plan for housing, industry, and recreation facilities, including their projected environmental impact. See PLANNED-UNIT DEVELOPMENT. [Cases: Zoning and Planning master policy. See INSURANCE POLICY. master's draft. Maritime law. A contract for money loaned to a ship's master to cover necessary disburse­ ments, payable from the first freight the ship receives, and secured by the vessel and freight. See BOTTOMRY BOND. [Cases: Shipping master-servant relationship. See RELATIONSHIP. master--servant rule. See RESPONDEAT SUPERIOR. master's report. A master's formal report to a court, usu. containing a recommended decision in a case as well as findings of fact and conclusions oflaw. [Cases: Federal Civil Procedure C=> 1896; Reference C=>83-97.] mast selling. Hist. The practice of selling the goods of a dead seaman at the mast. See MAST (2). matched order. See ORDER (8). matching-acceptance rule. See MIRROR-IMAGE RULE. matching principle. (1979) Tax. A method for handling expense deductions, by which the depreciation in a given year is matched by the associated tax benefit. mate. (14c) 1. A spouse or other long-term life partner. 2. A second-in-command officer on a merchant vessel. 3. A petty officer who assists a warrant officer. 4. A friend or companion. materfamilias (may-tar-fa-mil-ee-as), n. [Latin] Roman law. L The wife of a paterfamilias, or the mistress of a family. 2. A respectable woman, either married ar Single. materia (ma-teer-ee-a), n. [Latin] 1. Materials, esp. for building, as distinguished from the form given to something by the exercise oflabar or skill. 2. Matter; substance. material, adj. (14c) 1. Of or relating to matter; physical <material goods>. 2. Having some logical connec­ tion with the consequential facts <material evidence>. [Cases: Criminal Law C=>382; Evidence C=>143.] 3. Of such a nature that knowledge of the item would affect a person's decision-making; significant; essen­ tial <material alteration of the document>. Cf. RELEVANT. materiality, n. material adverse information. See MATERIAL INFOR­ MATION.

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material allegation. See ALLEGATION. material alteration. See ALTERATION (2). material breach. See BREACH OF CONTRACT. material change in circumstances. See CHANGE IN CIR­ CUMSTANCES.

material evidence. See EVIDENCE. material fact. See FACT. material fallacy. See FALLACY. material information. Securities. Information that would be important to a reasonable investor in making an investment decision. _ In the context of an "effi­ cient" market, materiality translates into informa­ tion that alters the price of a firm's stock. Securities Exchange Act of 1934 § lO(b), 15 USCA § 78j(b); 17 CFR § 240.lOb-S. [Cases: Securities Regulation C=>

60.28(11),60.46.]

material adverse information. Securities. Material

information that is likely to make an investment less attractive. material issue. See ISSUE (1). materialman. A person who supplies materials used in constructing or repairing a structure or vehicle. - Also termed material supplier. [Cases: Automobiles C--::>373; Mechanics' Liens C=>82.] materialman's lien. See mechanic's lien under LIEN. material misrepresentation. See MISREPRESENTATION. material representation. See REPRESENTATION (1). material supplier. See MATERIALMAN. material term. See TERM (2). material witness. See WITNESS. material-witness arrest. See ARREST. maternal, adj. (ISc) Of, relating to, or coming from one's mother <maternal property>. Cf. PATERNAL. maternalline. See LINE. maternal-line descent. See DESCENT. maternal-preference presumption. Family law. The belief that custody of a child, regardless of age, should generally be awarded to the mother in a divorce unless she is found to be unfit. _ Most jurisdictions no longer adhere to the maternal-preference presumption. - Also termed maternal-preference doctrine. Cf. PRIMARY­ CAREGIVER DOCTRINE; TENDER-YEARS DOCTRINE.

[Cases: Child Custody (::::24, 458.] maternal property. See PROPERTY. materna maternis (m. Cf. CAN. 3. Loosely, is required to; shall; must . _ In dozens of cases, courts have held may to be synonymous with shall or must, usu. in an effort to effectuate legislative intent. [Cases: Statutes maybem (may-hem), n. (ISc) 1. The crime of maliciously injuring a person's body, esp. to impair or destroy the victim's capacity for self-defense. _ Modern statutes usu. treat this as a form of aggravated battery. See BATTERY. Cf. serious bodily injury under INJURY. [Cases: Mayhem~1.1 "Mayhem, according to the English common law, is mali­ ciously depriving another of the use of such of his members as may render him less able, in fighting, either to defend himself or to annoy his adversary. It is a felony." Rollin M. Perkins & Ronald N. Boyce, Criminal Law 239 (3d ed. 1982).

2. Violent destruction. 3. Rowdy confusion or disrup­ tion. - maim (for sense 1), vb. May it please the court. (17c) An introductory phrase that lawyers use when first addressing a court, esp. when presenting oral argument to an appellate court. mayn (mayn), n. [Law French] Hist. A hand; handwrit­ ing. maynover (md-nOO-Velf or may-nob-velr), n. [Law French] Hist. A work by hand; something produced by manual labor. mayor, n. (14c) An official who is elected or appointed as the chief executive of a city, town, or other munic­ ipality. [Cases: Municipal Corporations 168.] ­ mayoral (may-dr-~l), adj. mayoralty (maY-elr-ClI-tee). (I4c) The office or dignity of a mayor. - Also termed mayorship. mayor of the staple. Hist. A person appointed to take recognizances of debt between staple merchants, and to hear disputes arising between merchants. See STAPLE (1), (2).

mayor's court. See COURT. mayorship. See MAYORALTY. MBDA. abbr. MINORITY BUSINESS

DEVELOPMENT

AGENCY.

MBE. See Multistate Bar Examination under BAR EXAM­ INATION.

MBO. See management buyout under BUYOUT. MC. abbr. MEMBER OF CONGRESS. McCarran Act. A federal law requiring, among other things, members of the Communist party to register with the Attorney General and requiring Communist organizations to provide the government with a list of its members. - The Act was passed in 1950, during the Cold War. Over the years, the U.S. Supreme Court declared various portions of the Act unconstitutional,

1069

but it was not fully repealed until 1993. See, e.g., United States v. Spector, 343 U.S. 169, 72 S.Ct. 591 (1952); Aptheker v. Secretary of State, 378 U.S. 500, 84 S.Ct. 1659 (1964); United States v. Robel, 389 U.S. 258, 88 S.Ct. 419 (1967). - Also termed McCarran Internal Security Act; Subversive Activities Control Act of 1950. McCarran-Ferguson Act. Insurance. A federal law allowing a state to regulate insurance companies doing business in that state, and also to levy a tax on them. 15 USCA §§ lOll-lOI5.lCases: Insurance ~ 1100.] McCarran Internal Security Act. See MCCARRAN ACT. McClanahan presumption. The presumption that the states do not have jurisdiction to tax members of a Native American tribe who live or work on tribal land. • The presumption is not limited to tribal members who live or work on a formal reservation. Instead, it includes those who live or work on informal reserva­ tions, in dependent tribal communities, and on tribal allotments. McClanahan v. Arizona Tax Comm'n, 411 U.S. 164,93 S.Ct. 1257 (1973). [Cases: Taxation C~ 2273,3412,36l2.] McDonnell Douglas test. Employment law. 'The principle for applying a shifting burden of proof in employment­ discrimination cases, essentially requiring the plain­ tiff to come forward with evidence of discrimination and the defendant to come forward with evidence showing that the employment action complained of was taken for nondiscriminatorv reasons.• Under this test, the plaintiff must first establish a prima facie case of discrimination, as by shOWing that the plain­ tiff is a member of a protected group and suffered an adverse employment action. Ifthe plaintiff satisfies that burden, then the defendant must articulate a legitimate, nondiscriminatory reason for the employment action complained of. If the defendant satisfies that burden, then the plaintiff must prove that the defendant's stated reason is just a pretext for discrimination and that dis­ crimination was the real reason for the employment action. AicDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817 (1973). Cf. burden-shifting analysis. [Cases: Civil Rights e::-~, 1118, 1536.] mef. Abbr. Oil & gas. One thousand cubic feet, one ofthe standard units for measuring natural gas. McNabb-Mallory rule. Criminal procedure. The doctrine that a confession is inadmissible if obtained during an unreasonably long detention period between arrest and a preliminary hearing.• Because of the broader protections afforded under the Miranda rule, the McNabb-Mallory rule is rarely applied in modern cases. McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608 (1943); Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356 (1957). - Often shortened to Mallory rule. [Cases: Criminal Law . See FORENSIC MEDICINE. medietas linguae (mi-dl- 193.1 business meeting. A formal meeting called for consid­ ering business, as opposed to a purely educational or social event. - A business meeting may fall within a program that also includes social and informational events. See PROGRAM (1). called meeting. See special meeting. continued meeting. A meeting that will be or has been resumed after a recess (or a so-called adjournment, which may last for several days but is still techni­ cally a recess, since it does not end the meeting). _ A

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continued meeting is technically not an "adjourned meeting," and an "adjourned meeting" may also mean a meeting that has adjourned, so the term "contin­ ued meeting" is preferable. - Also loosely termed adjourned meeting. See RECESS (2). creditors' meeting. Bankruptcy. The first meeting of a debtor's creditors and equity security holders, presided over by the u.s. Trustee and at which a bank­ ruptcy trustee may be elected and the debtor may be examined under oath. 11 USCA § 341. Also termed meeting ofcreditors; 341 meeting;first meeting ofcredi­ tors. [Cases: BankruptcyC=>3024.j mass meeting. A meeting of an unorganized body called to discuss a particular issue or to organize for a particular purpose and usu. open to anyone inter­ ested in that issue or purpose. organizational meeting. 1. A mass meeting that estab­ lishes a permanent or ongoing organization. 2. A meeting that begins an ongoing organization's pro­ ceedings under its regular order, such as adopting governing documents and electing usu. fol­ lOWing a mass meeting and an interval when the orga­ nization operates under provisional officers while its governing documents are drafted. - If the organiza­ tional meeting is for a corporation and the articles of incorporation name the initial directors, the directors hold the meeting. Otherwise, the incorporator holds the meeting. [Cases: Corporations . - To satisfy the statute of frauds, a memorandum can be written in any form, but it must (1) identify the parties to the contract, (2) indicate the contract's subject matter, (3) contain the contract's essential terms, and (4) contain the signature of the party against whom enforcement is sought. Also termed memorial; note. See STATUTE OF FRAUDS. [Cases: Contracts C~32; Frauds, Statute Of e:.;: 103, 105.J 2. An informal written communica­ tion used esp. in offices . ­ Often shortened to memo. 3. A party's written state­ ment of its legal arguments presented to the court, usu. in the form of a brief <memorandum oflaw>. PI. memoranda, memorandums. analytical memorandum. See research memoran­ dum. closed memorandum. A memorandum prepared by a law student using only given facts and the materials, usu. a collection of cases, in a packet provided to the student. Also termed closed memo; closed-universe memo. open memorandum. A memorandum prepared by a law student based on a given set of facts and using any available resources for research. Also termed open memo. persuasive memorandum. A memorandum written to sway the reader to accept the writer's position on a stated problem. research memorandum. A memorandum whose purpose is analyze a legal issue and inform the reader about possible approaches and outcomes. -This type of memorandum is usu. an in-house document. ­ Also termed analytical memorandum. memorandum articles. Marine insurance. Goods described in the memorandum clause. See MEMORAN­ DUM CLAUSE. [Cases: Insurance 2241.] memorandum check. See CHECK. memorandum clause. A marine-insurance clause pro­ tecting underwriters from liability for injury to goods that are particularly perishable, or for minor damages. [Cases: Insurance ~2235, 2241.] "This clause was first introduced into the English [marine­ insurance) policies about the year 1749. Before that time the insurer was liable for every injury. however small, that happened to the thing insured.... The memorandum

clause ... usually declares that the enumerated articles, and any other articles that are perishable in their own nature, shall be free from average under a given rate, unless general, or the ship be stranded. In consequence of this exception, all small partial losses, however inconsider· able, are to be borne by a general average, provided they were incurred in a case proper for such an average .. , ," 3 James Kent, Commentaries on American Law *294-95 (George Comstock ed., 11th ed. 1866).

memorandum decision. See memorandum opinion under OPINION (1). memorandum disposition. See memorandum opinion under OPINION (1). memorandum in error. A document alleging a factual error, usu. accompanied by an affidavit of proof. memorandum of alteration. English law. A patentee's disclaimer of certain rights such as rights to part of an invention that is not new and useful - to avoid losing the whole patent. _ Until the mid-19th century, ifa single patent was granted for two inventions, one of which was not new and useful, the entire patent would be defective. memorandum of associatiou. English law. A legal document setting up a corporation - either with or without limited liability and including the com­ pany's name, purpose, and duration. See ARTICLES OF INCORPORATION.

memorandum of intent. See LETTER OF INTENT. memorandum of understanding. See LETTER OF INTENT. - Abbr. MOU. memorandum opinion. See OPINION (1). memorandum sale. See SALE. memorial, n. (l7e) 1. An abstract of a legal record, esp. 2. A a deed; MEMORANDUM (1). [Cases: Records written statement of facts presented to a legislature or executive as a petition. memoriter (m;l-mor-;l-t;:}r), adv. [Latin "with an accurate memory"] From memory; by recollection. - Memoriter proofof a written instrument is furnished by the recol­ lection of a witness who knew the instrument. menacing, n. (14c) An attempt to commit common-law assault. _ The term is used esp. in jurisdictions that have defined assault to include battery. See ASSAULT. [Cases: Assault and Battery C=>61; Extortion and Threats mendacity (men-das-a-tee), n. (16c) 1. Ihe quality of being untruthful. 2. A lie; falsehood. mendacious (men-day-shds), adj. mendicatorie (men-di-ka-tor-ee-ee). [Law Latin] Hist. As a supplicant or beggar. mend-the-hold doctrine. The principle that a non­ performing party's defense in a breach-of-contract action must be raised before the close of evidence. - A minority ofcourts limit a defendant to the first defense raised after litigation begins, unless the defendant can show a good-faith basis for a new defense. Most courts allow the defendant to raise several defenses as long as

mera facta quae in meris faciendi finibus consistunt

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each defense is based on the reason given for nonper­ formance when the breach occurred. The term comes from 19-century wrestling jargon, "mend the hold" meaning "get a better grip on your opponent." [Cases: Estoppel (;=>68(2).] men of straw. Hist. False witnesses who wandered around courts and were paid to give untrue testimony. _ They stuffed straw into their shoes so that advocates could recognize them. See STRAW MAN (4).

mens (menz), n. [Latin) Mind; intention; wilL mensa. See MANAGIUM. mensa et thoro (men-sd et thor-oh). [Latin] Bed and board. See A MENSA ET THORO; divorce a mensa et thoro under DIVORCE.

mensalia (men-say-Iee-d), n. [fro Latin mensa "a table"] Parsonages; spiritual livings. - Also termed mensal benefices. mensis (men-sis), n. [Latin] Roman hw. A month. mens legis (menz lee-jis). [Latin "the mind of the law"] The spirit or purpose of a law. mens legislatoris (menz lej-is-Id-tor-is). [Latin "the intention of the lawmaker"] Legislative intent. mensor (men-sor), n. [fro Latin metiri "to measure"] Roman law. A measurer ofland; a surveyor.

mens rea (menz ree-d). [Law Latin "guilty mind"] (1861) The state of mind that the prosecution, to secure a con­ viction, must prove that a defendant had when commit­ ting a crime; criminal intent or recklessness . - Mens rea is the second of two essential elements ofevery crime at common law, the other being the actus reus. Also termed mental element; criminal intent; guilty mind. PI. mentes reae (men-teez ree-ee). Cf. ACTUS REUS. [Cases: Criminal Law C='20.] "There are only two states of mind which constitute mens rea, and they are intention, and recklessness." J.w. Cecil Turner, Kenny's Outlines of Criminal Law 29-30 06th ed. 1952). "Most English lawyers would however now agree with Sir James Fitzjames Stephen that the expression mens rea is unfortunate, though too firmly established to be expelled, just because it misleadingly suggests that, in general, moral culpability is essential to a crime, and they would assent to the criticism expressed by a later judge that the true translation of mens rea is 'an intention to do the act which is made penal by statute or by the common law: [Allard V. Selfridge, (1925) 1 K.B. at 137 (per Shearman, J)]." H.L.A. Hart, "Legal Responsibility and Excuses," in Punish· ment and Responsibility 28, 36 (1968). "Some years ago the mens-rea doctrine was criticized on the ground that the Latin phrase is 'misleading.' If the words 'mens rea' were to be regarded as self·explanatory they would be open to this objection, but they are to be considered merely as a convenient label which may be attached to any psychical fact sufficient for criminal guilt (in connection with socially harmful conduct). This includes a field too complex for any brief self-explanatory phrase, and since it is important to have some sort of dialectic shorthand to express the idea, this time· honored label will do as well as any." Rollin M. Perkins & Ronald N. Boyce, Criminal Law 826-27 (3d ed. 1982).

mensularius (men-sd-lair-ee-ds), n. [fro Latin mensa "a table"] Roman law. A dealer in money; a money­ changer; a banker.

mensura (men-s[y]oor-d), n. [Latin] Hist. A measure. mensura domini regis (men-s[y]oor-d dom-d-llI ree-jis). [Law Latin "the measure of our lord the king"] Hist. The standard weights and measures established under Richard I, in his Parliament at Westminster in 1197. "Thus, under king Richard I, in his parliament holden at Westminster, A.D. 1197, it was ordained that there shall be only one weight and one measure throughout the kingdom, and that the custody of the assise or standard of weights and measures shall be committed to certain persons in every city and borough .... In king John's time this ordinance of king Richard was frequently dispensed with for money which occasioned a provision to be made for enforCing it .... These original standards were called pondus regis, and mensura domini regis; and are directed by a variety of subsequent statutes to be kept in the exche­ quer, and all weights and measures to be made conform­ able thereto:' 1 William Blackstone, Commentaries on the Laws of England 265-66 (1765).

mental abuse. See emotional abuse under ABUSE. mental anguish. See EMOTIONAL DISTRESS. mental capacity. See CAPACITY (3). mental cruelty. See CRUELTY. mental distress. See EMOTIONAL DISTRESS. mental element. See MENS REA. mental evaluation. 1. See INDEPENDENT MENTAL EVALU­ ATION. 2. See PSYCHIATRIC EXAMINATION. mental examination. See PSYCHIATRIC EXAMINATION. mental illness. (1847) 1. A disorder in thought or mood so substantial that it impairs judgment, behavior, perceptions of reality, or the ability to cope with the ordinary demands oflife. [Cases: Mental Health 3.] 2. Mental disease that is severe enough to necessi­ tate care and treatment for the afflicted person's own welfare or the welfare of others in the community. mental incompetence. See INCOMPETENCY. mental-process privilege. See DELIBERATIVE-PROCESS PRIVILEGE. mental reservation. (17c) One party's silent understand­ ing or exception to the meaning of a contractual provi­ sion. [Cases: Contracts C=, 14,15.] mental shock. See SHOCK. mental suffering. See EMOTIONAL DISTRESS. mente captus (men-tee kap-tds). [Latin "captured in mind"] Persons who are habitually insane. mentes reae (men-teez ree-ee). pl. MENS REA. mentiri (men-tI-n). vb. [Latin] To lie. mentition (men-tish-dn), n. [fro Latin mentitio "lying"] (17c) The act oflying. mentor judge. See JUDGE. MEPA. abbr. MULTIETHNIC-PLACEMENT ACT OF 1994.

mera facta quae in meris faciendi finibus consistunt (meer-;l fak-td kwee in meer-is fay-shee~en-dI fin-d­

bas k;m-sis-tmt). [Latin] Hist. Mere acts consisting in bare performance. mera noctis (meer-a nok-tis), n. [Latin "middle of the night"] Midnight. mercantile (mar-kan-teel or -tIl or -til), adj. (17c) Of or relating to merchants or trading; commercial mercantile agent. See AGENT (2). mercantile law. See COMMERCIAL LAW (1). Mercantile Law Amendment Acts. The Mercantile Law Amendment Act of 1856 (19 & 20 Vict., chs. 60, 97) and the Mercantile Law Amendment Act (Scotland) of 1856, passed primarily to reconcile parts ofthe mercan­ tile laws of England, Scotland, and Ireland. mercantile paper. See commercial paper (1) under PAPER. mercative (mar-kay-tiv), adj. [fro Latin mercatum "a market"] Scots law. Belonging to trade. mercatum (mar-kay-tam), n. [Law Latin] A market; a contract of sale; a bargain. mercedary (mar-sa-der-ee), n. [Latin] An employer; one who hires. mercenarius (mar-sa-nair-ee-as), n. [Latin) 1. An employee; a servant. 2. A soldier of fortune. - Also spelled mercennarius. mercenary (mar-sa-ner-ee). (14c) Int'llaw. A profes­ sional soldier hired by someone other than his or her own government to fight in a foreign country. mercenlage (mar-san-law). [fro Saxon myrcnalag] The law of the Mercians .• This was one of the three principal legal systems prevailing in England at the beginning of the lith century. It was observed in many midland counties and those bordering on Wales. - Also spelled merchenlage (mar-sh.m-law), Also termed lex mercio­ rum (leks mar-shee-or-am); Mercian law (mar-shee-an or mar-shan). See DANELAW; WEST SAXON LAW.

a series of periodical payments." WW. Buckland, A Manual of Roman Private Law 289-90 (2d ed. 1939).

2. A reward, esp. for a gratuitous service. Cf. HONO­ RARIUM. "A recompense paid for any kind of services, without a preceding agreement (e.g., for saving one's life) is also called merces." Adolf Berger, Encyclopedic Dictionary of Roman Law 581 (1953).

merchandise (m;lr-chan-dIZ also -dIS). (13c) 1. In general, a movable object involved in trade or traffic; that which is passed from one person to another by purchase and sale. 2. In particular, that which is dealt in by mer­ chants; an article of trading or the class of objects in which trade is carried on by physical transfer; collec­ tively, mercantile goods, wares or commodities, or any subjects ofregular trade, animate as well as inanimate. • This definition generally excludes real estate, ships, intangibles such as software, and the like, and does not apply to money, stocks, bonds, Dotes, or other mere representatives or measures of actual commodities or values. - Also termed (in senses 1 and 2) article ofmer­ dealing, chandise. 3. Purchase and sale; trade; or advantage from dealing. merchandise broker. See BROKER. Merchandise Marks Acts. Hist. An 1887 statute (50 & 51 Vict., ch. 28) making it a misdemeanor to fraudulently mark merchandise for sale or to sell merchandise so marked.• This statute was repealed in 1968. merchant. (Be) One whose business is buying and selling goods for profit; esp. a person or entity that holds itself out as having expertise peculiar to the goods in which it deals and is therefore held by the law to a higher standard of expertise than that of a nonmerchant. • Because the term relates solely to goods, a supplier of services is not considered a merchant. [Cases: Sales (;::::c 15.1.]

merces (mar-seez), n. [Latin] Roman law. 1. An agreed payment for a thing or services specifically contracted for; rent, hire.

"The definition of 'merchant' in [UCCI Section 2-104(1) identifies two separate but often interrelated criteria: Does the seller 'deal in goods' of that kind, or does the seller 'otherwise by his occupation' hold himself out as having special knowledge with respect to the goods? It should be emphasized that the drafters have placed these two criteria in the alternative by use of the word 'or.' Thus, the defini­ tion dearly catches all those who regularly sell inventory even though they may have no expertise regarding the particular product. This would include distributors, whole­ salers. and retail dealers, Dealers who sell prepackaged goods containing a defect over which they have no control might be surprised to learn that they have given an implied warranty of merchantability with respect to the goods, but such is the law." Barkley Clark & Christopher Smith, The Law of Product Warranties § 5.02[1], at 5-25 (1984).

'There must be consent. a thing let, and an agreed payment (merces) .... The merces must be certain and Justinian's texts say that, as in sale, it must be money. But there is not the same difficulty here, and Gaius does not state such a rule. It is possible that it did not exist in claSSical law and. even under Justinian, some cases cannot be reconciled with the rule. The rent of land might be in produce and even a fraction of the crop. This last conflicts with the rule of Gaius that it must be certain: it is held by some writers that the text is interpolated, by others that the relation was not really locatio conductiO, but societas (partnership). The merceswas not usually a lump sum: more often itwas

merchantable (m;lr-ch;mt-a-bal), adj. (15c) Fit for sale in the usual course of trade at the usual selling prices; MARKETABLE. - Also termed salable. See implied warranty of merchantability under WARRANTY (2). [Cases: Sales (;::::c272.] merchantability, n. merchantable title. See marketable title under TITLE (2). merchant appraiser. An expert appointed by a customs officer to reexamine and revalue imported goods for

"[Ajbout the beginning of the eleventh centtJry there were three principal systems of laws prevailing in different districts .... The Mercen-Lage, or Mercian laws, which were observed in many of the midland counties, and those bordering on the principality of Wales; the retreat of the ancient Britons; and therefore very probably intermixed with the British or Druidical customs." 1 William Blackstone, Commentaries on the Laws of England 65 (1765).

customs purposes .• lhe appraiser is usu. an experi­ enced merchant who deals in or has dealt in goods of the character and quality of those at issue. An appraiser is appointed only when an importer requests one. [Cases: Customs Duties merchant exception. (1973) Contracts. In a sale of goods, an exemption from the statute of frauds whereby a contract between merchants is enforceable if, within a reasonable time after they reach an oral agreement, a written confirmation of the terms is sent, to which the recipient does not object within ten days of receiving it. • The only effect of failing to object to the written con­ firmation is that the recipient will be precluded from relying on the statute offrauds or the lack of a formal, written agreement as a defense to a breach-of-con­ tract claim. The party seeking to enforce an agreement must still prove that an agreement was reached. UCC § 2-201. [Cases: Frauds, Statute of C=:> 127.J merchant lessee. See LESSEE. merchantman. Archaic. A vessel employed in foreign or interstate commerce or in the merchant service. merchant's accounts. Current, mutual accounts between merchants showing debits and credits for merchan­ dise. merchant's defense. (1972) The principle that a store owner will not be held liable for reasonably detaining a suspected shoplifter, to facilitate an investigation by a law-enforcement officer, if probable cause exists to suspect the detained person of wrongfully removing merchandise from the store. [Cases: False Imprison­ 13.J ment merchant seaman. See SEAMAN. merchant's firm offer. See irrevocable offer under OFFER.

Merchant Shipping Acts. English statutes to improve shipping conditions by, among other things, vesting the supervision of merchant shipping in the board of trade. merchet (mar-chet). See MARCHET. mercheta. See MARCHET. merchetnm. See MARCHET. merciament (mar-see-,,-m;mt). Archaic. See AMERCE­ MENT.

Mercian law. See MERCENLAGE. Mercimoniatus Angliae (m3r-s3-moh-nee-ay-t3s ang­ glee-ee). [Law Latin] Hist. English customs duties on merchandise brought into the country. Mercosur. A common market of South American nations created to facilitate free trade among members .• The entity was created by the Treaty of Asuncion in 1991. The charter nations were Argentina, Brazil, Paraguay, and Uruguay. Also termed Southern Common Market. mercy. (13c) Compassionate treatment, as of criminal offenders or of those in distress; esp. imprisonment,

rather than death, imposed as punishment for capital murder. See CLEMENCY. mercy killing. See EUTHANASIA. mercy rule. (1981) Evidence. The principle that a defen­ dant is entitled to offer character evidence as a defense to a criminal charge.• This type of evidence is often offered by the defendant's friends and relatives. Fed. R. Evid. 404(a)(1). [Cases: Criminal Law mere (mair or mer), n. [Law French) Mother, as in the phrase en ventre sa mere ("in its mother's womb"). mere-continuation doctrine. A principle under which a successor corporation will be held liable for the acts of a predecessor corporation, if only one corporation remains after the transfer of assets, and both corpo­ rations share an identity of stock, shareholders, and directors. Also termed continuity-oi-entity doctrine. Cf. SUBSTANTIAL-CONTINUITY DOCTRINE. [Cases: Cor­ porations C)445.L] mere-evidence rule. Criminal procedure. The former doctrine that a search warrant allows seizure of the instrumentalities of the crime (such as a murder weapon) or the fruits of the crime (such as stolen goods), but does not permit the seizure of items that have evidentiary value only (such as incriminating doc­ uments).• The Supreme Court has abolished this rule, and today warrants may be issued to search for and seize all evidence of a crime. Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642 (1967); Fed. R. Crim. P.41(b). [Cases: Searches and Seizures ~ 102.] mere license. See bare license under LICENSE. mere licensee. See bare licensee under LICENSEE. mere motu. See EX MERE MOTU. mere right. An abstract right in property, without pos­ session or even the right ofpossession. Also termed jus merum; merum jus; meer dreit. "The mere right of property, the jus proprietatis, Without either possession or even the right of possession. This is frequently spoken of in our books under the name of the mere right, jus merum; and the estate of the owner is in such cases said to be totally devested, and put to a right. A person in this situation may have the true ultimate property of the lands in himself: but by the intervention of certain Circumstances, either by his own negligence, the solemn act of his ancestor, or the determination of a court of justice, the presumptive evidence of that right is strongly in favour of his antagonist; who has thereby obtained the absolute right of possession .... The heir therefore in this case has only a mere right, and must be strictly held to the proof of it, in order to recover the lands." 2 William Blackstone, Commentaries on the Laws ofEngland 197-98 (1766).

merestone (meer-stohn). Archaic. A stone that marks land boundaries. - Also spelled mearstone. meretricious (mer-3-trish-3s), adj. (17c) 1. Involv­ ing prostitution . 2. (Of a romantic relationship) involving either unlawful sexual connection or lack of capacity on the part of one party . 3. Superficially attractive but fake nonetheless; alluring by false show <meretri­ cious advertising claims>.

meretricious relationship

meretricious relationship. Archaic. A stable, marriage­ like relationship in which the parties cohabit knowing that a lawful marriage between them does not exist. [Cases: Marriage C=>54(1).] mergee (mar-jee). A participant in a corporate merger. merger. (I8c) 1. The act or an instance of combining or uniting. 2. Contracts. The substitution of a superior form of contract for an inferior form, as when a written contract supersedes all oral agreements and prior understandings. See INTEGRATION (2). [Cases: Con­ tracts C=>245.] "Where two parties have made a simple contract for any purpose, and afterwards have entered into an identical engagement by deed, the simple contract is merged in the deed and becomes extinct. This extinction of a lesser in a higher security, like the extinction of a lesser in a greater interest in lands, is called merger." William R. Anson, Prin­ ciples of the Law of Contract 85 (Arthur L. Corbin ed., 3d Am. ed. 1919).

3. Contracts. The replacement of a contractual duty or of a duty to compensate with a new duty between the same parties, based on different operative facts, for the same performance or for a performance dif­ fering only in liquidating a duty that was previously unliquidated. 4. Property. The absorption of a lesser estate into a greater estate when both become the same person's property. Cf. SURRENDER (3). [Cases: Estates in Property C=> 10.] "[Ilt would be absurd to allow a person to have two distinct estates, immediately expectant on each other, while one of them includes the time of both .... There would be an absolute incompatibility in a person filling, at the same time, the characters of tenant and reversioner in one and the same estate; and hence the reasonableness, and even necessity, of the doctrine of merger." 3 James Kent, Com­ mentaries on American Law *99 (George Comstock ed., 11th ed. 1866).

5. Criminal law. The absorption of a lesser included offense into a more serious offense when a person is charged with both crimes, so that the person is not subject to double jeopardy.• For example, a defendant cannot be convicted of both attempt (or solicitation) and the completed crime - though merger does not apply to conspiracy and the completed crime. - Also termed merger of offenses. [Cases: Criminal Law C=> 30.] 6. Civil procedure. The effect of a judgment for the plaintiff, which absorbs any claim that was the subject of the lawsuit into the judgment, so that the plaintiff's rights are confined to enforcing the judgment. Cf. BAR (5). [Cases: Judgment C=> 582.] 7. The joining of the procedural aspects of law and equity. 8. The absorp­ tion of one organization (esp. a corporation) that ceases to exist into another that retains its own name and identity and acquires the assets and liabilities of the former.• Corporate mergers must conform to statutory formalities and usu. must be approved by a majority of the outstanding shares. - Also termed corporate merger. Cf. CONSOLIDATION (4); BUYOUT. [Cases: Cor­ porations C=>581.] bust-up merger. A merger in which the acquiring corporation sells off lines of business owned by the

1078

target corporation to repay the loans used in the acquisition. cash merger. A merger in which shareholders of the target company must accept cash for their shares. ­ Also termed cash-out merger; freeze-out merger. [Cases: Corporations C=>584.] conglomerate merger. A merger between unrelated businesses that are neither competitors nor custom­ ers or suppliers of each other. [Cases: Antitrust and Trade Regulation C=>769.] "A merger which is neither vertical nor horizontal is a con­ glomerate merger. A pure conglomerate merger is one in which there are no economic relationships between the acquiring and the acquired firm. Mixed conglomerate mergers involve horizontal or vertical relationships, such as the acquisition of a firm produCing the same product as the acquirer but selling it in a different geographical market, which is not a horizontal merger because the merging companies are not competitors ...." 54 Am. Jur. 2d Monopolies, Restraints of Trade, and Unfair Trade Practices § 169, at 226 (1996).

de facto merger (di fak-toh). A transaction that has the economic effect of a statutory merger but that is cast in the form of an acquisition or sale of assets or voting stock. • Although such a transaction does not meet the statutory requirements for a merger, a court will generally treat it as a statutory merger for purposes of the appraisal remedy. [Cases: Corpora­ tions C=>445.1.] downstream merger. A merger of a parent corporation into its subsidiary. forward triangular merger. See triangular merger. freeze-out merger. See cash merger. horizontal merger. A merger between two or more businesses that are on the same market level because they manufacture similar products in the same geo­ graphic region; a merger of direct competitors. ­ Also termed horizontal integration. product-extension merger. A merger in which the products of the acquired company are complemen­ tary to those of the acquiring company and may be produced with similar facilities, marketed through the same channels, and advertised by the same media. reverse triangular merger. A merger in which the acquiring corporation's subsidiary is absorbed into the target corporation, which becomes a new sub­ sidiary of the acquiring corporation. - Also termed reverse subsidiary merger. short-form merger. A statutory merger that is less expensive and time-consuming than an ordinary statutory merger, usu. permitted when a subsidiary merges into a parent that already owns most of the subsidiary's shares.• Such a merger is generally accomplished when the parent adopts a merger reso­ lution, mails a copy of the plan to the subsidiary's record shareholders, and files the executed articles of merger with the secretary of state, who issues a certificate of merger.

1079

statutory merger. A merger provided by and conducted according to statutory requirements. stock merger. A merger involving one company's purchase of another company's capital stock. triangular merger. A merger in which the target cor­ poration is absorbed into the acquiring corporation's subsidiary, with the target's shareholders receiving stock in the parent corporation. - Also termed sub­ sidiary merger;forward triangular merger. upstream merger. A merger of a subsidiary corpora­ tion into its parent. vertical merger. A merger between businesses occupy­ ing different levels of operation for the same product, such as between a manufacturer and a retailer; a merger ofbuyer and seller. 9. The merger of rights and duties in the same person, resulting in the extinction of obligations; esp. the blending ofthe rights ofa creditor and debtor, resulting in the extinguishment ofthe creditor's right to collect the debt.• As originally developed in Roman law, a merger resulted from the marriage of a debtor and creditor, or when a debtor became the creditor's heir. Also termed confusion; confusion ofdebts; confusion of rights. Cf. CONFUSION OF TITLES. 10. The absorption of a contract into a court order, so that an agreement between the parties (often a marital agreement incident to a divorce or separation) loses its separate identity as an enforceable contract when it is incorporated into a court order. mergerdause. See INTEGRATION CLAUSE. merger doctrine. 1. Copyright. The principle that since an idea cannot be copyrighted, neither can an expres­ sion that must inevitably be used in order to express the idea. _ When the idea and expression are very dif­ ficult to separate, they are said to merge. For example, courts have refused copyright protection for business­ ledger forms (Baker v. Selden, 101 U.S. 99 (1879)), and for contest rules that were copied almost verbatim (Morrissey v. Procter & Gamble, 379 F.2d 67S (1st Cir. 1967»). - Also termed Baker v. Selden doctrine. [Cases: Copyrights and Intellectual Property . 2. (Of a case, etc.) meriting a legal victory; having legal worth <meritorious claim>. meritorious consideration. See good consideration under CONSIDERATION (1). meritorious defense. See DEFENSE (1). merit regulation. Under state blue-sky laws, the practice of requiring securities offerings not only to be accom­

mesne

panied by a full and adequate disclosure but also to be substantively fair, just, and equitable. merits. (18c) 1. The elements or grounds of a claim or defense; the substantive considerations to be taken into account in deciding a case, as opposed to extra­ neous or technical points, esp. of procedure . 2. EQUITY (3) . merits brief. See briefon the merits under BRIEF. merits discovery. See DISCOVERY. merit system. (1879) The practice of hiring and promot­ ing employees, esp. government employees, based on their competence rather than political favoritism. Cf. SPOILS SYSTEM. [Cases: Officers and Public Employees 11.] Merit Systems Protection Board. The independent federal agency that oversees personnel practices of the federal government and hears and decides appeals from adverse personnel actions taken against federal employees.• It has five regional offices and five field offices. Its functions were transferred from the former Civil Service Commission under Reorganization Plan No.2 of1978. Abbr. MSPB. See CIVIL SERVICE COM­ MISSION. [Cases: Officers and Public Employees 3366.] milling in transit. An arrangement in which a shipment is temporarily detained at an intermediate point, usu. for the application of some manufacturing process, with or without an increase of a freight charge by the carrier. [Cases: Carriers C:=> 12(2), 13(2).] mill power. A unit of water power used in defining quan­ tities and weights of water available to a lessee. [Cases: Waters and Water Courses C:=>28S.] mill privilege. The right of a mill-site owner to construct a mill and to use power from a stream to operate it, with due regard to the rights of other owners along the stream's path. [Cases: Manufactures C:=>2.] mill rate. A tax applied to real property whereby each mill represents $1 of tax assessment per $1,000 of the property's assessed value . - Also termed millage rate. [Cases: Taxation C:=>2428.] mill site. 1. A small tract of land on or contiguous to a watercourse, suitable for the erection and operation of a mill. [Cases: Manufactures C:=>2.] 2. Mining law. A small parcel of nonmineral public land (not exceed­ ing five acres) claimed and occupied by an owner of a mining claim because the extra space is needed for mining or ore-reduction operations. 30 USCA § 42. Mimms order. (1993) A police officer's command for a motorist to get out of the vehicle.• A Mimms order need not be independently justified if the initial stop was lawful. Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330 (1977). [Cases: Automobiles C:=>349(16).] mina (mI-nJ), n. [Law Latin] Hist. A measure of grain or corn. minage (mI-nij), n. [Law French] Hist. A toll for selling grain or corn by the mina. minare (mi-nair-ee), vb. [Law Latin] Hist. To mine. mind. (bef. 12c) 1. The source of thought and intellect; the seat of mental faculties. 2. The ability to will, direct, or assent. - Also termed sound mind. 3. Memory. mind and memory. Archaic. A testator's mental capacity to make a will <she argued that her uncle was not of sound mind and memory when executing the will because he had Alzheimer's disease>.• This phrase was generally used as part of the phrase ofsound mind and memory, referring to the capacity of a testator to make a will. See BONA MEMORIA; CAPACITY (2). mine. (l4c) 1. An underground excavation used to obtain minerals, ores, or other substances. 2. A mineral deposit; a place containing a mineral deposit. mineral, n. (ISc) 1. Any natural inorganic matter that has a definite chemical composition and specific physical properties that give it value <most minerals

1084

are crystalline solids>. [Cases: Mines and Minerals C:=>48.] 2. A subsurface material that is explored for, mined, and exploited for its useful properties and com­ mercial value. 3. Any natural material that is defined as a mineral by statute or caselaw. mineral acre. Oil & gas. The full mineral interest in one acre ofland. [Cases: Mines and Minerals C:=>47.] mineral deed. See DEED. mineral district. See DISTRICT. mineral easement. See EASEMENT. mineral entry. (1882) The right of entry on public land to mine valuable mineral deposits. [Cases: Mines and Minerals C:=>9-38.] "It is the policy of the United States, as expressed in Acts of Congress, to make public lands available to the people for the purpose of mining valuable mineral deposits, and to encourage exploration for, and development of, mineral resources on public lands. Accordingly, the United States has reserved all lands 'valuable for minerals' ... from disposition under the nonmineral statutes, and has made them open to entry for mining purposes, under regulations prescribed by law .... In other words ... where statute authorizes the Federal Government to acquire lands, without indicating that lands are to be acquired for a par· ticular purpose, lands so acquired are public lands subject to mineral entry." 53A Am. Jur. 2d Mines and Minerals § 23, at 274 (1996).

mineral interest. Oil & gas. The right to search for, develop, and remove minerals from land or to receive a royalty based on the production of minerals.• Mineral interests are granted by an oil-and-gas lease. - Also termed mineral right. See FEE INTEREST; SUBSURFACE INTEREST; SURFACE INTEREST. [Cases: Mines and Minerals C:=>47, 62.1, 73.1.] mineral land. See LAND. mineral lease. See LEASE. mineral lode. (1870) A mineral bed of rock with definite boundaries in a general mass of a mountain; any belt of mineralized rock lying within boundaries that clearly separate it from neighboring rock. - Also termed lode. "Typically, a lode is a concentration of valuable mineral with boundaries sufficiently distinct to import such a definite trend, continuity, and apartness to the formation that it can be traced through the enclosing mass of rock." 1 American Law of Mining § 32.02(2), at 32-7 (2d ed. 1998).

mineral right. See MINERAL INTEREST.

mineral royalty. See ROYALTY (2).

mineral servitude. See SERVITUDE (2).

Minerals Management Service. A unit in the U.S.

Department of the Interior responsible for entering into and managing leases for the recovery of minerals on the outer continental shelf and for collecting and distributing royalty and other payments due the U.S. and Indian tribes from mineral production. [Cases: Mines and Minerals C:=>S.I(I).] minerator (min-Jr-ay-tJr). [Law Latin] A miner. miner's inch. A measurement of water discharge, equaling nine-gallons per minute from a one-inch

1085

square pipe. - The precise measurement of a miner's inch varies in different localities. Mine Safety and Health Administration. A unit in the U.S. Department of Labor responsible for prevent­ ing mine accidents and occupational diseases in the nation's mining industry. - It sets mandatory safety and health standards, assesses fines for their viola­ tion, and investigates mine accidents. Its programs are operated through regional administrators located in the nation's mining regions. - Abbr. MSHA. [Cases: Labor and Employment (>=2634.J minimal contacts. See MINIMUM CONTACTS. minimalist retributivism. See RETRIBUTIVISM. minimal participant. (1987) Criminal law. Under the federal sentencing guidelines, a defendant who is among the least culpable of a group of criminal actors, as when the defendant does not understand the scope or structure of the criminal enterprise or the actions of the other members of the group. - The offense level for a crime of a minimal participant can be decreased by four levels. U.S. Sentencing Guidelines Manual § 3B1.2(a). Cf. MINOR PARTICIPANT. [Cases: Sentenc­ ing and Punishment =764.J minimal scrutiny. See RATIONAL-BASIS TEST. mini-maxi, n. An underwriting arrangement for a securities transaction, whereby a broker is required to sell the minimum number of securities on an all-or­ none basis and the balance on a best-efforts basis. See UNDERWRITING (2).

miniment (min-a-m;mt). See ML'NIMENT. mini-Miranda requirement. Debtor-creditor law. A debt collector's obligation when communicating with a debtor to inform the debtor that (1) the communica­ tion is from a debt collector seeking to collect a debt and (2) any information received will be used for that purpose.• This disclosure is required by the Fair Debt Collection Practices Act. [Cases: Antitrust and Trade Regulation minimization requirement. (1972) Criminal law. The mandate that police officers acting under an eavesdrop­ ping warrant must use the wiretap in a way that will intercept the fewest possible conversations that are not subject to the warrant. [Cases: Telecommunications ='1473.] minimum, adj. (17c) Of, relating to, or constituting the smallest acceptable or possible quantity in a given case <minimum charge to a customer of a public utility>. minimum contacts. (1945) A nonresident defendant's forum-state connections, such as business activity or actions foreseeably leading to business activity, that are substantial enough to bring the defendant within the forum-state court's personal jurisdiction without offending traditional notions of fair play and substan­ tial justice. International Shoe Co. v. Washington, 326 U.S. 310,66 S.Ct. 154 (1945). Also termed minimal contacts. [Cases: Corporations (:::::>665(1); Courts 12(2.5); Federal Courts (:::::>76.5,79.]

mining partnership

minimum-fee schedule. Hist. A list of the lowest fees that a lawyer may charge, set by a state bar association. - The courts held that minimum-fee schedules, now defunct, violated antitrust laws. minimum lot. See LOT (1). minimum-royalty clause. Patents. A royalty-agreement provision that prescribes a fixed payment by the licensee to the patentee, regardless of whether the invention is actually used. [Cases: Patents (:::::>218(1), (5).] minimum sale. See EXHIBITION VALUE. minimum scrutiny. See RATIONAL-BASIS TEST. minimum sentence. See SENTENCE. minimum tax. See alternative minimum tax under TAX.

minimum wage. See WAGE. mining. The process of extracting ore or minerals from the ground; the working of a mine.• This term also encompasses oil and gas drilling. mining claim. A parcel of land that contains precious metal in its soil or rock and that is appropriated by a person according to established rules and customs known as the process of location. See LOCATION (4), (5). [Cases: Mines and Minerals C= 13,28.] lode claim. A mining claim (on public land) to a well­ defined vein embedded in rock; a mining claim to 16, a mineral lode. [Cases: Mines and Minerals 28.] placer claim. A mining claim that is not a lode claim; a claim where the minerals are not located in veins or lodes within rock, but are usu. in softer ground near the earth's surface. [Cases: Mines and Minerals C-=> 16,28.] "'t has long been recognized that the distinction between lode and placer claims must be tempered by scientific findings as to the nature of the mineral deposits under consideration, and the practicalities of modern mining methods, which may permit the use of surface mining methods to remove certain lodes or veins of minerals pre­ viously only reached by underground methods." 53A Am. Jur. 2d Mines and Minerals § 21, at 273 (1996).

mining lease. See LEASE. mining location. 1. See LOCATION (4). 2. See LOCATION (5).

mining partnership. An association of persons to jOintly share a mining business, including the profits, expenses, and losses. - The partnership has features of both a tenancy in common and an ordinary commer­ cial partnership. [Cases: Mines and Minerals (;::::>96.J "It has generally been held that the law governing ordinary commercial or trading partnerships applies, with a few exceptions, to mining partnerships. The principal excep· tion and the main distinction between mining partnerships and commercial partnerships generally is based on the fact that the principle of delectus personae, meaning the right of a partner to exercise choice and preference as to the admission of any new members to the firm, and as to the persons to be so admitted, does not apply to mining partnerships ...." 58 c.j.S. Mines and Minerals § 387, at 380 (1998).

mining rent

mining rent. Consideration given for a mining lease, whether the lease creates a tenancy, conveys a fee, or grants a mere license or incorporeal right. [Cases: Mines and Minerals 79.] minister, n. (14c) 1. A person acting under another's authority; an agent. 2. A prominent government officer appointed to manage an executive or administrative department. 3. A diplomatic representative, esp. one ranking below an ambassador. [Cases: Ambassadors and Consuls 1-5.] foreign minister. 1. A minister of foreign affairs, who in many countries is equivalent to the u.s. Secretary of State. 2. An ambassador, minister, or envoy from a foreign government. [Cases: Ambassadors and Consuls C=> 1-5.] minister plenipotentiary (plen-;)-p;)-ten-shee-er-ee). A minister ranking below an ambassador but pos­ sessing full power and authority as a governmental representative, esp. as an envoy of a sovereign ruler. - This officer is often regarded as the personal repre­ sentative of a head of state. public minister. A high diplomatic representative such as an ambassador, envoy, or resident, but not includ­ ing a commercial representative such as a consul. [Cases: Ambassadors and Consuls C=>4.] 4. A person authorized by a Christian church to perform religiOUS functions. [Cases: Religious Societ­ ies ministerial, adj. (I6c) Of or relating to an act that involves obedience to instructions or laws instead of discretion, judgment, or skill 113.] miscontinuance. (16c) A continuance erroneously ordered by a court. miscreant (mis-kree-ant). (l4c) 1. A wrongdoer. 2. An apostate; an unbeliever. misdate. (16c) To erroneously date (a document, etc.). misdelivery. (1867) Delivery not according to contrac­ tual specifications; esp. delivery to the wrong person or delivery of goods in a damaged condition .• This concept applies to contracts ofcarriage and contracts of sale, lease, etc., requiring delivery in some form. [Cases: Carriers (:::;::,93; Shipping -rab-;>-lee di-poz-;>-t;>m). [Law Latin "a pitiful deposit"] Civil law. A deposit or bailment made in an emergency, as in a shipwreck, fire, or insurrection. miserere (miz-a-reer-ee). [Latin] Hist. Have mercy. ­ This is the first phrase of the 51st psalm, used to test a person claiming benefit of clergy. See NECK VERSE. misericordia (miz-;>-ri-kor-dee-a). [Law Latin] Hist. 1. Mercy. 2. An arbitrary fine as a punishment. 3. An exemption from a fine. misericordia communis (miz-;>-ri-kor-dee-;> k;>-myoo­ nis). [Law LatinJ Hist. A fine levied on a whole county. misfeasance (mis-fee-z;>nts), n. (16c) 1. A lawful act performed in a wrongful manner. [Cases: Negligence {~200.J 2. More broadly, a transgression or trespass;

1090 MALFEASANCE.

Cf.

NONFEASANCE. --

misfeasant,

adj. - misfeasor, n.

misfeasance in public office. (1880) The tort of excessive, malicious, or negligent exercise of statutory powers by a public officer. Also termed malfeasance. [Cases: Officers and Public Employees (::::::> 116.] mishering. See MISKERING. mishersing. See MISKERING. misjoinder (mis-joyn-d;>r). (I8c) 1. The improper union of parties in a civil case. See JOINDER. Cf. DlSJOINDER; NONJOINDER. [Cases: Federal Civil Procedure (::::::>387; Parties (::::::>85, 89.J 2. The improper union of offenses in a criminal case. [Cases: Indictment and Informa­ 126.J tion miskenning (mis-ken-ing). [fro French misw "wrong" + Saxon cennan "to declare"J 1. A wrongful summons. 2. A pleading mistake or irregularity. "But every defeated plaintiff could be amerced 'for a false claim.' Incidentally too any falsehood ... that is, anyfraudu­ lent misuse of the machinery of the law, would be punished by imprisonment. Then again every default in appearance brought an amercement on the defaulter and his pledges. Every mistake in pleading, every miskenning . .. brought an amercement on the pleader if the mistake was to be retrieved. A litigant who hoped to get to the end of his suit without an amercement must have been a sanguine man; for he was playing a game of forfeits." 2 Frederick Pollock & Frederic W. Maitland, The History of English Law Before the Time of Edward I 519 (2d ed. 1899).

miskering (mis-k;>r-ing). Hist. Freedom or immunity from amercement. - Also termed abishering; abishers­ ing; mishering; mishersing. mislaid property. See PROPERTY. mislay, vb. (15c) To deposit (property, etc.) in a place not afterwards recollected; to lose (property, etc.) by forgetting where it was placed. See mislaid property under PROPERTY. misleading, adj. (l6c) (Of an instruction, direction, etc.) delusive; calculated to be misunderstood. [Cases: Fraud 13(1)-1 misnomer (mis-noh-m;>r). (l5c) A mistake in naming a person, place, or thing, esp. in a legal instrument. - In federal pleading - as well as in most states misnomer of a party can be corrected by an amend­ ment, which will relate back to the date of the original pleading. Fed. R. Civ. P. 15(c)(3). [Cases: Federal Civil Procedure (::::::> 382; Limitation of Actions (::::::> 121(2); Parties (;::::>94, 95(3).] misperformance. (17c) A faulty attempt to discharge an obligation (esp. a contractual one). Cf. PERFORMANCE; NONPERFORMAKCE.

mispleading. (16c) Pleading incorrectly. - A party who realizes that its pleading is incorrect can usu. amend the pleading, as a matter of right, within a certain period, and can thereafter amend with the court's permission. misprision (mis-prizh-;>n). (15c) 1. Concealment or non­ disclosure of a serious crime by one who did not par­

1091

misrepresentation

ticipate in the crime. [Cases: Compounding Offenses

dantly) false misrepresentation. Cf. (1). - misrepresent, vb.

~l.]

clerical misprision. (I8c) A court clerk's mistake or fraud that is apparent from the record. misprision offelony. (l6c) Concealment or nondisclo­ sure of someone else's felony. See 18 USCA § 4. [Cases: Compounding Offenses C;;,) 1.1.] "In fact, whatever the law may be, it is not the general custom to prosecute for misprision of felony, even where a person who knows of a felony is questioned by the pOlice and refuses to make a statement. Indeed, Stephen, writing in the nineteenth century, regarded the offence as 'practically obsolete'; and American courts have refused to recognise it as subsisting, But there have been four suc­ cessful prosecutions in England during the last quarter­ century ... ," Glanville Williams, Criminal Law 424 (2d ed.1961).

!

i

misprision oftreason. (16c) Concealment or nondis­ closure of someone else's treason. [Cases: Treason negative misprision. (I8c) 1he wrongful concealment of something that should be revealed <misprision of treason>. positive misprision. (I8c) The active commission of a wrongful act <seditious conduct against the government is positive misprision>. 2. Seditious conduct against the government. 3. An official's failure to perform the duties of public office. [Cases: Officers and Public Employees Cd 121.]4. Mis­ understanding; mistake. 'The word 'misprision' has been employed with different meanings. While Blackstone thought of it as referring to a grave misdemeanor, it seems to have been used earlier to indicate the entire field of crime below the grade of treason or felony before the word 'misdemeanor' became the generally accepted label for this purpose. More recently it has been said: 'Misprision is nothing more than a word used to describe a misdemeanor which does not possess a specific name: [United States v. Perlstein, 126 F.2d 789, 798 (3d Or. 1942).1 It has been associated with two specific offenses, and only these, from the earliest times, They are misprision of treason and misprision of felony, which consist of the criminal default of one in regard to the crime of another." Rollin M. Perkins & Ronald N. Boyce, Criminal Law 572 (3d ed, 1982).

misprisor (mis-prI-zar). One who commits mispriSion of felony. misreading. An act of fraud in which a person incor­ rectly reads the contents of an instrument to an illiter­ ate or blind person with the intent to deceitfully obtain that person's signature. [Cases: Fraud (~4.5.1 misrecital. (16c) An incorrect statement of a factual matter in a contract, deed, pleading, or other instru­ ment. misrepresentation, n. (l7c) 1. The act of making a false or misleading assertion about something, usu. with the intent to deceive .• The word denotes not just written or spoken words but also any other conduct that amounts to a false assertion. [Cases: Fraud ~9.1 2. The asser­ tion so made; an assertion that does not accord with the facts. Also termed false representation; (redun­

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REPRESENTATION

"A misrepresentation, being a false assertion of fact, commonly takes the form of spoken or written words. Whether a statement is false depends on the meaning of the words in all the circumstances, including what may fairly be inferred from them. An assertion may also be inferred from conduct other than words, Concealment or even non-disclosure may have the effect of a misrepre­ sentation . .. [AJn assertion need not be fraudulent to be a misrepresentation. Thus a statement intended to be truthful may be a misrepresentation because of ignorance or carelessness, as when the word 'not' is inadvertently omitted or when inaccurate language is used. But a misrep­ resentation that is not fraudulent has no consequences ... unless it is material." Restatement (Second) of Contracts § 159 cmt. a (1979).

fraudulent misrepresentation. (18c) A false statement that is known to be false or is made recklessly ­ without knOWing or caring whether it is true or false and that is intended to induce a party to det­ rimentally rely on it. Also termed fraudulent rep­ resentation; deceit. [Cases: Fraud ~8.j "A misrepresentation is fraudulent if the maker intends his assertion to induce a party to manifest his assent and the maker (a) knows or believes that the assertion is not in accord with the facts, or (b) does not have the confidence that he states or implies in the truth of the assertion, or (c) knows that he does not have the basis that he states or implies for the assertion." Restatement (Second) of Con­ tracts § 162(1) (1979).

innocent misrepresentation. (1809) A false statement that the speaker or writer does not know is false; a misrepresentation that, though false, was not made fraudulently. [Cases: Fraud C=, 13(2).] material misrepresentation. (I8c) 1. Contracts. A false statement that is likely to induce a reasonable person to assent or that the maker knows is likely to induce the recipient to assent. [Cases: Contracts C:-:>94.J 2. Torts. A false statement to which a reasonable person would attach importance in deciding how to act in the transaction in question or to which the maker knows or has reason to know that the recipient attaches some importance. See Restatement (Second) of Torts § 538 (1979). [Cases: Fraud ~ 18.] "The materiality of a misrepresentation is determined from the viewpoint of the maker, while the justification of reliance is determined from the viewpoint of the reCipi­ ent.... The requirement of materiality may be met in either of two ways. First, a misrepresentation is material if it would be likely to induce a reasonable person to manifest his assent. Second, it is material if the maker knows that for some special reason it is likely to induce the particular recipient to manifest his assent, There may be personal considerations that the recipient regards as important even though they would not be expected to affect others in his situation, and if the maker is aware of this the misrepresentation may be material even though it would not be expected to induce a reasonable person to make the proposed contract. One who preys upon another's known idiosyncrasies cannot complain if the contract is held voidable when he succeeds in what he is endeavoring to accomplish ... , Although a nonfraudulent misrepresentation that is not material does not make the contract voidable under the rules stated in this Chapter, the reCipient may have a claim to relief under other rules, such as those relating to breach of warranty." Restatement (Second) of Contracts § 162 cmt. C (1979).

misrepresentation ofsource. See PASSING OFF. negligent misrepresentation. (1888) A careless or inad­ vertent false statement in circumstances where care should have been taken. [Cases: Fraud C=:> 13(3).] misrepresentee. A person to whom a fact has been mis­ represented. misrepresenter. A person who misrepresents a fact to another. - Also spelled misrepresentor. Missile Defense Agency. A unit in the U.S. Department of Defense responsible for developing and deploying a missile-defense system capable of protecting the United States, its armed forces, and others from missile attack. Abbr. MDA. missilia (mi-sI-lee-<J), n. pl. [fro Latin mit/ere "to throw"] Roman law. Money that the praetors, consuls, or wealthy individuals throw as gifts to people on the street; largesse. missing-evidence rule. (198l) The doctrine that, when a party fails at trial to present evidence that the party controls and that would have been proper to present, the jury is entitled to infer that the evidence would have been unfavorable to that party. [Cases: Evidence 74.] missing person. 1. Someone whose whereabouts are unknown and, after a reasonable time, seem to be unascertainable. 2. Someone whose continuous and unexplained absence entitles the heirs to petition a court to declare the person dead and to divide up the person's property. See SEVEN-YEARS'-ABSENCE RULE. Cf. DISAPPEARED PERSON. [Cases: Death missing ship. Maritime law. A vessel that has been gone for an unreasonably long time, leading to the presump­ tion that it is lost at sea; esp. a vessel that has been gone longer than the average time it takes a vessel to make a similar voyage in the same season. missing-witness rule. (1961) The doctrine that, when a party fails at trial to present a witness who is available only to that party and whose testimony would have been admissible, the jury is entitled to infer that the witness's testimony would have been unfavorable to that party. [Cases: Criminal Law C=:>317; Evidence C=:> 77; Trial C=:>211.J missio in bona (mis[hJ-ee-oh in boh-n93(S).] 2. A mistake that is shared and relied on by both parties

to a contract. • A court will often revise or nullify a contract based on a mutual mistake about a material term. Also termed (in sense 2) common mistake. [Cases: Contracts (:::J93(5); Reformation ofInstru­ ments (;:::: 19.J "The term 'common mistake' is more usually, but less grammatically, referred to as 'mutual mistake'. Cheshire and Fifoot on Contract have made a heroic effort to intra· duce and establish the more correct term, and it does seem to be gaining ground. However, the beginner is warned that the term 'mutual mistake' is nearly always used by the Courts to mean what we here call 'common mistake'." P.S. Atiyah, An Introduction to the Law of Contract 190 n.7 (3d ed. 1981).

nonessential mistake. See unessential mistake. unessential mistake. (1928) Contracts. A mistake that does not relate to the nature of the contents of an agreement, but only to some external circumstance, so that the mistake has no effect on the validity of the agreement. Also termed inessential mistake; nonessential mistake; collateral mistake. [Cases: Con­ tracts unilateral mistake. (1885) A mistake by only one party to a contract. • A unilateral mistake is generally not as likely to be a ground for VOiding the contract as is a mutual mistake. [Cases: Contracts C::>93.] mistakenly induced revocation. See DEPENDENT RELA­ TIVE REVOCATION.

mistery (mis·t~r-ee). Hist. A business; a trade. Also spelled mystery. mistrial. (17c) 1. A trial that the judge brings to an end, without a determination on the merits, because of a procedural error or serious misconduct occurring during the proceedings. [Cases: Criminal Law G=>867; Federal Civil Procedure (;::::> 1951; Trial c";:=:} 18, 133.1, 304.] 2. A trial that ends inconclusively because the jury cannot agree on a verdict. - Also termed abortive trial. [Cases: Criminal Law (;::::;867.] misunderstanding. (Bc) 1. A flawed interpretation of meaning or significance. 2. A situation in which the words or acts of two people suggest assent, but one or both of them in fact intend something different from what the words or acts express. 3. A quarrel; an instance of usu. mild wrangling. misuse, n. (14c) 1. Products liability. A defense alleging that the plaintiff used the product in an improper, unintended, or unforeseeable manner. [Cases: Products Liability C:::c 182.] 2. Patents. The use of a patent either to improperly extend the granted monopoly to non­ patented goods or to violate antitrust laws. [Cases: Patents (:::J283(l).] misuser. (17c) An abuse of a right or office, as a result of which the person having the right might lose it . Cf. USER. [Cases: Officers and Public Employees (:::J64.] mitigate (mit-a-gayt), vb. (15c) To make less severe or intense . Cf.

mitigation, n. mitigatory (mit-~-g~­ tor-ee), adj. mitigating circumstance. See CIRCUMSTANCE. mitigation cost. See COST (1). mitigation-of-damages doctrine. (1978) The princi­ ple requiring a plaintiff, after an injury or breach of contract, to make reasonable efforts to alleviate the effects of the injury or breach.• If the defendant can show that the plaintiff failed to mitigate damages, the Also termed plaintiff's recovery may be reduced. avoidable-consequences doctrine. Cf. DOCTRINE OF CONSTRUCTIVE SERVICE (2). [Cases: Damages (:::J62.] mitigation of punishment. (18c) Criminal law. A reduc­ tion in punishment due to mitigating circumstances that reduce the criminal's level of culpability, such as the existence of no prior convictions. See mitigating circumstance under CIRCUMSTANCE. mitigator. A factor tending to show that a criminal defendant, though guilty, is less culpable than the act alone would indicate . Cf. AGGRAVATOR. [Cases: Sentencing and Punishment C=>54.] mitiori sensu. See IN MITIORI SENSU. mitter avant (mit- 1137.] mixed nuisance. See NUISANCE. mixed policy. See INSURANCE POLICY. mixed presumption. See PRESUMPTION. mixed property. See PROPERTY. mixed question. (lSc) L MIXED QUESTION OF LAW AND FACT. 2. An issue involving conflicts of foreign and domestic law. mixed question oflaw and fact. (1S05) An issue that is neither a pure question of fact nor a pure question of law.• Mixed questions of law and fact are typi­ cally resolved by juries. - Often shortened to mixed question. - Also termed mixed question offact and law. [Cases: Administrative Law and Procedure 781; Appeal and Error C=>S42(9); Criminal Law 735; Federal Courts Trial Cr~ 137.] "Many issues in a lawsuit involve elements of both law and fact. Whether these be referred to as mixed questions of law and fact, or legal inferences from the facts, or the application of law to the facts, there is substantial authority that they are not protected by the 'clearly erroneous' rule and are freely reviewable. This principle has been applied to antitrust violations, bankruptcy, contracts, copyright, taxation, and to other areas of the law." 9A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2589, at 608-11 (2d ed. 1995).

mixed tithes. See TITHE. mixed treaty. See TREATY (1). mixed trust. See TRUST. mixed war. See WAR. mixtion (miks-chan). Archaic. 1. The process of mixing products together so that they can no longer be sepa­ rated. 2. The product of mixing. mixtum imperium (miks-ti'lm im-peer-ee-am). [Latin] Rist. Mixed authority; mixed jurisdiction.• This term refers to the power of subordinate civil magistrates. M]OA. abbr. MOTION FOR JUDGMENT OF ACQUITTAL. MLA. abbr. MOTION FOR LEAVE TO APPEAL. MMBtu. Abbr. Oil & gas. One million British thermal units, one ofthe standard units for measuring natural gas. MMI. abbr. MAXIMUM MEDICAL IMPROVEMENT. M'Naghten rules. See MCNAGHTEN RULES. M'Naughten rules. See MCNAGHTEN RULES. M.O. abbr. MODUS OPERANDI. mobile goods. See GOODS. Mobile-Sierra doctrine. The principle that the Federal Energy Regulatory Commission may not grant a rate increase to a natural-gas producer unless the produc­ er's contract authorizes a rate increase, or unless the existing rate is so low that it may adversely affect the public interest (as by threatening the continued viabil­ ity of the public utility to continue its service). United

Gas Pipe Line Co. v. Mobile Gas Servo Corp., 350 U.S. 332,76 S.Ct. 373 (1956); Federal Power Comm'n v. Sierra Pac. Power Co., 350 D.S. 348, 76 S.Ct. 368 (1956). Also termed Sierra-Mobile doctrine. [Cases: Gas C=~ 14.4(1).] mobilia (moh-bil-ee-i'l), n. pI. [Latin "movables"] Roman law. Movable things .• The term primarily refers to inanimate objects but sometimes also refers to slaves and animals. mobilia sequuntur personam (moh-bil-ee-a si-kwdn­ tar pdr-soh-nam). [Latin] Int'llaw. Movables follow the person - Le., the law of the person.• This is the general principle that rights of ownership and transfer of movable property are determined by the law of the owner's domicile. [Cases: Property C=>6; Taxation 2211.] "The maxim mobilia sequuntur personam is the excep· tion rather than the rule, and is probably to be confined to certain special classes of general assignments such as marriage settlements and devolutions on death and bankruptcy." Handel v. S/atford, 1953 Q.B. 248, 257 (Eng. C.A.). "Under the influence of Savigny many Continental systems in the mid-nineteenth century led the way for Anglo-Amer­ ican law in limiting the operation of the doctnne of mobilia sequuntur personam to universal assignments of movables, adopting for particular assignments the single principle of the lex situs of the movable." R.H. Graveson, Conflict of Laws 457 (7th ed. 1974).

mock trial. (18c) 1. A fictitious trial organized to allow law students, or sometimes lawyers, to practice the techniques of trial advocacy. 2. A fictitious trial, arranged by a litigant's attorney, to assess trial strategy, to estimate the case's value or risk, and to evaluate the case's strengths and weaknesses .• In this procedure, people from the relevant jury pool are hired to sit as mock jurors who, after a condensed presentation of both sides, deliberate and reach a verdict (often while being observed by the participants behind a one-way glass). The jurors may later be asked specific ques­ tions about various arguments, techniques, and other issues. Because the mock jurors usu. do not know which side has hired them, their candid views are thought to be helpful in formulating trial strategies. Cf. MOOT COl:RT.

modal legacy. See LEGACY. mode. (l7c) A manner of doing something <mode of proceeding> <mode of process>. model act. (1931) A statute drafted by the National Conference of Com missioners on Uniform State Laws and proposed as gUideline legislation for the states to borrow from or adapt to suit their individual needs .• Examples of model acts include the Model Employment Termination Act and the Model Punitive Damages Act. Cf.

UNIFORM LAW; UNIFORM ACT.

Model Code of Professional Responsibility. A set of gUidelines for lawyers, organized in the form of canons, diSciplinary rules, and ethical considerations .• Pub­ lished by the ABA in 1969, this code has been replaced in most states by the Model Rules of Professional

Modus Tenendi Pariiamentum

1095

Conduct as the ethical standards by which lawyers are regulated and disciplined, although the Model Code continues to be used to interpret and apply the Model Rules. [Cases: Attorney and Client (;::::> 32(2).] model jury charge. See model jury instruction under JURY INSTRUCTION.

model jury instruction. See fURY INSTRUCTION. Model Marriage and Divorce Act. See UNIFORM MARRIAGE AND DIVORCE ACT.

Model Penal Code. A proposed criminal code drafted by the American Law Institute and used as the basis for criminal-law revision by many states. - Abbr. MPC. Model Penal Code test. See SUBSTANTIAL-CAPACITY TEST.

Model Putative Fathers Act. See UNIFORM AND UNKNOWN FATHERS ACT.

PUTATIVE

modification of drinking habits>. 3. Parliamentary law. A change in a motion that its mover initiates or accepts, usu. before the chair has stated the motion. _ The mover controls a motion only until the chair states the question, after which the motion belongs to the assembly and the mover cannot modify it without the assembly's permission. See request for permission to modify a motion under REQUEST. modification order. Family law. A post-divorce order that changes the terms ofchild support, custody, visita­ tion, or alimony. _ A modification order may be agreed to by the parties or may be ordered by the court. The party wishing to modify an existing order must show a material change in circumstances from the time when the order sought to be modified was entered. See CHANGE IN CIRCUMSTANCES. [Cases: Child Custody C'='661; Child Support (;:::)342; Divorce (;:::>245(3).J Modified Accelerated Cost Recovery System. See

Model Rules of Professional Conduct. A set of ethical ACCELERATED COST RECOVERY SYSTEM. guidelines for lawyers, organized in the form of 52 rules some mandatory, some discretionary modified-comparative-negligence doctrine. See together with explanatory comments. - Published by 50-PERCENT ReLE. the ABA in 1983, these rules have generally replaced modius (moh-dee- 32(2).] put the burden on the party whose pleading was being Model State Trademark Bill. A proposed statute intended traversed not only to prove the allegations of fact but to standardize trademark laws among the states. - The also to establish as correct the manner and form of the bill was first promulgated by the International Trade­ pleading. - Also termed manner and form. mark Association (then called the United States Trade­ modus (moh-d. - molest, vb. - molester, n. child molestation. (1951) Any indecent or sexual activity on, involving, or surrounding a child, usu. under the of 14. See Fed. R. Evid. 414(d). [Cases: Infants Molineux rule. New York law. The principle that evidence of prior crimes is inadmissible when offered to prove the defendant's bad character and to show that the defendant is therefore more likely than not to have committed the crime charged. - The evidence is admissible if offered to prove something other than

1096

criminal propensity, such as motive, identity, absence of mistake or accident, intent, or the existence of a common scheme or plan. The rule was first handed down in People v. Molineux, 61 N.E. 286 (N.Y. 1901). [Cases: Criminal Law C?369, 371.] moliturae (mol-i-t[y]uur-ee or -chuur-ee). fLaw Latin] Scots law. Tolls for grinding grain; multures. See CUM ASTRICTIS MULTURIS.

molliter manus imposuit (mol-;>-tdr man-;:lS im-poz-[y] oJ-wit). [Latin] Hist. He gently laid hands upon .• This phrase was used in actions of trespass and assault to justify a defendant's use of force as reasonable, as when it was necessary to keep the peace. monarchy. (14c) A government in which a single person rules, with powers varying from absolute dictatorship to the merely ceremonial. limited monarchy. A monarchical form ofgovernment in which the monarch's power is subject to constitu­ Also termed constitu­ tional or other restraints. tional monarchy. moneta (md-nee-td), n. [Latin] Money. monetagium (mon-;>-tay-jee-dm), n. [Law Latin "mintage"] Hist. l. The right to coin money; mintage. 2. A tribute paid by s tenant to persuade a lord not to change coinage. monetarism (mon-i-td-riz-;>m). An economic theory claiming that the money supply is the basic influence on the economy.• The theory was originated by Milton Friedman in the late 1960s. monetary, adj. 1. Of or relating to money <monetary value> <monetary damages>. 2. Financial <monetary services> <monetary investments>. monetary bequest. See pecuniary bequest under BEQUEST,

money. (14c) 1. The medium of exchange authorized or adopted by a government as part of its currency; esp. domestic currency . UCC § 1-201(24).2. Assets that can be easily converted to cash <demand deposits are money>. 3. Capital that is invested or traded as a commodity 4. (pl.) Funds; sums of money . Also spelled (in sense 4) monies. See MEDIUM OF EXCHANGE; LEGAL TENDER.

current money. Money that circulates throughout a country; currency. e-money. Money or a money substitute that is trans­ formed into information stored on a computer or computer chip so that it can be transferred over infor­ mation systems such as the Internet. Cf. e-check under CHECK. - Also termed digital cash; electronic cash; electronic currency; Internet scrip; on-line scrip. fiat money. Paper currency not backed by gold or silver. - Also termed flat money. hard money. 1. Coined money, in contrast to paper currency. 2. Cash.

lawful money. Money that is legal tender for the payment of debts. paper money. Paper documents that circulate as currency; bills drawn by a government against its own credit. real money. 1. Money that has metallic or other intrin­ sic value, as distinguished from paper currency, checks, and drafts. 2. Current cash, as opposed to money on account. money bequest. See pecuniary bequest under BEQUEST. money bill. See revenue bill under BILL (3). money broker. See BROKER. money changer. One whose primary business is exchang­ ing currencies. money claim. Hist. Under the English Judicature Act of 1875, money claimed as damages, as for breaches of contract and rent arrearages. money count. See COUNT. money demand. (1821) A claim for a fixed, liquidated sum, as opposed to a damage claim that must be assessed by a jury. [Cases: Damages (';:::,200.] moneyed capital. See CAPITAL. moneyed corporation. See CORPORATION. money had and received. See action for money had and received under ACTION (4). money judgment. See JUDGMENT. money land. Money held in a trust providing for its con­ version into land. money-laundering, n. (1974) The act of transferring illegally obtained money through legitimate people or accounts so that its original source cannot be traced. • Money-laundering is a federal crime. 18 USCA § 1956. It is also addressed by state governments, e.g., through the Uniform Money Services Act. Because some money-laundering is conducted across national borders, enforcement of money-laundering laws often requires international cooperation, fostered by nizations such as Interpol. [Cases; United States 34.] money made. A sheriff's return on a writ of execution signifying that the sum stated on the writ was collected. [Cases; Execution money market. See MARKET. money-market account. An interest-bearing account at a bank or other financial institution.• Such an account usu. pays interest competitive with money-market funds but allows a limited number of transactions per month. See money market under MARKET. money-market fund. See MUTUAL FUND. money order. (1802) A negotiable draft issued by an authorized entity (such as a bank, telegraph company, post office, etc.) to a purchaser, in lieu of a check to be used to pay a debt or otherwise transmit funds upon the credit of the issuer. [Cases; Postal Service (>:"J 18.]

money paid. See action for money paid under ACTION (4).

money-purchase plan. See EMPLOYEE BENEFIT PLAN. money scrivener. A money broker; one who obtains money for mortgages or other loans. money service business, n. A nonbank entity that provides mechanisms for people to make payments or to obtain currency or cash in exchange for payment instruments.• Money service businesses do not accept deposits or make loans. They include money transmit­ ters, payment instrument sellers, stored-value provid­ ers, check cashers, and currency exchangers. Also termed nonbank financial institution; nondepository provider offinancial services. money supply. 1he total amount ofmoney in circulation in the economy. See Ml: M2; M3. monger (mang-g;lr). Archaic. A seller of goods; a dealer <moneymonger>. monier (moh-nyair or m61.] municipal affairs. The matters relating to the local gov­ ernment of a municipality. [Cases: Municipal Corpo­ rations municipal aid. Financial or other assistance provided by a municipality to a private business, usu, to encour­ age it to relocate to the municipality. [Cases: Municipal Corporations (;::>872.] municipal attorney. See CITY ATTORNEY. municipal bond. See BOND (3). municipal charter. See CHARTER (2). municipal corporation. A city, town, or other local political entity formed by charter from the state and having the autonomous authority to administer the state's local affairs; esp., a public corporation created for political purposes and endowed with political powers to be exercised for the public good in the administration oflocal civil government. Also termed municipal­ ity. Cf. quaSi-corporation under CORPORATION. [Cases: Municipal Corporations (;::> 1.1.] municipal corporation de facto. A corporation rec­ ognized to exist, although it has not fully complied with statutory requirements, when there is (1) a valid law authorizing its incorporation, (2) a colorable and bona fide attempt to organize under that law, and (3) an assumption of powers conferred under that law. [Cases: Municipal Corporations (;::> 17.J municipal court. See COURT. municipal domicile. See DOMICILE. municipal election. See ELECTION (3). municipal function. 1he duties and responsibilities that a municipality owes its members. municipal government. See local government under GOVERNMENT.

municipality. (l8c) 1. MUNICIPAL CORPORATION. 2. The governing body of a municipal corporation, municipal judge. See rUDGE. municipal law. 1. The ordinances and other laws appli­ cable within a city, town, or other local governmental

municipal lien

entity. [Cases: Municipal Corporations 2. The internal law of a nation, as opposed to international law. municipal lien. See LIEN. municipal officer. See OPFICER (1). municipal ordinance. See ORDINANCE. municipal security. See municipal bond under BOND (3).

municipal utility district. See DISTRICT. municipal warrant. See WARRANT (2). municipium (myoo-na-sip-ee-am), n. [Latin "free town"] Roman law. A self-governing town; specif., any com­ munity allied with or conquered by Rome and allowed to maintain certain privileges (such as maintaining separate laws called leges municipales) . • The members of a municipium were also Roman citizens. PI. muni­ cipia (myoo-ni-sip-ee-a). muniment (myoo-n544.] serial murder. (1977) A murder in which a criminal kills one of many victims over time, often as part of a pattern in which the criminal targets victims who have some similar characteristics. Cf. mass murder. third-degree murder. (1933) A wrong that did not con­ stitute murder at common law.• Only a few states have added to their murder statutes a third degree of murder. The other states claSSify all murders in two degrees. Manslaughter is not a degree of the crime of murder, but instead is a distinct offense. - Also termed murder of the third degree; murder three. [Cases: Homicide C=:>548.) unintentional murder. 1. A killing for which malice is implied because the person acted with intent to cause serious physical injury or knew that the conduct was substantially certain to cause death or serious

mutual-agreement program

1115

physical injury. _ In some jurisdictions, this term is applied generally to several grades ofkillings without express intent. 2. See depraved-heart murder. 3. See felony murder. 4. See voluntary manslaughter under MANSLAUGHTER.

willful murder. (16c) The unlawful and intentional killing of another without excuse or mitigating cir­ cumstances. murder clause. A contract provision that imposes onerous - often unreasonable obligations on one party. - Murder clauses are usu. found in construc­ tion contracts. murdrum (m~r-dr~m). [Law Latin] Hist. 1. The secret killing of someone. 2. A fine against the tithing where the secret and unsolved homicide took place. "The readiness with which the Norman administrators seized on this Anglo-Saxon system was probably due to its effectiveness in collecting the murdrum, the murder fine. In ordinary cases of homicide, the whole district ~ except the kin of the suspect ~ would be zealous to bring the malefactor to Justice. But we can readily see that, if the person killed was a Norman, every effort would be made to shield the murderer. The Norman rulers had recourse to the device ... of imposing a group responsibility. The tithing within which the murdered Norman was found was compelled to pay a fine or to discover and surrender the homicide. The word murdrum is a word of uncertain ety­ mology, and has given us our term for willful homicide." Max Radin, Handbook of Anglo-American Legal Historv 175-76 (1936).

3. Murder; speci£., murder with malice aforethought. See MALICE AFORETHOUGHT. murorum operatio (myuur-or- 18.J muster roll. Maritime law. A shipmaster's account listing the name, age, national character, and quality ofevery employee on the ship. _ In wartime, it is used in ascer­ taining a ship's neutrality. [Cases: Shipping C=:>67.J must-pass bill. See BILL (3). mutation, n. A Significant and basic alteration; esp. in property law, the alteration of a thing's status, such as from separate property to community property. ­ mutate, vb. - mutational, adj. mutation of libel. Maritime law. An amendment to a complaint. See UBEL (3). mutatio nominis (myoo-tay-shee-oh nom--nis). [Latin] Roman law. Change ofname. - It was allowed provided that no prejudice was thereby caused to others. The related phrase mutato nomine (myoo-tay-toh nom-a­ nee) means "the name having been changed." mutatis mutandis (myoo-tay-tis myoo-tan-dis). [Latin] (16c) All necessary changes having been made; with the necessary changes <what was said regarding the first

contract applies mutatis mutandis to all later ones>. [Cases: Contracts (;:::'159.] mute, n. (17c) 1. A person who cannot speak. [Cases: Wit­ nesses C=:>229.] 2. A person (esp. a prisoner) who stands silent when required to answer or plead. - Formerly, if a prisoner stood mute, a jury was empaneled to deter­ mine whether the prisoner was intentionally mute or mute by an act of God. By the Criminal Law Act of 1827 (7 & 8 Geo. 4, ch. 28), ifa prisoner was mute by malice, the officer automatically entered a plea of not guilty and the trial proceeded. If adjudicated to be insane, the prisoner was kept in custody until the Crown deter­ mined what should be done.- Also termed (in sense 2) standing mute. mutilation, n. (16c) 1. The act or an instance of render­ ing a document legally ineffective by subtracting or altering - but not completely destroying an essen­ tial part through cutting, tearing, burning, or erasing. [Cases: Alteration ofInstruments (;:::·2.] 2. Criminal law. lhe act of cutting off or permanently damaging a body part, esp. an essential one. [Cases: Mayhem (;:::> 1.] See MAYHEM. - mutilate, vb. - mutilator, n. mutiny (myoo-t37; Military Justice (;:::>680,790.] "Both mutiny and failure to prevent, suppress, or report a mutiny are capital offenses .... The elements of mutiny are (1) creation of any violence or disturbance or acting in concert with others to refuse to obey orders (2) with the intent to usurp or override lawful military authority. One fails to prevent, suppress, or report mutiny when he does not take all reasonable means to overcome or report mutiny. Concert of action is not required for mutiny when the accused creates violence or disturbance." Charles A. Shan or & L. Lynn Hogue, Military Law in a Nutshell 197-98 (2d ed. 1996).

2. Loosely, any uprising against authority. - Also termed (in both senses) inciting revolt. mutinous, adj. Mutiny Act. Hist. An English statute enacted annually from 1689 to 1879 to prOVide for a standing army and to punish mutiny, desertion, and other military offenses. _ It was merged into the Army Discipline and Regula­ tion Act of 1879 (ch. 33). mutual, adj. (16c) 1. Generally, directed by each toward the other or others; reciprocal. [Cases: Contracts (;::: 55.] 2. (Of a condition, credit covenant, promise, etc.) reciprocally given, received, or exchanged. 3. (Of a right, etc.) belonging to two parties; common. [Cases: mutuality, n. Contracts (;:::, 10.] mutual account. See ACCOUNT. mutual affray. See MUTUAL COMBAT. mutual-agreement program. (1978) A prisoner-rehabil­ itation plan in which the prisoner agrees to take part in certain self-improvement activities to receive a definite parole date.

mutual assent. See ASSENT. mutual association. A mutually owned, cooperative savings and loan association, with the deposits being shares of the association .• A mutual association is not allowed to issue stock and is usu. regulated by the Office of Thrift Supervision, an agency of the U.S. Treasury Department. - See SAVINGS-AND-LOAN ASSOCIATION. [Cases: Building and Loan Associations C=::c 1.] mutual-benefit association. A fraternal or social orga­ nization that provides benefits for its members, usu. on an assessment basis. [Cases: Beneficial Associations C~ 1; Insurance C=::c 1237.] "In the absence of ... statutory definition, the question of the extent to which mutual benefit, fraternal beneficiary, and like associations or societies, are within the meaning of the insurance laws must depend upon the terms of the different statutes, and the various circumstances of each particular case .... Broadly speaking, when a company, society, or association, either voluntary or incorporated, and whether known as a relief, benevolent, or benefit society, or by some similar name, contracts for a consid· eration to pay a sum of money upon the happening of a certain contingency, and the prevalent purpose and nature of the organization is that of insurance, it will be regarded as an insurance company and its contracts as insurance contracts ...." 2A George j. Couch, Couch on Insurance § 20:2, at 11 (rev. 2d ed. 1984).

mutual-benefit insurance. Benefits provided by a mutual-benefit association upon the occurrence of a loss. [Cases: Insurance C=::c 1001, 1237.] mutual combat. (17c) A consensual fight on equal terms - arising from a moment of passion but not in self-defense - between two persons armed with deadly weapons .• A murder charge may be reduced to voluntary manslaughter if death occurred by mutual combat. - Also termed mutual affray. Cf. DUEL. [Cases: Criminal Law C=::c45.15; Homicide C=::c537.] mutual company. See COMPANY. mutual contract. See bilateral contract under CONTRACT.

mutual debts. See DEBT. mutual demands. (l7c) Countering demands between two parties at the same time . [Cases: Set-off and Counterclaim C=::c41.] mutual fund. (1934) 1. An investment company that invests its shareholders' money in a usu. diversified selection of securities. - Often shortened to fund. 2.

Loosely, a share in such a company.

balanced fund. A mutual fund that maintains a

balanced investment in stocks and bonds, investing a certain percentage in senior securities. bond fund. A mutual fund that invests primarily in specialized corporate bonds or municipal bonds. closed-end fund. A mutual fund having a fixed number of shares that are traded on a major securi­ ties exchange or an over-the-counter market. common-stock fund. A mutual fund that invests only in common stock.

dualfund. A closed-end mutual fund that invests in two classes of stock - stock that pays dividends and stock that increases in investment value without divi­ dends.• A dual fund combines characteristics of an income fund and a growth fund. - Also termed dual­ purpose fund; leverage fund; split fund. fully managed fund. A mutual fund whose policy allows reasonable discretion in trading securities in combination or quantity. global fund. A mutual fund that invests in stocks and bonds throughout the world, including the U.S. ­ Also termed world fund. Cf. single-country fund; international fund. growth fund. A mutual fund that typically invests in well-established companies whose earnings are expected to increase .• Growth funds usu. pay small dividends but offer the potential for large share-price increases. hedge fund. See HEDGE FUND. income fund. A mutual fund that typically invests in securities that consistently produce a steady income, such as bonds or dividend-paying stocks. indexfund. A mutual fund that invests in the stock of companies constituting a specific market index, such as Standard & Poor's 500 stocks, and thereby tracks the stock average. international fund. A mutual fund that invests in stocks and bonds of companies outside the U.S., but not those within. Cf. global fund; single-country fund. leverage fund. See dual fund. load fund. A mutual fund that charges a commission, usu. ranging from 4 to 9%, either when shares are pur­ chased (a front-end load) or when they are redeemed (a back-end load). money-market fund. A mutual fund that invests in low-risk government securities and short-term notes. no-load fund. A mutual fund that does not charge any sales commission (although it may charge fees to cover operating costs). open-endfund. A mutual fund that continually offers new shares and buys back existing shares on demand. • An open-end fund will continue to grow as more shareholders invest because it does not have a fixed number of shares outstanding. performance fund. A mutual fund characterized by an aggressive purchase of stocks expected to show near-term growth. regional fund. A mutual fund that concentrates its investments in a specific geographic area or a par­ ticular economic area. single-countryfund. A mutual fund that invests in an individual nation outside the U.S. Cf. global fund; international fund. splitfund. See dual fund.

mutuum

1117

utilityfund. A mutual fund that invests only in public­ utility securities. value fund. A mutual fund that invests in stocks that its manager believes to be priced below their true market value. vulture fund. An investment company that purchases bankrupt or insolvent companies to reorganize them in hopes of reselling them at a profit. world fund. See global fund. mutual-fund wrap account. See ACCOUNT. mutual insurance. See INSURANCE. mutual insurance company. See INSURANCE COMPANY. mutuality. (16c) The state of sharing or exchanging something; a reciprocation; an interchange <mutual­ ity of obligation>. [Cases: Contracts C:=> 10.] mutuality doctrine. (1926) The collateral-estoppel reqUirement that, to bar a party from relitigating an issue determined against that party in an earlier action, both parties must have been in privity with one another in the earlier proceeding. Also termed mutuality of parties. [Cases: Judgment 678.] mutuality of assent. See MEETING OF THE MINDS. mutuality of benefits. See RECIPROCITY (2). mutuality of contract. See MUTUALITY OF OBLIGA­ TION.

mutuality of debts. Bankruptcy. For purposes of setoff, the condition in which debts are owed between parties acting in the same capacity, even though the debts are not of the same character and did not arise out of the same transaction. [Cases: Bankruptcy C::)2674.] mutuality of estoppel. (1852) 'The collateral-estoppel principle that a judgment is not concluSively in favor of someone unless the opposite decision would also be conclusively against that person. [Cases: Judgment 625,666.] mutuality of obligation. (l838) The agreement of both parties to a contract to be bound in some way. - Also termed mutuality ofcontract. See mutual assent under ASSENT. [Cases: Contracts G~ 10.] "[The] so-called doctrine of 'mutuality of obligation' in bilateral contracts ... unfortunately has been the cause of no little confusion. This confusion is evident from the fact that, while it is commonly admitted there is such a doctrine, there is a lack of unanimity, both in the statement of it and in regard to its application. The most common mode of statement is: 'In a bilateral agreement both promises must be binding or neither is binding.' This statement is obviously ambiguous, since it does not indicate in what sense the promises must be binding. The fact is that it has been variously interpreted and applied by the courts with results that have sometimes been inconsistent with other well settled principles of the law of consideration. Usually it has been held to mean that a promise that is not legally obligatory cannot be consideration in spite of the fact that it may satisfy all the usual requirements of consideration. However, at times it has in effect been held to involve the requirement that the undertaking of the promise relied upon as a consideration must be reason­ ably commensurate with, or equivalent to, the undertaking of the promise which it supports, before it can constitute

consideration - a kind of doctrine of mutuality of under· taking." John Edward Murray Jr., Murrayon Contracts § 90, at 190-91 (2d ed. 1974). "The doctrine of mutuality of obligation is commonly expressed in the phrase that in a bilateral contract 'both parties must be bound or neither is bound.' But this phrase is over-generalization because the doctrine is not one of mutuality of obligation but rather one of mutuality of consideration. Phrasing the rule in terms of mutuality of obligation rather than in terms of consideration has led to so-called exceptions and judicial circumventions .... It has been suggested that the term 'mutuality of obliga­ tion' should be abandoned and we must agree in the light of the confusion that this term has engendered." John D. Calamari &Joseph M. Perillo. The Law of Contracts § 4-12, at 226 (3d ed. 1987).

mutuality of parties. See MUTUALITY DOCTRINE. mutuality ofremedy. (l8l9) The availability of a remedy, esp. equitable relief, to both parties to a transaction, sometimes required before either party can be granted specific performance. See SPECIFIC PERFORMAKCE. [Cases: Specific Performance mutual mistake. See MISTAKE. mutual promises. See PROMISE. mutual release. See RELEASE. mutual rescission. See RESCISSION (2). mutual savings bank. See BANK. mutual testament. See mutual will under WILL. mutual will. See WILL mutuant (myoo-choo-dnt). The provider of property in a mutuum. See MUTUUM. Cf. MUTUARY. mutua petitio (myoo-choo-2.J "'Nationality' is a term which has long been used to define the legal relationship between a state and a ship which is authorized by the state to fly its flag .... Discussions in the International Law Commission in 1951 reflected concern that the use of the term 'nationality' in reference to ships was misleading as it implied similarity to the term's use in defining the legal relationship between a state and its citizen. Nonetheless, the term has continued to be the one most often employed in describing the relationship between a ship and its flag state. It is important to realize, however, that in spite of their common names, the legal relationship ascribed to the nationality of ships does differ from that arising from the nationality of natural or juridical persons." Louis B. 50hn & Kristen Gustafson, The Law of the Sea in a Nutshell12 (1984).

Nationality Act. See IMMIGRATION AND NATIONALITY ACT.

nationality theory. The jurisdictional principle that citizens are subject to the laws of their country, no matter where the citizens are. [Cases: International LawC:::>7.] nationalization, n. (1847) 1. Ibe act of bringing an industry under governmental control or ownership. 10.16.] 2. The act of [Cases: International Law giving a person the status of a citizen. See NATURAL­ IZATION. [Cases: Aliens, Immigration, and Citizenship (;.":::>689-728.] nationalize, vb. (1809) 1. To bring (an industry) under governmental control or ownership. 2. To give (a person) the status of a citizen; NATURALIZE. National Labor Relations Act. A federal statute regu­ lating the relations between employers and employees and establishing the National Labor Relations Board. 29 USCA §§ 151-169.• The statute is also known as

National Labor Relations Board

the Wagner Act of 1935. It was amended by the Taft­ Hartley Act of 1947 and the Landrum-Griffin Act of 1959. Abbr. NLRA. Also termed Wagner Act. [Cases: Labor and Employment National Labor Relations Board. An independent five­ member federal board created to prevent and remedy unfair labor practices and to safeguard employees' rights to organize into labor unions. - The board hears complaints of unfair labor practices and issues orders that can be reviewed or enforced by a U.S. court of appeals. The agency was created by the National Labor Relations Act of 1935. 29 USCA § 153. Abbr. NLRB. - Often shortened to Labor Relations Board. [Cases: Labor and Employment C=' 1650.1 National Lawyers Guild. An association oflawyers, law students, and legal workers dedicated to promoting a left-wing political and social agenda. - Founded in 1937, it now comprises some 4,000 members. Cf. FED­ ERALIST SOCIETY.

National Marine Fisheries Service. - Abbr. NMFS. See NATIO:>IAL OCEANIC AND ATMOSPHERIC ADMINISTRA­ TION.

National Mediation Board. An independent federal board that mediates labor-management disputes in the airline and railroad industries and provides admin­ istrative and financial support in adjusting grievances in the railroad industry. - The agency was created by the Railway Labor Act of 1934 to prevent interrup­ tions in service. 45 USCA §§ 154-163. - Abbr. NMB. Cf. FEDERAL MEDIATION AND CONCILIATION SERVICE. [Cases: Labor and Employment national monument. (1879) An object or structure and the land on which it is situated, publicly proclaimed by the u.s. President to be of historic or scientific interest. See 16 USCA § 341. National Motor Vehicle Theft Act. See DYER ACT. National Oceanic and Atmospheric Administration. A unit in the u.s. Department of Commerce respon­ sible for monitoring the environment in order to make accurate and timely weather forecasts and to protect life, property, and the environment. - It was established in 1970 under Reorganization Plan No.4 of 1970 and operates through several agencies: the National Weather Service (NWS); the National Environmental Satellite, Data, and Information Service (NESDIS); the National Marine Fisheries Service (NMFS); the National Ocean Service (NOS); and the Office of Oceanic and Atmo­ spheric Research (OAR). It also maintains a fleet of ships and aircraft for research. - Abbr. NOAA. National Ocean Service. See NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION.

national of the United States. See NATIONAL. National Organ Transplant Act. A 1984 federal law banning the sale of human organs. 42 USCA §§ 273-274. - Abbr. NOTA. [Cases: Gifts national origin. (1880) The country in which a person was born, or from which the person's ancestors came. ­

1124

This term is used in several antidiscrimination statutes, including Title VII of the Civil Rights Act of 1964, which prohibits discrimination because of an individ­ ual's "race, color, religion, sex, or national origin." 42 USCA § 2000e-2. [Cases: Civil Rights C=' 1009,1107.] national park. (1868) A scenic, natural, historic, and recreational area owned bv the United States and set aside for permanent protection. - Yellowstone National Park was declared the first national park in 1872. See 16 USCA § la-L [Cases: United States C='57.] National Park Service. A unit in the U.S. Department of the Interior responsible for managing the nation's national parks, monuments, scenic parkways, pre­ serves, trails, river ways, seashores, lakeshores, rec­ reational areas, and historic sites commemorating movements, events, and personalities of America's past. - The Service was established in 1916. 16 USCA § 1. [Cases: United States National Priorities List. Environmental law. The Envi­ ronmental Protection Agency's list of the most serious uncontrolled or abandoned hazardous-waste sites that are identified for possible long-term remediation as Superfund sites. 40 CFR § 35.6015. Abbr. NPL. [Cases: Environmental Law C='436.] National Quotation Bureau. A company that publishes daily price quotations (pink sheets) of over-the-counter securities. National Railroad Passenger Corporation. A federally chartered corporation created by the Rail Passenger Service Act of 1970 to provide intercity rail passen­ ger service. _ The corporation owns or leases railroad stations and operates passenger trains over tracks that are almost entirely owned by others. - Abbr. NRPC. Usu. termed Amtrak. [Cases: Railroads (;:=>5.51.] National Reporter System. A series oflawbooks, pub­ lished by the West Group, containing every published appellate decision of the federal and state courts in the United States. - For federal courts, the system includes the Supreme Court Reporter, Federal Reporter, Federal Claims Reporter, Federal Supplement, Federal Rules Decisions, Bankruptcy Reporter, Military Justice Reporter, and Veterans Appeals Reporter. For state courts, the system includes the Atlantic Reporter, Cal­ ifornia Reporter, New York Supplement, North Eastern Reporter, North Western Reporter, Pacific Reporter, South Eastern Reporter, Southern Reporter, and South Western Reporter. National Response Center. Environmental law. A nationwide communication center located in \Vash­ ington, D.C., responSible for receiving, and relaying to appropriate federal officials, all notices of oil dis­ charges and other releases of hazardous substances. 40 CFR § 310.11. national river. See RIVER. National Science Foundation. An independent federal foundation that promotes progress in science and engi­ neering through grants, contracts, and other agree­ ments awarded to universities, colleges, academic

nativi de stipite

1125

consortia, and nonprofit and small-business institu­ tions.• It was created by the National Science Founda­ tion Act of 1950. - Abbr. NSF. National Security Agency. A unit in the U.S. Depart­ ment of Defense responsible for protecting U.S. infor­ mation systems as well as producing foreign intelligence information.• The agency uses code makers and code breakers. Abbr. NSA. [Cases: War and National Emergency ~48.1.] National Security Council. An agency in the Execu­ tive Office ofthe President responsible for advising the President on national-security matters .• It was created by the National Security Act of 1947. 50 USCA § 402. Abbr. NSC. national-security letter. A document that is issued by an FBI official, or by a senior official ofanother federal agency, and that functions as a subpoena requiring the recipient, usu. a business, to turn over specific business documents.• The Department of Justice provides guidelines for the issuance of a national-security letter, which is not typically reviewed by a court or magistrate. Federal law prohibits the letter's recipient from disclos­ ing the existence of the letter, except to an attorney. Abbr. NSL [Cases: War and National Emergency ~ 50.] national-security privilege. See state-secrets privilege under PRIVILEGE (3). national-service life insurance. See LIFE INSURANCE. National Stolen Property Act. A federal statute that makes it a crime to transport, transmit, or transfer in interstate or foreign commerce goods or money worth $5,000 or more if the person knows that the money or goods were obtained unlawfully. 18 USCA §§ 2311 et seq. Abbr. NSPA. [Cases: Receiving Stolen Goods ~1-4.]

national synod. See SYNOD. National Technical Information Service. See TECHNOL­ OGY ADMINISTRATION.

National Technical Institnte for the Deaf. A federally aided institute, located in Rochester, New York, respon­ sible for educating large numbers of deaf students on a college campus designed primarily for students who can hear. • Established by Congress in 1965, the insti­ tute is a part of the Rochester Institute for Technol­ ogy. Abbr. NTID. National Telecommunications and Information Administration. A unit in the U.S. Department of Commerce responsible for advising the President on telecommunications and information policy; conduct­ ing research through its Institute for Telecommunica­ tions Sciences; and making grants to support advanced infrastructures and to increase ownership by women and minorities. Abbr. NTlA. National Transportation Safety Board. An independent five-member federal board that investigates air, rail, water, highway, pipeline, and hazardous-waste acci­ dents; conducts studies; and makes recommendations

to government agencies, the transportation industry, and others on safety measures and practices.• The agency was created in 1966.49 USCA §§ 1101-1155. Abbr. NTSB. [Cases: Aviation ~'31.] national treatment. Intellectual property. The policy or practice of a country that accords the citizens of other countries the same intellectual-property protection as it gives its own citizens, with no formal treaty of reci­ procity required .• The principle of national treatment underlay the first international intellectual-property treaties in the 19th century, the Paris and Berne Con­ ventions' and is also embodied in the TRIPs Agree­ ment. Cf. RECIPROCITY; U:-1IVERSALITY. "The beauty of the principle of national treatment is that it allows countries the autonomy to develop and enforce their own laws, while meeting the demands for international protection. Effectively, national treatment is a mecha­ nism of international protection without harmonization." Lionel Bently & Brad Sherman, Intellectual Property Law 5 (2001).

national-treatment clause. A provision contained in some treaties, usu. commercial ones, according for­ eigners the same rights, in certain respects, as those accorded to nationals. [Cases: Treaties (::>8.) national union. See UNION. National Weather Service. See NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION.

nations, law of. See INTERNATIONAL LAW. nation-state. See NATION (1). natis et nascituris (nay-tis et nas-i-t[y)nur-is). [Latin] Hist. To children born and to be born.• This was a common destination used to convey an inheritance. native, n. (16c) 1. A person who is a citizen of a particular place, region, or nation by virtue of having been born there. 2. A person whose national origin derives from having been born within a particular place. 3. Loosely, a person born abroad whose parents are citizens of the nation and are not permanently residing abroad. 4. Loosely, a person or thing belonging to a group indige­ nous to a particular place .• The term Native American is sometimes shortened to native. [Cases: Indians ~ lOLl Native American law. The body of law dealing with American Indian tribes and their relationships to federal and state governments, private citizens, and each other. - Also termed American Indian law; Indian law. native-born, adj. 1. Born within the territorial jurisdic­ tion ofa country. 2. Born of parents who convey rights of citizenship to their offspring, regardless of the place of birth. native title. See aboriginal title (1) under TITLE (2). nativi conventionarii (nd-tI-vI kdn-ven-shee-d-nair­ ee-l), n. pl. [Law Latin] Hist. Villeins by contract. nativi de stipite (nd-tI-vI dee stip-d-tee), n. pl. [Law Latin] Hist. Villeins by birth. See NATIVUS; NATALE.

nativitas nativitas (n,,-tiv-,,-tas), n. [Law Latin] Rist. The servi­ tude or bondage of serfs. nativo habendo (n,,-tI-voh h,,-ben-doh), n. DE NATIVO HABENDO. nativus (nd-tI-vdS), n. [Law Latin] Rist. A person who is born a villein or serf. "Having seen what serfdom means, we may ask how men become serfs. The answer is that almost always the serf is a born serf; nativus and vii/anus were commonly used as interchangeable terms ...." 1 Frederick Pollock & Frederic W. Maitland, The History of English Law Before the Time of Edward 1422 (2d ed. 1898).

natural, adj. (14c) 1. In accord with the regular course of things in the universe and without accidental or purposeful interference . 2. Normal; proceeding from the regular character of a person or thing . 3. Brought about by nature as opposed to artificial means . 4. Inherent; not acquired or assumed . 5. Indigenous; native . 6. Of or relating to birth . [Cases: Children Out-of-Wedlock 262: Municipal Corporations ~"')773.1

natural affection. (16c) The love naturally existing between close relatives, such as parent and child. ­ Natural affection is not consideration for a contract. See CONSIDERATION (1); executory contract under CONTRACT. [Cases: Contracts . - Also termed natural and probable consequence. [Cases: Damages 386.] natural day. See DAY (2). natural death. See DEATH. natural-death act. (1977) A statute that allows a person to prepare a living will instructing a physician to withhold life-sustaining procedures ifthe person should become terminally ill. See ADVANCE DIRECTIVE; LIVING WILl.. [Cases: Health (;:='913.] natural domicile. See domicile of origin under DOMICILE. natural duty. See moral duty under DUTY (1). natural equity. See EQUITY (3). natural father. See biologicalfather under FATHER. natural flood channel. See CHANNEL. natural fool. Rist. A person who is mentally challenged from birth. See INCOMPETENCY. natural fruit. See FRUIT. natural gas. See DISTILLATE (1). natural guardian. See GUARDIAN. natural heir. See HEIR. naturaliafeudi (nach-d-ray-lee-" fyoo-dI). [Law Latin] Scots law. Those things that naturally belong to a feu grant. - The phrase included the grantor's warranty against eviction of the grantee. natural infancy. See INFANCY. natural interruption. See INTERRUPTION.

naturalis possessio (nach-d-ray-lis pd-zes[h]-ee-oh). See

possessio naturalis under POSSESSIO. naturalization. 06c) The granting of citizenship to a foreign-born person under statutory authority. Naturalization Clause. (1849) The constitutional provi­ sion stating that every person born or naturalized in the United States is a citizen of the United States and of the state of residence. U.S. Const. amend. XIV, § 1. See JUS SOLI. [Cases: Aliens, Immigration, and Citizen­ ship (;:='652, 678.] naturalization court. A court haVing jurisdiction to hear and decide naturalization petitions. - Naturalization courts were abolished as a result ofthe Immigration Act of 1990. Under current U.S. law, the Attorney General has the sole authority to naturalize citizens. But after a hearing before an immigration officer, an applicant may seek review ofthe denial of an application for nat­ uralization in the federal district court for the district in which the applicant resides. If an applicant is certi­ fied to be eligible for naturalization, the oath of alle­ giance may be administered by the Attorney General, a federal district court, or a state court of record. See oath ofallegiance under OATH. [Cases: Aliens, Immigration, and Citizenship

1127

nautae, caupones, stabularii

naturalize, vb. (l6c) To grant the rights, privileges, and natural premium. See PREMIUM (1). duties of citizenship to (one previously a noncitizen); to natural presumption. See PRESUMPTION. make (a noncitizen) a citizen under statutory author­ natural resource. (1870) 1. Any material from nature ity. [Cases: Aliens, Immigration, and Citizenship having potential economic value or providing for the 689-728.] naturalization, n. sustenance ofhfe, such as timber, minerals, oil, water, naturalized citizen. See CITIZEN. and wildlife. 2. Environmental features that serve a community's well-being or recreational interests, such natural justice. See JUSTICE (1). as parks. [Cases: Environmental Law C=' 13.J natural law. (I5c) 1. A physical law of nature . 2. A philosophical system of the U.S. Department of Agriculture responSible for pro­ legal and moral principles purportedly deriving from viding information and financial assistance to farmers a universalized conception of human nature or divine justice rather than from legislative or judicial action; , and ranchers for voluntary conservation programs .• moral law embodied in principles of right and wrong ; The Service was formerly known as the Soil Conserva­ <many ethical teachings are based on natural law>. ­ . tion Service. Abbr. NRCS. Also termed law ofnature; natural justice; lex aeterna; natural right. See RIGHT. eternal law; lex naturae; lex naturalae; divine law; jus natural servitude. See SERVITUDE (2). divinum;jus naturale; jus naturae; (in sense 2) norma­ natural succession. See SUCCESSION (2). tive jurisprudence; jure naturae. Cf. FUNDAMENTAL LAW; POSITIVE LAW; DIVINE LAW. natural watercourse. See WATERCOURSE. "Natural law, as it is revived today, seeks to organize the natural wear and tear. See WEAR AND TEAR. ideal element in law, to furnish a critique of old received ideals and give a basis for formulating new ones, and natural wrong. See moral wrong under WRONG. to yield a reasoned canon of values and a technique of natural year. See YEAR. applying it. I should prefer to call it philosophical juris­ prudence. But one can well sympathize with those who natura negotii (na-tyoor-d ni-goh-shee-r). [LatinJ Hist. would salvage the good will of the old name as an asset The nature of the transaction. of the science of law." Roscoe Pound, The Formative Era of American Law 29 (1938). nature. (l4c) 1. A fundamental quality that distinguishes one thing from another; the essence of something. 2. "It is true that when medieval writers spoke of natural law as being discoverable by reason, they meant that the best A wild condition, untouched by civilization. 3. A dis­ human reasoning could discover it, and not, of course, that position or personality of someone or something. 4. the results to which any and every individual's reasoning Something pure or true as distinguished from some­ led him was natural law. The foolish criticism of Jeremy thing artificial or contrived. 5. The basic instincts or Bentham: 'a great multitude of people are continually talking of the law of nature; and then they go on giving impulses of someone or something. 6. The elements of you their sentiments about what is right and what is wrong; the universe, such as mountains, plants, planets, and and these sentiments, you are to understand, are so many stars. chapters and sections of the law of nature', merely showed a contempt for a great conception which Bentham had not natus (nay-tas), adj. [Latin] Born; (of a child) alive. taken the trouble to understand." J.L. Brierly, The Law of nauclerus (naw-kleer-as), n. [Latin fro Greek naus "ship" Nations 20-21 (5th ed. 1955). + kieros "allotment"] Roman law. A shipmaster; a "[Nlatural law is often an idealization of the opposite to skipper. that which prevails. Where inequality or privilege exists, natural law demands its abolition." Morris R. Cohen, Reason naulage (naw-Iii), n. [Old French fro Law Latin naulagium and Law 96 (1961). "passage money"] The fare for passengers or goods trav­ natural liberty. See LIBERTY. eling by ship. See NAULUM. natural life. (ISc) A person's physical life span. naulum (naw-bm), n. [Latin fro Greek] Roman law. Fare; freights; a shipowner's fee for carrying people or goods natural monopoly, See MONOPOLY. from one place to another. natural monument. See MONUMENT. nauta (naw-ta), n. [Latin fro Greek naus "ship"] Roman natural mother. 1. See birth mother under MOTHER. 2. law. A sailor. See biological mother under MOTHER. nautae, caupones, stabularii (naw-tee, kaw-poh-neez, natural object. 1. A person likely to receive a portion stab-ya-Iair-ee-r). [Latin] Roman law. Carriers by sea, of another person's estate based on the nature and innkeepers, stablers .• The phrase was used in an edict circumstances of their relationship. - Also termed holding shippers, innkeepers, and stablers liable for natural object of bounty; natural object ofone's bounty; damages to goods entrusted to them for safekeeping natural object of testator's bounty. [Cases: Wills C=) (receptum). Members of this group were also vicari­ 50.] 2. See natural boundary under BOUNDARY. 3. See ously liable for the torts of their employees and slaves. natural monument under MONUMENT. 'The edict is in these terms: 'NAUTAE, CAUPONES, STABULARII, QUOD natural obligation. See OBLIGATION. CUJUSQUE SALVUM FORE RECEPERINT, NiSI RESTITUENT! IN EO$ jlJDlelVM DABO.' This rule, from its expediency, has been, with some varia­ natural person. See PERSON (1). tions, received into the law of Scotland. Persons of this natural possession. See POSSESSION. description are liable for their servants, or even for the acts

1128

nautical of guests and passengers; and the extent of the damage may be proved by the oath of the claimant." William Bell,

Bell's Dictionary and Digest of the Law of Scotland 737 (George Watson ed., 7th ed. 1890).

nautical, adj. (16c) Of or relating to ships or shipping, carriage by sea, or navigation. nautical assessor. A person skilled in maritime matters who is summoned in an admiralty case to assist the judge on points requiring special expertise. nautical mile. (1834) A measure of distance for air and sea navigation, equal to one minute of arc of a great circle of the earth. - Different measures have been used by different countries because the earth is not a perfect sphere. Since 1959, however, the United States has used an international measure for a nautical mile, set by the Hydrographic Bureau, equal to 6,076.11549 feet, or 1,852 meters. nauticum fenus (naw-ti-k~m fee-n~s), n. [Greek nautikon "nautical" + Latin fenus "interest"] Roman & civil law. A loan to finance the transport ofgoods by sea; specie, a loan on bottomry made to a transporter ofmerchan­ dise by ship. _ The loan is subject to an extremely high rate of interest because it does not have to be repaid unless the ship safely reaches its destination. The nauticum fenus is both a loan and marine insurance. The rate, originally unlimited because of the risks of sea travel, was eventually fixed at 12%. The money loaned is pecunia trajecticia (money conveyed overseas). Also spelled nauticum foenus. - Also termed fen us nauticum; nautica pecunia;foenus nauticum. NAV. abbr. NET ASSET VALUE. navagium (na-vay-jee-~m), n. [Latin "ship; voyage"] Hist. A tenant's duty to transport the lord's goods by ship. naval, adj. (15c) 1. Of or relating to ships or shipping. 2. Of or relating to a navy. See NAVY. naval law. A system of regulations governing naval forces. See CODE OF MILITARY rUSTICE. [Cases: Armed Services Military Justice C=>507.] navarch (nay-vahrk), n. [fro Greek naus "ship" + archos "chief"] Hist. A master of an armed ship. Also termed navarchus. Cf. NAVICULARIUS. navicularius (n~-vik-y~-lair-ee-ds), n. [Latin "ship­ owner"] Hist. A person engaged in the shipping business. navigable (nav-i-gd-bdl), adj. (ISc) 1. Capable of allowing vessels or vehicles to pass, and thereby usable for travel or commerce . [Cases: Navigable Waters navigable in fact, adj. Naturally usable for travel or commerce in the present condition. - A stream is naVigable in fact if, in its natural and ordinary state, it can be used for travel or commerce. For admiralty jurisdiction, the water must be capable of being used as a route in interstate or international commerce in customary modes of travel. [Cases: NaVigable Waters

2. Capable of being steered .

Also termed boatable. See NAVIGABLE WATER.

navigable airspace. See AIRSPACE. navigable sea. Int'llaw. The ocean waters divided into three zones of control among nations: (1) the inland waters, which are near a nation's shores and over which a nation has complete sovereignty; (2) territorial waters, which are measured from the seaward edge of the inland waters, over which a nation has extensive control but over which innocent parties must be allowed to travel to other nations; and (3) the high seas, which are international waters not subject to the domain of any Single nation. [Cases: International Law navigable water. 1. At early common law, any body of water affected by the ebb and flow of the tide. - This test was first adopted in England because most of England's in-fact navigable waters are influenced by the tide, unlike the large inland rivers that are capable of sup­ porting commerce in the United States. Also termed boatable water. [Cases: Navigable Waters "In addition to its bearing on admiralty jurisdictional inqui­ ries, the navigable waters issue comes up in cases involv­ Ing the scope of Congress's regulatory authority under the commerce clause; the validity and interpretation of a variety of statutes and regulations administered by the Coast Guard; the powers of the Corps of Engineers over waterways, dams, marinas, etc., under the Rivers & Harbors Act and other statutes; the Federal Power Commission's authority to inspect and license electricity-generating dams; the existence and exercise of a servitude of naviga­ tion, which affects both public access to waterways on private land and governmental regulatory authority over such waters; and disputes over the ownership of stream beds. The foregoing is not an exhaustive listing. Well over a thousand federal statutes use the term 'navigable waters.'" David W. Robertson, Steven F. Friedell & Michael F. Sturley, Admiralty and Maritime Law in the United States 53 n.l (2001).

2. (usu. pl.) A body of water that is used, or typically can be used, as a highway for commerce with ordinary modes of trade and travel on water. - Under the Commerce Clause, Congress has broad jurisdiction over all navigable waters of the United States. [Cases: Navigable Waters navigable water ofthe United States. Navigable water that alone - or in combination with other waters ­ forms a continuous highway for commerce with other states or foreign countries. navigate, lIb. (16c) 1. To travel or sail in a vessel on water . [Cases: CollisionC::='3, 90, 103.] 2. To steer . 3. To make way through, on, or about some­ thing . navigation. (16c) 1. The act of sailing vessels on water. 2. The process and business of directing the course of a vessel from one place to another. See RULES OF NAVI­ GATION.

navigation easement. See EASEMENT. navigatiou servitude. See SERVITUDE (2). navis (nay-vis), 11. [Latin] A ship; a vessel.

necessaries

1129

navy. (I4c) 1. A fleet of ships. 2. The military sea force of a country, including its collective ships and its corps of officers and enlisted personnel; esp. (usu. cap.), the division of the U.S. armed services responsible primar­ ily for seagoing forces .• The U.S. Constitution gives Congress the power to establish a navy and make laws governing the naval forces. U.S. Canst. art. I, § 8, cl. 13-14. [Cases: Armed Services (;:='4.J Navy Department. A division of the Department of Defense that oversees the operation and efficiency ofthe Navy, including the Marine Corps component (and the U.S. Coast Guard when operating as a naval service). • Established in 1798, the Department is headed by the Secretary of the Navy, who is appointed by the President and reports to the Secretary of Defense. ­ Also termed Department of the Navy. [Cases: Armed Services navy yard. (l8c) The land on which ships are built for the U.S. Navy and the contiguous waters that are necessary to float the ships. NAWL. abbr. NATIONAL ASSOCIATION OF WOMEN LAWYERS.

nay, n. Parliamentary law. A negative vote. nazeranna (naz-;:;-ran-d). Hist. The amount that a person paid to the government as an acknowledgment for public office or a grant of public lands. N.B. abbr. [Latin nota bene] (17c) Note well; take notice - used in documents to call attention to some­ thing important. NBA. abbr. NATIONAL BAR ASSOCIATION. NBF!. abbr. Nonbank financial institution. See MONEY SERVICE BUSINESS.

NCA. abbr. NATIONAL CEMETERY ADMINISTRATION. NCBL. abbr. NATIONAL CONFERENCE OF BLACK LAW­ YERS.

NCCUSL (n. 2. Almost; close in degree . 3. Closely tied by blood <my brother is a near relative>. 4. Familiar; intimate . nearly closed-ended claim. See PATENT CLAIM. near money. See current asset under ASSET. neat, adj. (bef. 12c) 1. Clean; pure. 2. Free from extrane­ ousmatter. neat weight. See net weight under WEIGH T. ne baila pas (nd bay-I;:; pah), n. [Law French "he or she did not deliver") In an action for detinue, a defendant's plea denying the receipt of the property in question. necation (ni-kay-sh;:;n), n. [ff. Latin necare "to kill"] Hist. The act of killing. necessaries. (l4c) 1. Things that are indispensable to living . - The term includes whatever is reasonably needed for subsistence, health, comfort, and education, considering the person's age, station in life, and medical condition, but it excludes (1) anything purely ornamental, (2) anything solely for pleasure, (3) what the person is already supplied with, (4) anything that concerns someone's estate or business as opposed to personal needs, and (5) borrowed money. Under the common law, a husband was required to pay debts incurred by his wife or children for necessaries. Beginning in the late 19608, most states began to change their statutes regarding the obligation to proVide neces­ saries to include both husband and wife. See DOCTRINE OF NECESSARIES; FAMILY-EXPENSE STATUTE. [Cases; Husband and Wife C=' 19.J "Things may be of a useful character, but the quality or quantity supplied may take them out of the character of necessaries. Elementary textbooks might be a necessary to a student of law, but not a rare edition of 'Littleton's Tenures,' or eight or ten copies of 'Stephen's Commentar­ ies.' Necessaries also vary according to the station in life of the infant or his peculiar circumstances at the time. The quality of clothing suitable to an Eton boy would be unnecessary for a telegraph clerk; the medical attendance

necessarily included offense

1130

and diet required by an invalid would be unnecessary to one in ordinary health. It does not follow therefore that because a thing is of a useful class, a judge is bound to allow ajury to say whether or no it is a necessary." William R. Anson, Principles of the Law of Contract 172 (Arthur L Corbin ed., 3d Am. ed. 1919).

necessitas culpabi/is (nJ-ses-i-tas kJI-pay-bJ-lis). [Latin "culpable necessity"] Hist. An unfortunate necessity that, while essentially excusing the act done under its compulsion, does not necessarily relieve the actor from blame.

3. Maritime law. Supplies and services needed for the maintenance and operation of a vessel, including repairs, tow fees, and the costs ofloading and unload­ ing.• Authorized provision of necessaries automati­ cally confers a maritime lien to the provider under the Federal Maritime Lien Act, 42 USCA § 971-93. [Cases: Maritime Liens

"And as to the necessity which excuses a man who kills another se defendendo lord Bacon entitles it necessitas cul­ pabilis . ... For the law intends that the quarrel or assault arose from some unknown wrong ... and since in quarrels both parties may be, and usually are, in some fault; and it scarce can be tried who was originally in the wrong; the law will not hold the survivor entirely gUiltless. But it is clear, in the other case, that where I kill a thief that breaks into my house, the original default can never be upon my side." 4 William Blackstone, Commentaries on the Laws of England 186-87 (1769).

"The case law is clear that 'necessaries' does not mean absolutely indispensable; rather, the term refers to what is reasonably needed in the ship's business:· Thomas J. Schoenbaum, Admiralty and Maritime Law 256 (1987).

necessarily included offense. See lesser included offense under OFFENSE (1). necessarius (ne-sJ-sair-ee-Js), adj. [Latin] 1. Necessary; essential. 2. Unavoidable; obligatory; compelling. necessary and proper, adj. (16c) Being appropriate and well adapted to fulfilling an objective. Necessary and Proper Clause. (1926) The clause of the U.S. Constitution permitting Congress to make laws "necessary and proper" for the execution of its enu­ merated powers. U.S. Const. art. I, § 8, cl. 18.• The Supreme Court has broadly interpreted this clause to grant Congress the implied power to enact any law rea­ sonably designed to achieve an express constitutional power. McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819). Also termed Basket Clause; CoeffiCient Clause; Elastic Clause; Sweeping Clause. [Cases: United States necessary damages. See general damages under DAMAGES.

necessary deposit. See DEPOSIT (5). necessary diligence. See DILIGENCE. necessary domicile. See DOMICILE. necessary implication. See IMPLICATION. necessary improvement. See IMPROVEMENT. necessary inference. (I7c) A conclusion that is unavoid­ able if the premise on which it is based is taken to be true. necessary intromission. See INTROMISSION. necessary party. See PARTY (2). necessary repair. (16c) An improvement to property that is both needed to prevent deterioration and proper under the circumstances. necessary way. See easement by necessity under EASEMENT.

necessitas (nJ-ses-i-tas), n. [Latin] Roman law. 1. Neces­ sity. 2. A force or influence that compels an unwilling person to act. • The term refers to a lack of free will to do a legal act, as opposed to libera valuntas ("free will").

necessitate juris (n,,-ses-i-tay-tee joor-is). [Latin] Hist. By necessity oflaw.• That phrase appeared in refer­ ence to acts necessarily arising from the effect ofa legal rule. necessities. (14c) 1. Indispensable things ofany kind. 2. NECESSARIES (1). necessities oflife. See NECESSARIES (1). necessitous, adj. (17c) Living in a state of extreme want; hard up. necessitous circumstances. (17c) The situation of one who is very poor; extreme want. necessitudo (m-ses-i"t[y]oo-doh), n. [Latin "need"] Hist. 1. An obligation. 2. A close connection or relationship between persons, such as a family relationship. necessity. 1. Criminal law. A justification defense for a person who acts in an emergency that he or she did not create and who commits a harm that is less severe than the harm that would have occurred but for the person's actions .• For example, a mountain climber lost in a blizzard can assert necessity as a defense to theft of food and blankets from another's cabin. - Also termed choice ofevils; duress ofcircumstances; lesser­ evils defense. See lesser-evils defense under DEFENSE (1). [Cases: Criminal Law (;:::c38.] 2. Torts. A privilege that may relieve a person from liability for trespass or conversion if that person, having no alternative, harms another's property in an effort to protect life or health. "In some cases even damage intentionally done may not involve the defendant in liability when he is acting under necessity to prevent a greater evil. The preCise limits of the defence are not clear, for it has affinities with certain other defences, such as act of God, self-help, duress, or inevi­ table accident. It is distinguishable from self-defence on the ground that this presupposes that the plaintiff is prima facie a wrongdoer: the defence of necessity contemplates the infliction of harm on an innocent plaintiff. The defence, if it exists, enables a defendant to escape liability for the intentional interference with the security of another's person or property on the ground that the acts complained of were necessary to prevent greater damage to the com­ monwealth or to another or to the defendant himself, or to their or his property. The use of the term necessity serves to conceal the fact that the defendant always has a chOice between two evils. This is what distinguishes the defence of necessity from that of impossibility." R.FV Heuston, Salmond on the Law of Torts 493 (17th ed. 1977).

neexeat

1131

manifest necessity. (17c) A sudden and overwhelming

nec manifestum (nek man-i-fes-t. 4. Archaic. The power of veto . 3. To transfer (an instrument) by delivery or indorsement, whereby the transferee takes the instrument for value, in good faith, and without notice of conflicting title claims or defenses <Jones negotiated the check at the neighborhood bank>. [Cases: Bills and Notes (;::::c 176, 208.] negotiated agreement. A settlement that disputing parties reach between themselves, usu. with the help of their attorneys, but without benefit of formal medi­ ation. - Also termed negotiated settlement. [Cases: Compromise and Settlement negotiated market. See MARKET. negotiated offering. See OFFERING. negotiated plea. See PLEA (1). negotiating bank. See BANK. negotiation, n. (16c) 1. A consensual bargaining process in which the parties attempt to reach agreement on a disputed or potentially disputed matter.• Negotia­ tion usu. involves complete autonomy for the parties involved, without the intervention of third parties. [Cases: Contracts ('::::>25.] "Negotiation, we may say, ought strictly to be viewed simply as a means to an end; it is the road the parties must travel to arrive at their goal of mutually satisfactory settlement. But like other means, negotiation is easily converted into an end in itself; it readily becomes a game played for its own sake and a game played with so little reserve by those taken up with it that they will sacrifice their own ultimate interests in order to win it." Lon L. Fuller, Anatomy of the Law 128 (1968).

ne injuste vexes

1137

2. (usu. pl.) Dealings conducted between two or more parties for the purpose of reaching an understanding. 3. The transfer of an instrument by delivery or indorse­ ment whereby the transferee takes it for value, in good faith, and without notice of conflicting title claims or defenses. See HOLDER IN DUE COURSE. [Cases: Bills and Notes 176,208.] negotiate, vb. - negotiable, adj. - negotiability, n. due negotiation. The transfer of a negotiable document of title so that the transferee takes it free of certain claims enforceable against the transferor.• This is the good-faith-purchase exception to the doctrine of derivative title. VCC §§ 7-501(4); 7-502(1). [Cases: Warehousemen e=:·15.] negotiation letter of credit. See LETTER OF CREDIT. negotiorum gestio (ni-goh-shee-or-. It is used in not release"] A plaintiffs reply to a defendant's plea of the British House of Commons. - Abbr. nem. con.; release as a defense to liability in a case. n.c.d. Also termed nemine dissentiente. Cf. NEMINE DISSENTIENTE. nerve-center test. A method courts sometimes use to determine the location of a company's principal place nem. dis. abbr. NEMINE DISSENTIENTE. of business by examining where the company's central nemine dissentiente (nem-i-nee di-sen-shee-en-tee). [fro decision-making authority lies .• Factors include the Latin nemo "nobody" + dissentio "dissents"] Without locations where the corporate officers, directors, and opposition or dissent; NEMINE CONTRADICENTE. • This (sometimes) shareholders reside, and where they direct phrase is used in the British House of Lords. - Abbr. and control the corporation's activities. [Cases: Corpo­ nem dis.; n.d. Cf. NEMINE CONTRADICENTE. rations Federal Courts C=300.J nemo (nee-moh), n. [Latin] No one; no man .• This term abbr. National Environmental Satellite, Data, NESDIS. is the first word of many Latin maxims, such as nemo and Information Service. See NATIONAL OCEANIC AND est supra leges ("no one is above the law"). ATMOSPHERIC ADMINISTRATION. ne mutuato amore invicem spoliarentur (nee myoo­ net, n. (lSc) 1. An amount of money remaining after a choo-ay-toh 860.] net worth. See WORTH. net-worth method. The procedure the Internal Revenue Service uses to determine the taxable income of a taxpayer who does not keep adequate records .• The change in net worth for the year determines the taxpay­ er's gross income, after taking into account nontaxable receipts and nondeductible expenses. [Cases: Internal Revenue ~-:>4530.] net yield. See YIELD. ne unques (nee ;)ng-kweez). [Law French] Never. ne unques accouple (nee ;)ng-kweez 100(1).] new-business rule. The principle precluding an award new ruling. (1931) Criminal procedure. A Supreme of damages for lost profits to a business with no recent Court ruling not dictated by precedent existing when record of profitability, because the damages would be the defendant's conviction became final and thus not too speculative. [Cases: Damages (;::>40(1), 190.] applicable retroactively to habeas cases .• For example, new cause of action. See CAUSE OF ACTION. when the Court in Ford v. Wainwright, 477 U.S. 399, 106 S.Ct. 2595 (1986), ruled that the Eighth Amend­ new-contract dispute. See major dispute under DIS­ ment prohibits execution of insane prisoners, this new PUTE. ruling was nonretroactive because it departed so widely new court commitment. See COMMITMENT. from prior doctrine. Teague v. Lane, 489 U.S. 288, 109 new debtor. See DEBTOR. S.Ct. 1060 (1989). See HABEAS CORPUS. [Cases: Courts (~.)100(1).1 new-debtor syndrome. Conduct showing a debtor's bad faith in filing for bankruptcy, as a result of which New Rules. See HILARY RULES. the court may dismiss the bankruptcy petition .• An new series. See N.S. example is the debtor's formation of a corporation, newsman's privilege. See journalist's privilege (1) under immediately before the bankruptcy filing, solely to take PRIVILEGE (3). advantage of the bankruptcy laws. [Cases: Bankruptcy (;=>2252.1, 3503.J newspaper. (17c) A publication for general circulation, usu. in sheet form, appearing at regular intervals, usu. new drug. See DRUG. daily or weekly, and containing matters of general new-for-old. 1. Marine insurance. In adjusting a partial public interest, such as current events. marine-insurance loss, the principle that old materi­ daily newspaper. A newspaper customarily published als apply toward payment of the new, so that the old five to seven days every week. Often shortened to material's value is deducted from the total repair daily. expenses, and then from that balance one-third of the cost of repairs (one-third of the new materials for the legal newspaper. A newspaper containing matters of old on the balance) is deducted and charged against legal interest including summaries of cases, legal the insured shipowner. - Also termed deduction for advertisements, legislative or regulatory changes, new. [Cases: Insurance e::-~'2244.]2. The principle that and local bankruptcy notices. [Cases: Newspapers a party whose property has been damaged is entitled to recover only the amount necessary to restore the newspaper ofgeneral circulation. (1838) A newspaper property to the condition it was in before the damage, that contains news and information of interest to the instead of acquiring a new item to replace one that was general public, rather than to a particular segment, old and depreciated. [Cases: Damages 103.] and that is available to the public within a certain geo­ New Inn. Hist. English law. One of the Inns of Chancery graphic area. - Legal notices (such as a class-action (collegiate houses) in which law students were placed notice) are often reqUired by law to be published in before entering the Inns of Court.• This practice con­ a newspaper of general circulation. [Cases: Newspa­ tinued until approximately 1650, when the buildings pers (::::::>3(5).] began to be used only by barristers and solicitors. See "The phrase 'newspaper of general circulation' is a term INNS OF CHANCERY. Cf. INNS OF COURT. of art in most states and does not necessarily mean the newspaper best calculated to reach interested persons." new issue. See ISSUE (2). Ann Taylor Schwing, Open Meeting Laws § 5.28, at 190-91 new-loan fee. See MORTGAGE DISCOUNT. (2d ed. 2000).

official newspaper. A newspaper designated to contain all the public notices, resolves, acts, and advertise­ ments of a state or municipal legislative body. [Cases: Newspapers 1-7.] newspaper prospectus. See PROSPECTUS. new style. The modern system for ordering time accord­ ing to the Gregorian method, introduced by Pope Gregory XIII in 1582 and adopted in England and the American colonies in 1752.• Because the Julian calendar year was slightly longer than the astronomi­ cal year, the vernal equinox over time had been dis­ placed by ten days. Pope Gregory reformed the calendar by announcing that October 5, 1582 would be called October 15. And, while generally retaining a leap year for years divisible by 4, he skipped leap years in years divisible by 100 (such as 1800 and 1900), but retained leap years for years divisible by 400 (such as 2000). Thus, the years 2000, 2004, 2008, etc. are leap years, but 2100 is not. - Abbr. n.s. Also termed Gregorian calendar. Cf. OLD STYLE.

new trial. See TRIAL. new-use claim. See PATENT CLAIM. new-use invention. See INVENTION. new value. See VALUE (2). new-value defense. See DEFENSE (1). new works. See WORKS. New York interest. See Boston interest under INTEREST (3).

New York standard clause. See

MORTGAGE-LOSS

CLAUSE.

New York Stock Exchange. An association of member firms that handle the purchase and sale of securities both for themselves and for customers .• This exchange, the dominant one in the United States, trades in only large companies having at least one million outstand­ ing shares. Abbr. NYSE. [Cases: Exchanges C-=:> 1-15; Securities Regulation C=:40.l0-40.l6.j New York Supplement. A set ofregional lawbooks, part of the West Group's National Reporter System, con­ taining every published appellate decision from inter­ mediate and lower courts of record in New York, from 1888 to date .• The first series ran from 1888 to 1937; the second series is the current one. - Abbr. N.Y.S.; N'y.S.zd.

New York Times malice. See actual malice (2) under MALICE.

New York Times rule. A commonsense rule of ethical conduct holding that one should not do anything arguably newsworthy - in public or in private that one would mind having reported on the front page of a major newspaper.• In various communities, a local newspaper is substituted for the Times. Also termed New York Times test; New York Times v. Sullivan rule. See actual malice (Z) under MALICE.

I

nexi (nek-sI), n. pl. [Latin] Roman law. Debtors given in bondage to creditors until their debts have been paid. SeeNExuM. next devisee. See DEVISEE. next eventual estate. See ESTATE (1). next friend. (l6c) A person who appears in a lawsuit to act for the benefit of an incompetent or minor plain­ tiff, but who is not a party to the lawsuit and is not appointed as a guardian. - Also termed prochein ami. Cf. guardian ad litem under GUARDIAN. [Cases: Infants C=>76; Mental Health C=485.J next-in, first-out. A method of inventory valuation (but not a generally accepted accounting principle) whereby the cost of goods is based on their replacement cost rather than their actual cost. - Abbr. NIFO. Cf. FIRST­ IN, FIRST-OUT; LAST-IN, FIRST-OUT.

next of kin. (18c) 1. The person or persons most closely related to a decedent by blood or affinity. Cf. RELATIVE. [Cases: Descent and Distribution C=)ZO-43; Wills C=> 508.] 2. An intestate's heirs - that is, the person or persons entitled to inherit personal property from a decedent who has not left a wilL See HEIR. next presentation. See PRESENTATION. nexum (nek-sam), n. [Latin] Roman law. A transaction or practice ofearly Roman law under which a debtor, upon a failure to repay the debt, could be seized and held in bondage until the debt was repaid .• This practice was allowed in very early Roman law. "Nexum. This highly controversial matter will be briefly dealt with as nexum had long been obsolete in classical law. Little is really known of it: it has been doubted whether there ever was such an institution. No text tells us that there was a contract called nexum .... But we have texts which speak of nexum as creative of obligation ... and many literary texts dealing with debtors who were nexi, so that it may be taken as certain that there was such a transaction ... which in some way reduced debtors to a sort of slavery, that great hardships resulted and that a I. Poetelia . .. practically ended this state of things, presum­ ably by requiring an actual judgment before seizure. The effect was not to abolish nexum, but, by depriving it of its chief value, the power of seizure ... to leave it with no advantages to counterbalance its clumsiness, so that it went out of use." W.W. Buckland, A Text·Book of Roman Law from Augustus to Justinian 429-30 (Peter Stein ed., 3d ed. 1963).

nexus, n. (l7c) 1. A connection or link, often a causal one . PI. nexuses; nexus. 2. Roman law. (ital.) In very early times, a debtor given in bondage to creditors until the debts have been paid. PI. nexi. See NEXUM. nexus rea lis (nek-sas ree-ay-lis). [Latin "a real fetter") Scots law. An encumbrance to property, such as a ser­ vitude. nexus test. (1975) The standard by which a private person's act is considered state action - and may give rise to liability for Violating someone's constitutional rights if the conduct is so closely related to the gov­ ernment's conduct that the choice to undertake it may fairly be said to be that of the state .• While similar to

nihil

1143

the symbiotic-relationship test, the nexus test focuses on the particular act complained of, instead of on the overall relationship of the parties. Still, some courts use the terms and analyses interchangeably. - Also termed close-nexus test. Cf. SYMBIOTIC-RELATIONSHIP TEST. See JOINT PARTICIPATION; STATE-COMPULSION TEST. [Cases: Civil Rights C= 1326(4, 7).] "The complaining party must ... show that there is a suf­ ficiently close nexus between the State and the chal­ lenged action of the regulated entity so that the action of the latter may be fairly treated as that of the State itself. lhe purpose of this requirement is to assure that constitutional standards are invoked only when it can be said that the State is responsible for the specific conduct of which the plaintiff complains .... [O]ur precedents indicate that a State normally can be held responsible for a private decision only when it has exercised coercive power or has provided such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the State." Blum v. Yaretsky, 457 U.S. 991, 1004, 102 S.Ct. 2777, 2786 (1982). NGO. abbr.

NONGOVERNMENTAL ORGANIZATION.

NGRI. See not guilty by reason of insanity under

NOT

GUILTY.

NHTSA. abbr.

NATIONAL HIGHWAY TRAFFIC SAFETY

ADMINISTRATION.

niehil (nieh-dl), n. [Old French nichil fr. Latin nihil "nothing"] Hist. English law. A debt owed to the Exche­ quer's office but nihiled by sheriffs as nonleviable.• Once a year, an officer of the Clerk ofNichils enrolled these amounts and sent them to the treasurer's remem­ brancer's office from which process was issued for their recovery. Both offices were abolished in 1833. - Also spelled nichill; nichel. nichil, vb. (Of a sheriff) to make return that a debt is worthless, because the debtor either cannot be found or is unable to pay. Nickerson letter. In New York City, a document issued by the Board of Education offering to pay the tuition of a disabled child who has been admitted to a state­ approved private school and whose educational needs cannot be met in a public school. • Nickerson letters are named for Judge Eugene P. Nickerson, who presided over the class-action suit that led to their creation. See Jose P. v. Ambach, 669 F.2d 865 (2d Cir. 1982); see also Jose P. v. Ambach, 557 F. Supp. 1230 (E.D.N.Y. 1983). [Cases: Schools 148(2.1), 155.5(1).] nickname, n. (15c) 1. A shortened version of a person's name . niece. (14c) The daughter of a person's brother or sister; sometimes understood to include the daughter of a person's brother-in-law or sister-in-law.• This term is extended in some wills to include a grandniece. Cf. NEPHEW.

half niece. The daughter of one's half brother or half sister. NIED. abbr.

KEGLIGENT INFLlCTIOK OF EMOTIONAL

DISTRESS.

nient (nee-ent). [Law French] Not; nothing. nient culpable (nee-ent bl-pd-bdl), n. [Law French] Hist. A general plea of "not guilty" in a tort or criminal action. 'When the prisoner hath thus pleaded not gUilty, non cui· pabilis, or nient culpable; which was formerly used to be abbreviated upon the minutes, thus, 'non (or nient) cui.' the clerk of the assise, or clerk of the arraigns, on behalf of the crown replies, that the prisoner is guilty, and that he is ready to prove him so." 4 William Blackstone, Com· mentaries on the Laws of England 333 (l769).

nient dedire (nee-ent dd-deer), vb. [Law French] Hist. To deny nothing; to be subject to a default judgment.

nient Ie fait (nee-ent Id fay). [Law French] Hist. Not the deed.• This term was the earlier version of non est factum. See NON EST FACTUM. nient seisi (nee-ent see-zee), n. [Law French "not seised"] Hist. The general denial in a writ to recover an annuity. NIFL. abbr. NATIONAL INSTI1TTE FOR LITERACY. NIFO (m-foh). abbr. NEXT·IN, FIRST-OUT. night. (bef. 12c) 1. The time from sunset to sunrise. 2. Darkness; the time when a person's face is not discern­ ible.• This definition was used in the common-law definition of certain offenses, such as burglary.lCases: Burglary ''The definition of a burglar, as given by Sir Edward Coke, is, 'he that by night breaketh and entereth into a mansion· house, with intent to commit a felony.' ... The time must be by night, and not by day; for in the daytime there is no burglary .... As to what is reckoned night, and what day, for this purpose anciently the day was accounted to begin only at sunrising, and to end immediately upon sunset; but the better opinion seems to be, that if there be daylight ... enough, begun or left, to discern a man's face withal, it is no burglary. But this does not extend to moonlight; for then many midnight burglaries would go unpunished: and besides, the malignity of the offence does not so properly arise from its being done in the dark, as at the dead of night when all the creation, except beasts of prey, are at rest; when sleep has disarmed the owner, and rendered his castle defenceless." 4 William Blackstone, Commentaries on the Laws of England 224 (1769).

3. Thirty minutes after sunset and thirty minutes before sunrise, or a similar definition as set forth by statute, as in a statute requiring specific authorization for night searches. 4. Evening. - Also termed nighttime. Cf. DAY.

nightwalker. 1. Hist. A person who suspiciously wanders about at night and who might disturb the peace.• Nightwalking was an example of a "common" offense requiring no specific facts to be asserted in the indict­ ment. 2. A prostitute who walks the streets at night; streetwalker. [Cases: Prostitution C~~ 10.] 3. A sleep­ walker.

nihil. See NIHIL EST.

nihil capiat per breve

nihil capiat per breve (m-hil kap-ee-;lt p;lr bree-vee or breev), n. [Latin "Let him take nothing by his writ"] A judgment against the plaintiff in an action at bar or in abatement. Also termed nihil capiat per billam ("let him take nothing by his bill"). nihil dicit (m-hil dI-sit), n. [Latin "he says nothing"] 1. The failure of a defendant to answer a lawsuit. [Cases: Judgment C=:> 106.] 2. See nil dicit default judgment under DEFAULT JUDGMENT. nihil dicit default judgment. See nil dicit default judgment under DEFAULT JUDGMENT. nihil est (m-hil est). [Latin "there is nothing"] A form of return by a sheriff or constable who was unable to serve a writ because nothing was found to levy on. Often shortened to nihil. Cf. NULLA BONA. nihil habet (m-hil hay-b<Jt). [Latin "he has nothing"] A form of return by a sheriff or constable who was unable to serve a scire facias or other writ on the defendant. See SCIRE FACIAS. nihilism (m-;ll-iz-;}m or nee-). (1812) 1. A doctrine maintaining that there is no rational justification for moral principles and that there is no objective truth. 2. The view that traditional beliefs are unfounded and that life is meaningless and useless. 3. A theory that the existing economic, social, or political institutions should be destroyed, regardless of the result, because of the basic undesirabilitv of those institutions .• This theory, featured by Ivan' Turgenev in his 1861 novel Fathers and Sons, was popular among Russian extrem­ ists until the collapse of the czarist government. nihilist, n. A person who advocates nihilism. See NIHILISM. nihil novit (m-hil noh-vit). [Law Latin] Scots law. He knew nothing .• The phrase appeared in reference to a defendant's oath denying any knowledge of the matter in issue. "[AJ defender may swear that he knows nothing of the matter referred, and so obtain absolvitor; but such an answer would not avail any defender in regard to a factum proprium. In regard to such a matter, an answer of nihil novitwould, in the general case, be regarded as simply an evasion, and be treated as an admission of the debt." John Trayner, Trayner's Latin Maxims 387 (4th ed. 1894).

nikah. Islamic law. A prenuptial contract, witnessed by at least two men, recording the parties' mutual agree­ ment to marry, the husband's promise to give his wife a certain sum ofmoney or property, and pOSSibly other terms about the parties' rights in and expectations from the marriage.• The contract may be enforceable under general contract-law principles. Also termed nikah nama. Cf. MAHR. nil (nil). [Latin] (16c) Nothing.• This word is a con­ tracted form of nihil. See NIHIL EST. nil debet (nil deh-;}t). [Latin "he owes nothing"] Hist. A general denial in a debt action on a simple contract. "The proper general issue in debt on simple contracts and statutes is 'nil debet,' which is a formal denial of the debt. It denies not only the existence of any contract, but under it any matters in excuse or in discharge may also be

1144 shown." Benjamin J. Shipman, Handbook of Common· Law Pleading § 184, at 327 (Henry Winthrop Ballantine ed., 3d ed. 1923).

nil dicit default judgment. See DEFAULT JUDGMENT, nil habuit in tenementis (nil hab-yoo-it in ten-'4542.j NINJA loan. See LOAN. Ninth Amendment. The constitutional amendment, ratified with the Bill of Rights in 1791, providing that rights listed in the Constitution must not be construed in a way that denies or disparages unlisted rights, which are retained by the people. [Cases: Constitutional Law C=:>1070.] nisi (nI-sI), ad). [Latin "unless"] (18c) (Of a court's ex parte ruling or grant of relief) haVing validity unless the adversely affected party appears and shows cause why it should be withdrawn . See decree nisi under DECREE. [Cases: Motions nisi aliud convenerit (m-sl ay-Iee-81.] no actus reus (noh ak-t597; Federal Civil Procedure (;='2142.1.] "Since judgment as a matter of law deprives the party opposing the motion of a determination of the facts by a jury, it should be granted cautiously and sparingly. Never­ theless. the federal courts do not follow the rule that a scin· tilla of evidence is enough to create an issue for the jury. The question is not whether there is literally no evidence upon which the jury properly could find a verdict for that party." 9A Charles Alan Wright & Arthur Miller, Federal Practice and Procedure § 2524, at 252-54 (2d ed. 1995).

2. Evidence that has no value in an attempt to prove a matter in issue . no-eyewitness rule. (1956) Torts. The largely defunct principle that if no direct evidence shows what a dead person did to avoid an accident, the jury may infer that the person acted with ordinary care for his or her own safety. - In a jurisdiction where the rule persists, a plaintiff in a survival or wrongful-death action can assert the rule to counter a defense of contributory neg­ ligence. [Cases: Death ~58(1).] no-fault, adj. (1967) Of or relating to a claim that is adjudicated without any determination that a party is

nomen transcripticium

1147

blameworthy <no-fault divorce>. [Cases: Divorce

12.]

no-fault auto insurance. See INSURANCE. no-fault divorce. See DIVORCE. no funds. An indorsement marked on a check when there are insufficient funds in the account to cover the check. no-further-representation clause. A contractual provi­ sion, usu. in a settlement agreement, prohibiting the plaintiff's attorney from representing future clients who have the same or a similar claim against the defen­ dant. _ Such a clause is thought to be void as against public policy. "If your standard settlement papers include a clause pro· hibiting opposing counsel from representing future clients with the same claim, you're violating ethics rules. Typically a defendant's tool, this provision ~ known as a no·further· representation clause ~ is popular in class action and mass product·liability settlements. But a little·known ethics rule prohibits lawyers from agreeing, or even offering to agree, to a restriction on an attorney's right to practice law." Leslie A. Gordon, Prohibited Provisions: No·further·Representation Clauses May Be Advantageous, but They're Also Unethical, 91 ABAJ. 18, 18 (Apr. 2005).

no goods. See NULLA BONA.

NOIBN. abbr. NOT OTHERWISE INDEXED BY NAME.

no-knock search. See SEARCH.

no-knock search warrant. See SEARCH WARRANT.

NOL. See net operating loss under LOSS.

Nolan Act. Hist. Patents. A statute, passed after World

War I, that extended the U.S. patenting deadlines for citizens of former enemy nations. - A similar measure, the Boykin Act, was passed after World War II. nolens volens (noh-Ienz voh-lenz), adv. & adj. [Latin] (16c) Willing or unwilling <nolens volens, the school district must comply with the court's injunction>. no-limit order. See ORDER (8). nolissement (nd-lis-mahn), n. [French] French law. The chartering of a ship; AFFREIGHTMENT. nolition (noh-lish-dn). (17c) 1he absence of volition; unwillingness. nolle prosequi (nahl-ee prahs-d-kwI), n. [Latin "not to wish to prosecute"] (17c) 1. A legal notice that a lawsuit or prosecution has been abandoned. [Cases: Pretrial Procedure C=>511.] 2. A docket entry showing that the plaintiff or the prosecution has abandoned the action. - Often shortened to nolle. [Cases: Criminal Law C=>303.5-303.35.] "In America the term [nolle prosequi] bears the same meaning as in England, with one exception. The attorney· general has not the same discretion with which English law invests him. Although in some States the prosecuting officer may enter a nolle prosequi at his discretion, in others the leave of the court must be obtained." 17 Encyclopaedia Britannica 546 (9th ed. 1907). "Nolle prosequi is a formal entry on the record by the prosecuting officer by which he declares that he will not prosecute the case further, either as to some of the counts of the indictment, or as to part of a divisible count, or

as to some of the persons accused. or altogether. It is a judicial determination in favor of accused and against his conViction, but it is not an acquittal, nor is it equivalent to a pardon." 22A c.J.S. Criminal Law § 419, at 1 (1989).

nolle prosequi (nahl-ee prahs-a-kwI), vb. (1875) To abandon (a suit or prosecution); to have (a case) dis­ missed by a nolle prosequi . Often shortened to nolle pros; nol-pros; nol-pro. [Cases: Criminal Law C=> 303.5-303.35; Pretrial Procedure C=>50l.l no-load fund. See MUTUAL FUND. nolo contendere (noh-loh kan-ten-dd-ree). [Latin "1 do not wish to contend"] (1829) NO CONTEST. - Often shortened to nolo. [Cases: Criminal Law nolo plea, See PLEA (1). no man's land. Labor law. The lack of clear jurisdiction between a state government and the federal govern­ ment over labor disputes. - This term was common in the 1950s, but its use has declined as later laws have clarified jurisdictional issues. NOM clause. abbr. NO-ORAL-MODIFICATION CLAUSE. nomen (noh-men or -m,m), n. [Latin]l. Roman law. A personal name. _ A Roman citizen generally had three names: a praenomen ("first name"), a nomen ("the name of the family group"), and cognomen ("a surname"). 2. Hist. A person's first name. 3. More broadly, any name.

P!. nomina. See AGNOMEN.

nomen collectivum (noh-men kol-"k-tl-vam). [Latin] A

collective name; a name of a class of things. nomen generale (noh-men jen-a-ray-lee). [Latinl A general name; a genus. nomen generalissimum (noh-men jen-a-r"-lis-i-m,,m). [Law Latin] A name with the most general meaning. "Nomen generalissimum. A very general name: a compre' hensive term. Such are the terms crime, demand, draft, estate, goods, grant, heir, house, instrument, interest, land. merchandise, obligation, offense." William C. Anderson, A Dictionary of Law 711 (1889).

nomen juris (noh-men joor-is). [Latin] A legal name or designation. nomen universitatis (noh-men yoo-ni-v"r-s,,-tay-tis). [Latin] Hist. The name of the whole together. 'Thus the name Barony is, in our law, a nomen universitatis, for it includes not only the lands over which the rights of barony extend, but also the rights competent to the owner of the barony themselves." John Trayner, Travner's Latin Maxims 390 (4th ed. 1894).

nomen transcripticium (noh-men tran-skrip-tish­ ee-am). [Latin "entry (in an account) transferred"] Roman law. A creditor's entry of a money debt into a new account (expensilatio) after closing another account, thereby creating, with the debtor's permission, a literal contract from an existing obligation, which mayor may not have been enforceable. PI. nomina transcripticia. 'The subject will, perhaps, become clearer by examples: ... A has in the past had dealings by way of sale, exchange, etc., with B, of which an account appears in his codex showing a balance against B for 500 aurei. A, with B's

no-merit brief consent, closes this account by a statement on the opposite page (contrary to fact) that B has paid the aurei ... and opens a new account with the statement (contrary to strict fact) that he has advanced to B the sum of 500 aurei. Hence the expensi!atio represents a nomen transcripticium; a nomen (debt) has been transferred from one account to another .... In effect the old contracts between A and B have been novated, i.e. extinguished, one single obligation having been substituted in their place; obViously a course which offered many advantages to both parties, as it sim· plified the accounts, and saved disputes about the previous transactions." R.W. Leage, Roman Private Law 317-18 (CH. Zieglered., 2d ed. 1930).

no-merit brief. See Anders brief under BR I EF. nomina debitorum (nahm-;:l-n;:l deb-i-tor-;:lm). [Latin "entries (in a ledger) ofnames of debtors"] Roman law. Records of debt See NOMEN TRANSCRIPTICIUM. nominal (nahm-. [Cases: nonclergyable, adj. 1. Hist. (Of an offense) punishable i Rape without benefit of clergy. - At one time, an offender nonconsent. (1844) 1. Lack of voluntary agreement. 2. who qualified for benefit of clergy could escape trial . Criminal law. In the law of rape, the refusal to engage in the secular courts regardless of the crime. The i willingly in sexual intercourse. See CONSENT. [Cases: benefit was applied so broadly by the end of the 16th , RapeC=8.J century that Parliament declared certain crimes, such I non constat (non kon-stat). [Latin "it is not settled"] It is as murder, robbery, arson, and piracy, nonclergyable. not certain or agreed. - 'lbe phrase is generally used to Over time, more crimes and misdemeanors were added state that some conclusion does not necessarily follow to the list until the benefit was finally abolished in the although it might appear on its face to follow. C[ NON 19th century. 2. Archaic. (Of a person) not eligible to SEQUITUR. claim benefit of clergy. See BENEFIT OF CLERGY (1). "Non Constat .... Words frequently used, particularly in noncode state. Hist. A state that, at a given time, had not argument, to express dissatisfaction with the conclusions of the other party: as, it was moved in arrest of judgment procedurally merged law and equity, so that equity was that the declaration was not good, because non constat still administered as a separate system. - The term was whether AS was seventeen years of age when the action current primarily in the early to mid-20th century. ­ was commenced." 3 John Bouvier, Bouvier's Law Dictionary Also termed common-law state. Cf. CODE STATE. 2355 (8th ed. 1914). noncombatant, adj. (1826) 1. Not serving in a fighting nonconstitutional, adj. (1879) Of or relating to some capacity <noncombatant personnel>. 2. Not designed legal basis or principle other than those of the u.s. Con­ for combat <noncombatant vehicle>. stitution or a state constitution . 2. (Of an instrument or note) inca­ pable of transferring by indorsement or delivery. Cf. NEGOTIABLE. [Cases: Bills and Notes C-:::: 144.J nonnegotiable bill of lading. See straight bill oflading under BILL OF LADING. nonnegotiable document of title. See DOCUMENT OF TITLE. non numeratae pecuniae (non n(yJoo-me-ray-tee pi­ kyoo-nee-ee). [Latin] Hist. (Defense) of money not paid. non obstante (non ahb-stan-tee or . [Cases: Wills (;:=>4.] 2. Of or relating to the property so disposed <nonprobate assets>. See nonprobate asset under ASSET. nonprobate asset. See ASSET. nonprobate property. See nonprobate asset under ASSET. non procedendo ad assisam (non proh-s;)-den-doh ad ;:I-SI-zdm). See DE NON PROCEDENDO AD ASSISAM. non procedendo ad assisam rege inconsulto (non proh­ sd-den-doh ad d-SI-Zdm ree-jee in-k. Cf.

USER (1).

non usurpavit (non yoo-s;}r-pay-vit). [Latin "he has not usurped"] A defendant's denial of an alleged usurpa­ tion of an office or franchise. non utendo (non yoo-ten-do). [Latin) Roman & Scots law. By nonuse. - Certain rights (such as some servi­ tudes) could be lost through neglect of use. non valentia agere (non v;}-len-shee- 191.20.]

note, n. (17c) 1. A written promise by one party (the maker) to pay money to another party (the payee) or to bearer. • A note is a two-party negotiable instrument, unlike a draft (which is a three-party instrument). ­ Also termed promissory note. Cf. DRAFT (1). [Cases: Bills and Notes accommodation note. A note that an accommodat­ ing party has signed and thereby assumed secondary liability for; ACCOMMODATION PAPER. [Cases: Bills and Notes C:::)49, approved indorsed note. A note indorsed by a person other than the maker to provide additional security. balloon note. A note requiring small periodic payments but a very large final payment. • The periodic payments usu. cover only interest, while the final payment (the balloon payment) represents the entire principal. banker's note. A promissory note given by a private banker or an unincorporated banking institution. banknote. See BANKNOTE. blue note. A note that maintains a life-insurance policy in effect until the note becomes due. [Cases: Insur­ ance C=>2020, 2027.J bought note. A written memorandum of a sale deliv­ ered to the buyer by the broker responsible for the sale. circular note. See LETTER OF CREDIT. coal note. His/. A promissory note written according to a statute that required payment for coal out of any vessel in the port of London to be in cash or by prom­ issory note containing the words "value received in coal." • Noncompliance with the statute resulted in a fine of £ 100.

cognovit note. See COGNOVIT NOTE.

collateral note. See secured note.

coupon note. A note with attached interest coupons

that the holder may present for payment as each coupon matures.

demand note. A note payable whenever the creditor wants to be paid. See call loan under LOAN. Bills and Notes C=O 129(3).] executed note. A note that has been Signed and deliv­ ered. [Cases: Bills and Notes ~54-62.]

floating-rate note. A note carrying a variable interest rate that is periodically adjusted within a predeter­ mined range, usu. every six months, in relation to an index, such as Treasury bill rates. Also termed floater. [Cases: Bills and Notes 125; Interest 32.]

hand note. A note that is secured by a collateral note. installment note. A note payable at regular intervals. Also termed serial note. inverse-floating-rate note. A note structured in such a way that its interest rate moves in the opposite direc­ tion from the underlying index (such as the London Interbank Offer Rate) .• Many such notes are investments because if interest rates rise, the ties lose their value and their coupon ""'lllJlll':~ Also termed inverse floater. [Cases: Interest

joint and several note. A note for which multiple makers are jointly and severally liable for repayment, meaning that the payee may legally look to all the makers, or anyone of them, for payment ofthe entire debt. See joint and several liability under LIABILITY. [Cases: Bills and Notes ~ 120.] joint note. A note for which multiple makers are jOintly, but not severally, liable for repayment, meaning that the payee must legally look to all the makers together for payment of the debt. See joint liability under LIA­ BILITY. [Cases: Bills and Notes (;:::; 120.] mortgage note. A note evidencing a loan for which real property has been offered as security. [Cases: Mort­ gages~14.]

negotiable note. See NEGOTIABLE INSTRUMENT. nonrecourse note. A note that may be satisfied upon default only by means of the collateral securing the note, not by the debtor's other assets. Cf. recourse note. [Cases: Bills and Notes Secured Transactions (;:::;227,240.)

note ofhand. See promissory note. post note. See time note. premium note. A promissory note given by an insured to an insurance company for part or all of the premium. promissory note. (18c) An unconditional written promise, signed by the maker, to pay absolutely and in any event a certain sum of money either to, or to the order of, the bearer or a designated person. Also

1163

termed noie of hand. [Cases: Bills and Notes 28-53.) recourse note. A note that may be satisfied upon default by pursuing the debtor's other assets in addition to the collateral securing the note. Cf. nonrecourse note. [Cases: Secured Transactions C=>227, 240.) reissuable note. A note that may again be put into cir­ culation after having once been paid. renewal note. A note that continues an obligation that was due under a prior note. [Cases: Bills and Notes C:::> 138, 141.) sale note. A broker's memorandum on the terms of a sale. given to the buyer and seller. savings note. A short-term, interest-bearing paper issued by a bank or the U.S. government. secured note. A note backed by a pledge of real or personal property as collateral. Also termed colla teral note. self-canceling installment note. A debt obligation that is automatically extinguished at the creditor's death.• Any remaining balance on the note becomes uncollectible. Self-canceling notes are typically used in estate planning. - Abbr. SCIN. [Cases: Internal Revenue (::::-'4159(7).] serial note. See installment note. sold note. A written memorandum of sale delivered to the seller by the broker responsible for the sale, and usu. outlining the terms of the sale. See CONFIRMA­ TION SLIP.

stock note. A note that is secured by securities. such as stocks or bonds. tax-anticipation note. A short-term obligation issued by state or local governments to finance current expenditures and that usu. matures once the local government receives individual and corporate tax payments. - Abbr. TAN. [Cases: Municipal Corpo­ rations C=>908.] time note. A note payable only at a specified time and not on demand. - Also termed post note. [Cases: Bills and Notes 129.] treasury note. See TREASURY NOTE. unsecured note. A note not backed by collateral. 2. A scholarly legal essay shorter than an article and restricted in scope, explaining or criticizing a par­ ticular set of cases or a general area of the law, and usu. written by a law student for publication in a law review. - Also termed comment; lawnote. Cf. ANNOTA­ TION. 3. A minute or memorandum intended for later reference; MEMORANDUM (1). broker's note. A memorandum, usu. one authorizing a broker to act as a principal's agent, that is prepared by the broker and a copy given to the principal. [Cases: Brokers 12.] note, vb. (13c) 1. To observe carefully or with particu­ larity . 2. To put down in writing . 3. Archaic. To brand . See NOTA. note broker. See BROKER. note of a fine. Hist. English law. A step in the judicial process for conveying land, consisting of a chirogra­ pher's brief of the proceedings before the documents of conveyance are engrossed. Also termed abstract ofafine. See FINE (1). note of allowance. English law. A master's note, upon receiving a party's memorandum of an error oflaw in a case, allowing error to be asserted. note of hand. See promissory note under NOTE (1). PI. notes of hand. note ofprotest. A notary's preliminary memo, to be for­ malized at a later time, stating that a negotiable instru­ ment was neither paid nor accepted upon presentment. See PROTEST. [Cases: Bills and Notes (::::-"408.J note payable. See account payable under ACCOUNT. note receivable. See account receivable under ACCOUNT.

no-term lease. Oil & gas. A mineral lease with a drilling­ delay rental clause that allows the lessee to extend the primary term indefinitely by paying delay rentals .• No-term leases were common at the end of the 19th century. Some courts refused to enforce them on the ground that they created a mere estate at will, termi­ nable at the will ofeither the lessor or the lessee. Other courts upheld them, but with the stipulation that the lessee had an obligation to either test or release the lease within a reasonable time. [Cases: Mines and Minerals C=>73.5,78.1(3).] note verbal (noht vilr-bdl). Int'llaw. An unSigned dip­ lomatic note, usu. written in the third person, that sometimes accompanies a diplomatic message or note of protest to further explain the country's position or to request certain action. - Also spelled note verbale (vair-bahl). not-for-profit corporation. See nonprofit corporation under CORPORATION. not found. Words placed on a bill ofindictment, meaning that the grand jury has insufficient evidence to support a true bill. See IGNORAMUS; NO BILL. Cf. TRUE BILL. not guilty. (15c) 1. A defendant's plea denying the crime charged. [Cases: Criminal Law C=>299.] 2. A jury verdict acquitting the defendant because the prosecu­ tion failed to prove the defendant's guilt beyond a rea­ sonable doubt. Cf. INNOCENT. notguilty by reason ofinsanity. (1844) 1. A not -guilty verdict, based on mental illness, that usu. does not release the defendant but instead results in com­ mitment to a mental institution. [Cases: Criminal Law (::::-;47; Homicide C=>817.) 2. A criminal defen­ dant's plea of not guilty that is based on the insanity defense. - Abbr. NGRI. Also termed not guilty on the ground ofinsanity. See INSANITY DEFENSE. [Cases: Criminal LawC:::>286.5.J

not-guilty plea

3. Common-law pleading. A defendant's plea denying both an act of trespass alleged in a plaintiff's declara­ tion and the plaintiff's right to possess the property at issue. "In trespass, whether to person or property, the general issue is 'not guilty.' It operates in the first place as a denial that the defendant committed the act of trespass alleged, to wit, the application of force to the plaintiff's person, the entry on his land, or the taking or damages of his goods. It also denies the plaintiff's possession, title, or right of possession of the land or goods." Benjamin J Shipman, Handbook of Common-Law Pleading § 170, at 307-08 (Henry Winthrop Ballantine ed., 3d ed. 1923).

not guilty by statute. Hist. Under certain acts of Par­ liament, the pleading form for a defendant's general denial in a civil action .• This pleading form allowed a public officer to indicate action under a statute. The officer had to write the words "by statute" in the margin along with the year, chapter, and section of the applicable statute, and the defendant could not file any other defense without leave of court. The right to plead "not guilty by statute" was essentially removed by the Public Authorities Protection Act of 1893. 4. A general denial in an ejectment action. [Cases: Ejectment C=:=>68.] ''The general issue in ejectment is not guilty. This plea operates as follows: (l) As a denial of the unlawfulness of the withholding; i.e., of the plaintiff's title and right of pos­ session. (2) All defenses in excuse or discharge, including the statute of limitations, are available under the general issue in ejectment." Benjamin j. Shipman, Handbook of Common-Law Pleading § 188, at 333 (Henry Winthrop Bal­ lantine ed., 3d ed. 1923).

not-guilty plea. See PLEA (1). nothous (noh-thds), adj. Archaic. Spurious; illegiti­ mate. nothus (noh-thds), n. [Latin fro Greek nothos "false"] Roman law. An illegitimate child; one of base birth.• If the child's mother was a Roman citizen, the child was also a Roman citizen. - Also termed spurius. notice, n. (16c) 1. Legal notification required by law or agreement, or imparted by operation oflaw as a result of some fact (such as the recording of an instrument); definite legal cognizance, actual or constructive, of an existing right or title .• A person has notice of a fact or condi­ tion if that person (1) has actual knowledge of it; (2) has received information about it; (3) has reason to know about it; (4) knows about a related fact; or (5) is con­ sidered as having been able to ascertain it by checking an official filing or recording. [Cases: Constitutional Law C=:=>251.6, 309; Notice C=:=> 1.] 2. The condition of being so notified, whether or not actual awareness exists . Cf. KNOWLEDGE. [Cases: Sales C=:=> 235; Vendor and Purchaser C=:=>225.] 3. A written or printed announcement . actual notice. (18c) 1. Notice given directly to, or received personally by, a party. - Also termed express

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notice. [Cases: Notice C=:=> 1.5.] 2. Property. Notice given by open possession and occupancy of real property. [Cases: Vendor and Purchaser C=:=>232.] adequate notice. See due notice. commercial-law notice. Under the UCC, notice of a fact arising either as a result of actual knowledge or notification ofthe fact, or as a result of circumstances under which a person would have reason to know of the fact. UCC § 1-201(25). [Cases: Sales C=:=>235.] constructive notice. (18c) Notice arising by presump­ tion of law from the existence of facts and circum­ stances that a party had a duty to take notice of, such as a registered deed or a pending lawsuit; notice presumed by law to have been acquired by a person and thus imputed to that person. - Also termed legal notice. [Cases: Notice C=:=>4; Vendor and Purchaser C=:=>229.] direct notice. (17c) Actual notice of a fact that is brought directly to a party's attention. - Also termed positive notice. due notice. (17c) Sufficient and proper notice that is intended to and likely to reach a particular person or the public; notice that is legally adequate given the particular circumstance. - Also termed adequate notice; legal notice. express notice. (18c) Actual knowledge or notice given to a party directly, not arising from any inference, duty, or inquiry. See actual notice. [Cases: Notice C=:=> 2.] fair notice. (17c) 1. Sufficient notice apprising a litigant ofthe opposing party's claim. 2. The requirement that a pleading adequately apprise the opposing party of a claim .• A pleading must be drafted so that an opposing attorney of reasonable competence would be able to ascertain the nature and basic issues of the controversy and the evidence probably relevant to those issues. 3. FAIR WARNING. [Cases: Federal Civil Procedure C=:=>673; Pleading C=:=>48.] immediate notice. 1. Notice given as soon as possible. 2. More commonly, and esp. on notice of an insur­ ance claim, notice that is reasonable under the cir­ cumstances. [Cases: Insurance ~~3154.] implied notice. (18c) Notice that is inferred from facts that a person had a means of knowing and that is thus imputed to that person; actual notice of facts or circumstances that, if properly followed up, would have led to a knowledge of the particular fact in question. - Also termed indirect notice; presump­ tive notice. [Cases: Notice C=:=>3.] imputed notice. (1831) Information attributed to a person whose agent, having received actual notice of the information, has a duty to disclose it to that person.• For example, notice of a hearing may be imputed to a witness because it was actually disclosed to that witness's attorney of record. [Cases: Principal and Agent C=:=> 177(1).] indirect notice. See implied notice.

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inquiry notice. (1945) Notice attributed to a person when the information would lead an ordinarily prudent person to investigate the matter further; esp., the time at which the victim of an alleged secu­ rities fraud became aware of facts that would have prompted a reasonable person to investigate. [Cases: Notice :)6; Vendor and Purchaser (;::::;229.] judicial notice. See JlJDICIAL NOTICE.

legal notice. 1. See constructive notice. 2. See due

notice. notice by publication. See public notice. personal notice. (17c) Oral or written notice, according to the circumstances, given directly to the affected person. positive notice. See direct notice. presumptive notice. See implied notice. public notice. (16c) Notice given to the public or persons affected, usu. by publishing in a newspaper of general circulation.• This notice is usu. required, for example, in matters of public concern. Also termed notice by publication. [Cases: Notice reasonable notice. Notice that is fairly to be expected or required under the particular circumstances. record notice. (1855) Constructive notice of the contents of an instrument, such as a deed or mortgage, that has been properly recorded. [Cases: Vendor and Pur­ chaser (:='231.] short notice. Notice that is inadequate or not timely under the circumstances. 4. Intellectual property. A formal sign attached to items that embody or reproduce an intellectual property right. • Notice of patent is made by placing the word "patent" Cor its abbreviation, "pat.") and the item's patent number on an item made by a patentee or licensee. There are three statutory notice forms for U.S. trademark and servicemark registration. The most common is the symbol with the letter R C®} but "Reg. U.S. Pat. & Tm. Off." or "Registered in U.S. Patent and Trademark Office" affords the same legal protection. A copyright notice also takes several forms. The first part may be the symbol with the letter C in a circle (©), or the word "Copr." or "Copyright." It must be followed by the copyright owner's name and the year that the work was first published. Informal signs, such as "Brand," "TM," "Trademark," "SM," and "Service Mark," adjacent to words or other symbols considered to be protectable marks are not legal notices of exclusive rights. [Cases: Patents Trademarks C·::c 1250.] 5. Parliamentary law. A meeting's published call. See call ofa meeting under CALL (1). 6. Parliamentary law. A formal statement that certain business may come before a meeting, usu. made at an earlier meeting or published with the call of the meeting that will consider the business, and made as a prerequisite to the busi­ ness's consideration. See call ofa meeting under CALL (1). Also termed previous notice.

notice of allowability

notice, vb. (15c) 1. To give legal notice to or of 6; Federal Civil Procedure C=:::>561.j2. Bankruptcy. A written notice filed with the court or oral announcement in open court by a person who wants to receive all pleadings in a particular case. • This notice is usu. filed by an attorney for a creditor who wants to be added to the official service list. 3. A pleading filed by an attorney to notify the court and the other parties that he or she represents one or more parties in the lawsuit. - Abbr. NOA. notice of completion. Construction law. A written and recorded announcement that a building project is finished, thereby limiting the time for filing mechanic's liens against the property.• The time for filing a lien begins to run when the notice of completion is filed. [Cases: Mechanics' Liens C=:::> 132(4).] notice of copyright. See COPYRIGHT NOTICE. notice of deficiency. See NINETY-DAY LETTER. notice of dishonor. (1804) Notice to the indorser of an instrument that acceptance or payment has been refused.• This notice - along with presentment and actual dishonor - is a condition of an indorser's sec­ ondary liability. UCC § 3-503(a). Also termed cer­ tificate ofprotest; certificate ofdishonor. [Cases: Bills and Notes C=:::>393, 411.1 notice of incomplete application. Patents. A notice sent to the applicant by the U.S. Patent and Trademark Office when a patent application lacks a required document or the filing fee.• The applicant generally has two months to complete the application, with an extension avail­

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able upon payment of a surcharge. [Cases: Patents 104.) notice of lis pendens. See LIS PENDENS (3). notice of motion. (lSc) Written certification that a party to a lawsuit has filed a motion or that a motion will be heard or considered by the court at a particular time.• Under the Federal Rules of Civil Procedure, the requirement that a motion be made in writing is fulfilled ifthe motion is stated in a written notice of the hearing on the motion. Also, the courts in most juris­ dictions require all motions to include a certificate, usu. referred to as a certificate of service, indicating that the other parties to the suit have been given notice of the motion's filing. Notice ofany hearing or other submis­ sion of the motion must usu. be provided to all parties by the party requesting the hearing or submission. Fed. R. Civ. P. 5(d), 7(b)(l); Fed. R. Civ. P. Form 19. [Cases: IB.1.] Federal Civil Procedure C=:::>921; Motions notice ofnonresponsibility. Construction law. A written disclaimer that, if posted conspicuously and recorded, relieves a property owner from liability for work or materials used on the property without the owner's authorization.• It protects an owner against mechan­ ic's liens that could arise when repairs or improvements are made by a tenant or other person in possession. [Cases: Mechanics' Liens C'~ 7S.] notice of orders or judgments. (1854) Written notice of the entry of an order or judgment, proVided by the court clerk or one of the parties .• Notice of a judgment is usu. provided by the clerk of the court in which the judgment was entered. If the court does not provide notice, a party is usu. required to provide it. Under the Federal Rules of Civil Procedure and the Federal Rules of Criminal Procedure, the clerk is required to provide immediate notice ofany order or judgment to any party to the case who is not in default. Fed. R. Civ. P. 77(d); Fed. R. Crim. P. 49(c). [Cases: Federal Civil Procedure ,~~'/.n.rn:Judgment C=:::>276; Motions notice of pendency. See LIS PENDENS (3). notice of prior-art references. Patents. Notification from a patent examiner of the previously issued patents used in rejecting one or more ofthe applicant's claims. [Cases: Patents G=> 108.] notice of protest. 1. A statement, given usu. by a notary public to a drawer or indorser of a negotiable instrument, that the instrument was neither paid nor accepted; information proVided to the drawer or indorser that protest was made for nonacceptance or nonpayment of a note or bill. See PROTEST (2). [Cases: Bills and Notes G=·40B.] 2. A shipowner's or crew's declaration under oath that damages to their vessel or cargo were the result of perils of the sea and that the shipowner is not liable for the damages. See PERIL OF THE SEA.

notice of removal. (1892) The pleading by which the defendant removes a case from state court to federal court. • A notice of removal is filed in the federal district court in the district and division in which the

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suit is pending. The notice must contain a short and plain statement of the grounds for removal and must include a copy of all process, pleadings, and orders that have been served on the removing party while the case has been pending. The removing party must also notify the state court and other parties to the suit that the notice of removal has been filed. A notice of removal must be filed, if at all, within 30 days after the defen­ dant is served with process in the suit. 28 {JSCA § 1446; Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 119 S.Ct. 1322 (1999). [Cases: Removal of Cases C~86, 87.} notice of trial. (17c) A document issued by a court informing the parties of the date on which the lawsuit is set for trial. _ While the court typically proVides the notice to all parties, it may instead instruct one party to send the notice to all the others. [Cases: Federal Civil Procedure 1966; Trial (:=>6.} notice pleading. See PLEADING (2). notice-prejudice rule. A doctrine barring an insurer from using late notice as a reason to deny an insured's claim unless the insurer can show that it was prejudiced by the untimely notice. [Cases: Insurance C:::>3168.J notice-race statute. See RACE-NOTICE STATUTE. notice statute. (1864) A recording act providing that the person with the most recent valid claim, and who purchased without notice of an earlier, unrecorded claim, has priority. _ About halfthe states have notice statutes. Also termed notice act. Cf. RACE STATUTE; RACE-:l/OTICE STATUTE. [Cases: Vendor and Purchaser (:::::)23L] notice to admit. See REQUEST FOR ADMISSION. notice to all the world. A general public announcement regarding a lawsuit, esp. to persons within the jurisdic­ tion where a lawsuit is pending. notice to appear. (17c) A summons or writ by which a person is cited to appear in court. - This is an informal phrase sometimes used to refer to the summons or other initial process by which a person is notified of a lawsuit. The Federal Rules of Civil Procedure require the summons to state that the defendant must appear and defend within a given time and that failure to do so will result in a default judgment. Fed. R. Civ. P. 4(a). See PROCESS; SUMMONS; DEFAULT JUDGMENT; NOTICE TO PLEAD.

notoriety DEFAULT JUDGMENT; NOTICE TO APPEAR. [Cases: Pleading (:=>83; Process (:=>33.] notice to produce. See REQUEST FOR PRODUCTION. notice to quit. (18c) 1. A landlord's written notice demanding that a tenant surrender and vacate the leased property, thereby terminating the tenancy. [Cases: Landlord and Tenant (:=>94, 116(2), 116(5), 120(2).] 2. A landlord's notice to a tenant to pay any back rent within a specified period (often seven days) or else vacate the leased premises. - Also termed notice to pay rent or quit. notification. (I5c) 1. Int'llaw. A formal announcement ofa legally relevant fact, action, or intent, such as notice of an intent to withdraw from a treaty. 2. NOTICE. - A person receives notification if someone else (1) informs the person of the fact or of other facts from which the person has reason to know or should know the fact, or (2) does an act that, under the rules applicable to the transaction, has the same effect on the legal relations of the parties as the acquisition of knowledge. Restate­ ment ofAgency § 9(2). notify. vb. (l4c) 1. To inform (a person or group) in writing or by any method that is understood . 2. Archaic. To give notice of; to make known . See NOTICE. noting protest. See PROTEST (2). not in order. See OUT OF ORDER (1). notio (noh-shee-oh), n. [fr. Latin noscere "to know"] 1. Roman law. An investigation of a case by a magis­ trate. 2. Hist. The authority of a judge to try a case. PI. notiones (noh-shee-oh-neez). notitia (noh-tish-ee-a), n. [Latin "knowledge"]l. Roman law. Knowledge; information. - This term carried over for a time into English practice. 2. Roman law. A list; register; catalogue .• The Notitia Dignitatum (dig-ni­ tay-tam) was a list of the high offices in the Eastern and Western parts of the empire, complied in the late fourth or early fifth century A.D. 3. Hist. Notice. 4. A list of ecclesiastical sees. not law. A judicial decision regarded as wrong by the legal profession.

"Even when it is not possible to point out any decision that affects the point in question in anyone of the ways enumerated, it sometimes happens that the profeSSion has grown to ignore the old decision as wrong or obsolete: and though this does not happen often, when it does happen, the old deCision is very likely not to be followed in case the point is squarely raised again. This is one of the instances in which lawyers rather mystically, though soundly, say that a decision is 'not law,'" William M. Lile et aI., Brief Making and the Use of Law Books 329 (3d ed. 1914).

notice to creditors. Bankruptcy. A formal notice to credi­ tors that a creditors' meeting will be held, that proofs of claim must be filed, or that an order for re1iefhas been granted. [Cases: Bankruptcy (:=>2131.] notice to pay rent or quit. See KOTICE TO QUIT. notice to plead. (ISc) A warning to a defendant, stating notorial. See NOTARIAL. that failure to file a responsive pleading within a pre­ notoriety. (16c) 1. The state ofbeing generally, and often scribed time will result in a default judgment. - 1he unfavorably, known and spoken of . 2. A person in such a state .

notorious, adj. (15c) 1. Generally known and spoken of, usu. unfavorably. 2. (Of the possession of property) so conspicuous as to impute notice to the true owner. ­ Also termed (in sense 2) open and notorious. See ADVERSE POSSESSION. [Cases: Adverse Possession (;:::; 30.]

notorious cohabitation. See COHABITATION. notorious insolvency. Scots law. A bankruptcy; the stage of insolvency in which the debtor has publicly acknowl­ edged insolvency under the statute .• This stage is usu. followed by sequestration, which is notorious insol­ vency coupled with the appointment of a trustee for creditors. - Also termed notour bankruptcy. "Bankruptcy, according to the law of Scotland, is public or notorious insolvency. When a debtor in an obligation cannot fulfil his obligation as undertaken ... a position which constitutes insolvency - and makes public acknowl­ edgment, in manner determined by statute, of his inabil­ ity, the status or condition of bankruptcy has arisen, and the insolvent debtor is, in the language of the statutes, a 'notour' bankrupt .... The law of notour bankruptcy is mainly statutory. Legislation has fixed the circumstances which constitute the status, and determined all the most important results." George Watson, Bel/'s Dictionary and Digest of the Law of Scotland 78 (3d ed. 1882).

notorious possession. See POSSESSION. not otherwise indexed by name. A phrase used in shipping and tariff construction, usu. to show a classi­ fication of something generally rather than specifically. • For example, a shipment of aircraft and boat engines merely labeled "other articles" is not otherwise indexed by name. - Abbr. NOlBN. [Cases: Carriers (;:::; 189.] notour bankruptcy. See NOTORIOUS INSOLVENCY. not possessed. Common-law pleading. In an action in trover, the defendant's plea denying possession of the articles allegedly converted. See TROVER. not proven. An archaic jury verdict - now used only in Scots criminal law - equivalent in result to not guilty, but carrying with it a strong suspicion of guilt not fully proved. - Also termed Scotch verdict. not satisfied. A form of return by a sheriff or constable, on a writ of execution, indicating only that the amount due on a judgment was not paid .• A general return of this type is usu. viewed as technically deficient because it does not state why the writ was not satisfied. Cf. NULLA BONA. [Cases: Execution (;:::;334.] not sufficient funds. (1845) The notation of dishonor (of a check) indicating that the drawer's account does not contain enough money to cover payment. - Abbr. NSF. - Also termed insufficient funds. notwithstanding, prep. (15c) Despite; in spite of <not­ withstanding the conditions listed above, the landlord can terminate the lease if the tenant defaults>. n.o.v. abbr. NON OBSTANTE VEREDICTO. nova causa interveniens. See intervening cause under CAUSE (1).

nova causa obligationis (noh-vd kaw-zd ahb-li-gay-shee­ oh-nis). [Latin] Hist. A new ground of obligation.

nova custuma (noh-vd kds-t[y]d-md), n. [Law Latin "new custom"] Hist. A tax; an imposition. Cf. ANTIQUA CUSTUMA.

nova debita (noh-vd deb-i-td). [Latin] Scots law. New debts, as distinguished from preexisting ones. "A security granted by a debtor within sixty days of his bankruptcy for a debt contracted before that period is reducible as a fraudulent preference. But security or payment granted in consideration of a novum debitum ­ a debt presently contracted - is not reducible although granted within the sixty days." John Trayner, Trayner's Latin Maxims 402 (4th ed. 1894).

novae narrationes (noh-vee nd-ray-shee-oh-neez), n. [Law Latin "new counts or tales"] Hist. A collection of pleading forms published during the reign of Edward III. novalia (noh-vay-Iee-d). [Law Latin "new lands" or "newly tilled land"] Scots law. Land newly cultivated. • Exemptions from paying teinds, or tithes, were some­ times granted for novalia. nova statuta (noh-vd Std-t[y]oo-td), n. pI. [Law Latin] Hist. New statutes .• This term refers to the statutes passed beginning with the reign of Edward III. Cf. VETERA STATUTA.

novation (noh-vay-shdn), n. (16c) 1. The act of sub­ stituting for an old obligation a new one that either replaces an existing obligation with a new obligation or replaces an original party with a new party.• A novation may substitute (1) a new obligation between the same parties, (2) a new debtor, or (3) a new creditor. 2. A contract that (1) immediately discharges either a previous contractual duty or a duty to make compensa­ tion, (2) creates a new contractual duty, and (3) includes as a party one who neither owed the previous duty nor was entitled to its performance. - Also termed substi­ tuted agreement; (Scots law) innovation.; (Roman law) novatio (noh-vay-shee-oh). See STIPULATIO AQUILI­ ANA; substituted contract under CONTRACT; ACCORD (2). [Cases: Novation l.] - novate (noh-vayt or noh-vayt), vb. - novatory (noh-vd-tor-ee), adj. "Novation is the emerging and transfer of a prior debt into another obligation either civil or natural, that is, the con­ stitution of a new obligation in such a way as to destroy a prior one." Ulpian, D.46.2.1 pro ''The only way in which it is possible to transfer contractual duties to a third party is by the process of novation, which requires the consent of the other party to the contract. In fact novation really amounts to the extinction of the old obligation, and the creation of a new one, rather than to the transfer of the obligation from one person to another. Thus if B owes A £100, and C owes B the same amount, B cannot transfer to C the legal duty of paying his debt to A without A's consent. But if A agrees to accept C as a debtor in place of B, and if C agrees to accept A as his creditor in place of B, the three parties may make a tripartite agree­ ment to this effect, known as novation. The effect of this is to extinguish B's liability to A and create a new liability on the part of c." P.S. Atiyah, An Introduction to the Law of Contract 283 (3d ed. 1981). "The word 'novation' is used in a variety of senses. Courts frequently use it as synonymous with 'substituted contract.' Most academic writers and both contracts restatements, however, restrict its use to describe a substituted contract involving at least one obligor or obligee who was not a

party to the original contract .... The development of a separate category under the rubric 'novation' is doubtless traceable to problems of consideration formerly thought to be present in such contracts because of the former common law rule that consideration must be supplied by the promisee. This rule has long been laid to rest almost everywhere." John D. Calamari &Joseph M. Perillo, The Law of Contracts § 11-8, at 444-45 (3d ed. 1987).

objective novation. Civil law. A novation involving the substitution of a new obligation for an old one. [Cases: Novation (;::::>4.] subjective novation. Civil law. A novation involving the substitution of a new obligor for a previous obligor who has been discharged by the obligee. novel assignment. See new assignment under ASSIGN­ MENT (7). novel disseisin (nov-al dis-see-zin), n. A recent dissei­ sin. See DISSEISIN; assize ofnovel disseisin under ASSIZE (8).

Novellae (m-vel-ee). See NOVELS. Novellae Constitutiones. See NOVELS. Novellae Leonis (n413.]2. Patents. Newness of an invention both in form and in function or performance; the strict statu­ tory requirement that this originality be demonstrated before an invention is patentable.• Proving novelty is one purpose of the rigorous and expensive examination process. If the invention has been previously patented, described in a publication, known or used by others, or sold, it is not noveL 35 USC A § 102. Cf. NONOBVIOUS­ NESS. [Cases: Patents "Although the statute uses the words 'not known,' these are not to be taken literally. Novelty consists primarily in the invention not having been used by others in the United States or patented or described in any printed publication in this or any foreign country." Roger Sherman Hoar, Patent Tactics and the Law 36-37 (3d ed. 1950).

absolute novelty. Patents_ The rule in most countries, but not in the United States, that an inventor must always file a patent application before the inven­ tion is publicly used, placed on sale, or disclosed.• Under U.S. law, an inventor is given a one-year grace period beginning on the date of any public use, sale, offer of sale, or publication by the inventor or

the inventor's agent in which to file a patent appli­ cation. After that, the patent is barred. Canada and Mexico also give the first inventor or the inventor's assignees a one-year grace period for filing, but they bar a patent for the first inventor if the invention is independently developed and disclosed by someone else during that time. - Also termed absolute-novelty requirement. Cf. BAR DATE. noverca (nr-kd), n. [Latin] A stepmother. noverint universi per praesentes (noh-va-rant yoo-ni­ v;}r-SI p. [Cases: Nuisance 61.] 'There is perhaps no more impenetrable jungle in the entire law than that which surrounds the word 'nuisance.' It has meant all things to all people, and has been applied indiscriminately to everything from an alarming advertise­ ment to a cockroach baked in a pie." Prosser and Keeton on the Law of Torts § 86, at 616 (W. Page Keeton ed., 5th ed. 1984).

3, 1be class of torts arising from such conditions, acts,

or failures to act when they occur unreasonably. - Also termed actionable nuisance. [Cases: Nuisance (;::=03, 61.] "Nuisance is really a field of tortious liability rather than a single type of tortious conduct: the feature which gives it unity is the interest invaded that of the use and enjoy­ ment of land. The tort emphasises the harm to the plaintiff rather than the conduct of the defendant." R.F.v. Heu5ton, Salmond on the Law of Torts 50-S1 (17th ed. 1977).

abatable nuisance. (1871) 1. A nuisance so easily removable that the aggrieved party may lawfully cure the problem without notice to the liable party, such as overhanging tree branches. [Cases: Nuisance (;::;> 19.]

2. A nuisance that reasonable persons would regard as being removable by reasonable means. absolute nuisance. (18c) 1. Interference with a property right that a court considers fixed or invariable, such as a riparian owner's right to use a stream in its natural 2. See nuisance condition. [Cases: Nuisance per se. 3. Interference in a place where it does not rea­ sonably belong, even ifthe interfering party is carefuL 4. Interference for which a defendant is held strictly liable for resulting harm, esp. in the nature of pollu­ tion. Cf. qualified nuisance. Sense (4) has been disapproved: "[Tlhe use of the term 'nUisance' to describe the tort liability that sometimes results from accidental invasions produces too much con­ fusion." Prosser and Keeton on the Law of Torts § 89, at 637 (W. Page Keeton ed., Sth ed. 1984).

anticipatory nuisance. A condition that, although not yet at the level of a nuisance, is very likely to become one, so that a party may obtain an injunction pro­ hibiting the condition. - Also termed prospective nuisance. [Cases: Nuisance attractive nuisance. (1901) A dangerous condition that may attract children onto land, thereby causing a risk to their safety. See ATTRACTIVE-NUISANCE DOCTRINE. Cf. ALLUREMENT.; dangerous condition (2) under CON­ DITION (4). [Cases: Negligence ~1l72, 1175.] "[TJhe doctrine acquired the unfortunate misnomer 'attrac­ tive nuisance,' a label which persists to this day. It cannot be taken literally, since the courts have now largely rejected the notion that the child must be attracted by that which injures him. and whether or not the condition is in fact a 'nuisance' has nothing at all to do with defendant's liability to the child." Edward J. Kionka, Torts in a Nutshell 89 (2d ed. 1992).

cognate nuisance. Rare. Interference with an ease­ ment. "The term nuisance is applied to torts of two distinct groups, first, acts of wrongful user by an owner or pos­ sessor of land reSUlting in an unreasonable interference with the rights of enjoyment of the owner or possessor of neighboring land, and, second, wrongful interferences WIth easements or other incorporeal rights," William F. Walsh, A Treatise on Equity 170 (1930). "When an easement was interfered with, an action on the case lay as a matter of course .... Such an interference is sometimes called 'cognate nuisance' to distinguish it from interferences with the personal enjoyment of the incidents of occupying the land." J.H. Baker, An Introduction to English Legal History 486 (3d ed. 1990).

common nuisance. See public nuisance. continuing nuisance. (1837) A nuisance that is either uninterrupted or frequently recurring. - It need not be constant or unceasing, but it must occur often enough that it is almost continuous. [Cases: Nuisance (;::=04, 19.] legalized nuisance. A nuisance sanctioned by legisla­ tive, executive, or other official action and therefore immune from liability, such as a city park. mixed nuisance. (1894) A condition that is both a private nuisance and a public nuisance, so that it is dangerous to the community at large but also

causes particular harm to private individuals. [Cases: Nuisance ~72.] nuisance at law. See nuisance per se. nuisance dependent on negligence. See qualified nuisance. nuisance in fact. (1855) A nuisance existing because of the circumstances of the use or the particular location.• For example, a machine emitting high­ frequency sound may be a nuisance only if a person's dog lives near enough to the noise to be disturbed by it. - Also termed nuisance per accidens. nuisance per se (p;)r say). (186) Interference so severe that it would constitute a nuisance under any circum­ stances; a nuisance regardless oflocation or circum­ stances of use, such as a leaky nuclear-waste storage facility. - Also termed nuisance at law; absolute nuisance. [Cases: Nuisance ~4.] permanent nuisance. (18c) A nuisance that cannot readily be abated at reasonable expense. Cf. tempo­ rary nuisance. [Cases: Nuisance ~ 1, 4.] private nuisance. (I8c) A condition that interferes with a person's enjoyment of property; esp., a struc­ ture or other condition erected or put on nearby land, creating or continuing an invasion of the actor's land and amounting to a trespass to it .• The condition constitutes a tort for which the adversely affected person may recover damages or obtain an injunction. [Cases: Nuisance ~ 1.] "Trespass and private nuisance are alike in that each is a field of tort liability rather than a single type of tortious conduct. In each, liability may arise from an intentional or an unintentional invasion. For an intentional trespass, there is liability without harm; for a private nuisance, there is no liability without significant harm .... In private nuisance an intentional interference with the plaintiff's use or enjoyment is not of itself a tort, and unreasonableness of the interference is necessary for liability." Restatement (Second) of Torts § 8210 cmt. d (1979). "The different ways and combinations of ways in which the interest in the use or enjoyment of land may be invaded are infinitely variable. A private nuisance may consist of an interference with the physical condition of the land itself, as by vibration or blasting which damages a house, the destruction of crops, flooding, raising the water table, or the pollution of a stream or of an underground water supply." W. Page Keeton et aI., Prosser and Keeton on the Law of Torts § 87, at 619 (W. Page Keeton ed., 5th ed. 1984).

prospective nuisance. See anticipatory nuisance. public nuisance. (17c) An unreasonable interference with a right common to the general public, such as a condition dangerous to health, offensive to com­ munity moral standards, or unlawfully obstructing the public in the free use of public property.• Such a nuisance may lead to a civil injunction or criminal prosecution. - Also termed common nuisance. [Cases: Nuisance ~59-96.] "Public and private nuisances are not in reality two species of the same genus at all. There is no generic conception which includes the crime of keeping a common gaming­ house and the tort of allOWing one's trees to overhang the land of a neighbour. A public nuisance falls within

the law of torts only in so far as it may in the particular case constitute some form of tort also. Thus the obstruc­ tion of a highway is a public nuisance; but if it causes any special and peculiar damage to an individual, it is also a tort actionable at his suit." R.F.v. Heuston, Salmond on the Law of Torts 49-50 (17th ed. 1977). "[Plublic nuisance ... is an amorphous and unsatisfac­ tory area of the law covering an ill-assorted collection of wrongs, some of which have little or no association with tort and only appear to fill a gap in criminal law. Others cover what could be generally described as 'noisome trade,' which could be dealt with under some form of statutory nuisance. Yet a third group deals with what we would gen­ erally describe as 'abuses of the highway' ...." R.w.M. Dias & B.S. Markesinis, Tort Law 254 (1984).

qualified nuisance. (1944) A condition that, though lawful in itself, is so negligently permitted to exist that it creates an unreasonable risk of harm and, in due course, actually results in injury to another. • It involves neither an intentional act nor a hazard­ ous activity. - Also termed nuisance dependent on negligence. Cf. absolute nuisance. [Cases: Nuisance ~1,6,59.]

recurrent nuisance. A nuisance that occurs from time to time with distinct intervals between occurrences, rather than being continuous or only briefly inter­ rupted. temporary nuisance. (1879) A nuisance that can be cor­ rected by a reasonable expenditure of money or labor. Cf. permanent nuisance. [Cases: Nuisance ~4, 19.] nuisance money. See nuisance settlement under SETTLE­ MENT (2).

nuisance per accidens. See nuisance in fact under NUI­ SANCE.

nuisance prior art. See ART. nuisance settlement. See SETTLEMENT (2). nuke. Slang. See DENIAL-OF-SERVICE ATTACK. nul (n;)l). [Law French] No; none.• This negative particle begins many phrases, such as nul tiel. nul agard (n;)} ;)-gahrd), n. [Law French "no award"] In an action to enforce an arbitration award on an arbitra­ tion bond, a plea denying the existence of the award. Cf. AGARD. nul disseisin (n;}} dis-see-zin). [Law French "no dissei­ sin"] In a real action, a defendant's plea that the plain­ tiff was not deprived of the possession of any land and tenements. See DISSEISIN. nulfait agard (n;)l fay;)-gahrd). [Law French] No award was made. Cf. AGARD. null, adj. (16c) Having no legal effect; without binding force; VOID . • The phrase null and void is a common redundancy. [Cases: Contracts ~98, 135.] nulla bona (n;J}-;) boh-n;)). [Latin "no goods"] (I8c) A form of return by a sheriff or constable upon an execu­ tion when the judgment debtor has no seizable property within the jurisdiction. Cf. NIHIL EST. [Cases: Execu­ tion~334.]

nulla persona (nal-.:l p.:lr-soh-n.:l). [LatinI Hist. No person. - The phrase appeared in reference to the status of one who essentially has no legal rights usu. because of that person's actions, such as committing a crime, or that person's status, such as being a minor. nulla poena sine lege (nal-J pee-nJ sl-nee lee-jee or sin-ay lay-gay). [Latin] No punishment without a law authorizing it. nulla sasina, nulla terra (ua!-J say-si-nJ [or say-zi-J, nal-J ter-J). [Law Latin] Scots law. No seisin (or enfeoff­ ment), no land. _ The phrase appeared in reference to the principle that there could be no indefeasible right in land until an enfeoffment was taken. nullification (ml-i-fi-kay-shJn), n. (18c) 1. The act of making something void; specif., the action of a state in abrogating a federal law, on the basis of state sover­ eignty. [Cases: States 04.1(1).] 2. The state or condi­ tion of being void. See JURY NULLIFICATION.

uullification doctrine. The theory espoused by advocating a southern states before the Civil War state's right to declare a federal law unconstitutional and therefore void. nullify, vb. To make void; to render invalid. nullity (nal-J-tee). (16c) 1. Something that is legally void . [Cases: Contracts C-~'98, 135.] 2. The fact ofbeing legally void <she filed a petition for nullity of marriage>. absolute nullity. Civil law. 1. An act that is void because it is against public poHcy, law, or order. - The nullity is noncurable. It may be invoked by any party or by the court. See La. Civ. Code arts 7, 2030. 2. The state of such a nullity. See NULLITY OF MARRIAGE. relative nullity. Civil law. 1. A legal nullity that can be cured by confirmation because the object of the nullity is valid.• The nullity may be invoked only by those parties for whose interest it was established. See La. Civ. Code art. 2031. 2. The state of such a nullity. nullity of marriage. 1. The invalidity of a presumed or supposed marriage because it is void on its face or has been voided by court order.• A void marriage, such as an incestuous marriage, is invalid on its face and requires no formality to end. See void marriage under MARRIAGE (1). [Cases: Marriage 1, 54(1), 58.] 'The declaration of nullity is appropriate if the marriage is relatively null or absolutely null yet one or both spouses were in good faith. If the marriage is relatively null, civil effects flow until the declaration of nullity. On the other hand, the marriage that is absolutely null generally produces civil effects only if one or both of the spouses were in good faith and only so long as good faith lasts." 16 Katherine S. Spaht & W. Lee Hargrave, Louisiana Civil Law Treatise: Matrimonial Regimes § 7.6, at 348 (2d ed. 1997).

2. A suit brought to nullify a marriage.

Also termed nullity suit. See ANNULMENT. [Cases: Marriage 56.J nullity suit. See NULLITY OF MARRIAGE (2).

nullius filius (nJ-h-Js fil-ee-Js), n. [Latin "son of no one") An illegitimate child. [Cases: Children Out-of­ Wedlock "p I, 84-89.} nullius in bonis (nJ-h-Js in bob-nis), adj. [Latin "among the property of no person"} Hist. Belonging to no one .• Wild animals were considered to be nullius in bonis. Also termed in nullius bonis. nullius juris (nJ-h-Js joor-is). [Latin} Hist. Of no legal force. nullum arbitrium (nal-Jm ahr-bi-tree-273, 326; Motions C=>54.] "When an order is signed 'nunc pro tunc' as of a specified date, it means that a thing is now done which should have been done on the specified date." 35A c.J.S. Federal Civil Procedure § 370, at 556 (1960).

nunc pro tunc amendment. See AMENDMENT (2). nunc pro tunc judgment. See JUDGMENT. nuncupare (n;lng-kyuu-pair-ee), vb. [Latin "call by name"] Hist. To name or pronounce orally.• Nun­ cupare heredem means to name an heir before public witnesses. nuncupate (n;mg-kY;l-payt), vb. [fro Latin nuncupare "call by name"] 1. Hist. To designate or name. 2. To vow or declare publicly and solemnly. 3. To declare orally, as a will. 4. To dedicate or inscribe (a work). nuncupative (nang-kY;l-pay-tiv or n;lng-kyoo-p;l-tiv), adj. [fr. Latin nuncupare "to name"] (15c) Stated by spoken word; declared orally. nuncupative testament by public act. See nuncupative will by public act under WILL. nuncupative will. See WILL. nuncupative will by public act. See WILL. nunc valent et quantum valuerunt tempore pads (mngk vay-lent et kwon-t;lm val-yoo-er-;lnt tem-p;l-ree pay­ sis). [Latin] Scots law. The value (of the lands) now, and their value in time ofpeace.• This was the object of an inquiry formerly made in an inquest to assess the value oflands for taxation purposes. nundinae (nan-d;l-nee), n. [fro Latin novem "nine" + dies" day"] 1. Roman law. A fair or market. 2. Roman law. The period between two consecutive markets (usu. eight days), including the market days.• This period was often fixed for the payment of debts. nundination (n;ln-di-nay-sh;ln), n. [fro Latin nundinatio "the holding of a market or fair"] Hist. The act of buying or selling at a fair. nunquam indebitatus (n832.] messenger were usu. as valid as those by letter. 2. Hist. A nurture, vb. (l4c) 1. To supply with nourishment. 2. To messenger sent to make an excuse for a party's absence train, educate, or develop. in court. 3. Hist. An officer of the court. - Also termed nurturing-parent doctrine. Family law. The principle summoner; beadle. 4. Eccles. law. NUNCIO (1). that, although a court deciding on child support gener­ nuper obiit (n[yloo-p36(l).J ' thought, feeling, or action is directed 2017; Trial C=>31, 77, 131.]- objector, n, obediential obligation. See OBLIGATION. objectant. See CONTESTANT (1). ob favorem mercatorum (ob fa-vor-<Jm m690-698, 1043; Federal Civil Procedure C::>2017; Trial 77, 131.] continuing objection. (1940) A single objection to all the questions in a given line of questioning. - A judge may allow a lawyer to make a continuing objection when the judge has overruled an objection applicable to many questions, and the lawyer wants to preserve the objection for the appellate record. Also termed running objection. [Cases: Criminal Trial C::>79.] general objection. (18c) An objection made without specifying any grounds in support of the objection. - A general objection preserves only the issue of rel­ evancy. Also termed broadside objection. [Cases: Pleading 695 (2), 1043(2); Federal Civil Procedure C::>2017.1; Trial C:)82.j speaking objection. (1958) An objection that contains more information (often in the form of argument) than needed by the judge to sustain or overrule it. ­ Many judges prohibit lawyers from using speaking objections, and sometimes even from stating the grounds for objections, because of the potential for influencing the jury. specific objection. (1894) An objection that is accom­ panied by a statement of one or more grounds in support of the objection. [Cases: Criminal Law 695(2); Federal Civil Procedure C::>2017.1; Trial 82,83.] 2. Parliamentary law. A motion that suppresses a main motion, esp. one that will or may inflame controversy, immediately and without debate. - The motion, because it disposes of the main motion without any debate, usu. requires a supermajority. - Also termed question of consideration; objection to consideration ofa question. "Objection to the consideration of a question is used when an original main motion is of a delicate or personal nature, or is contentious or inflammatory (such as sectarian, politi· cal, raCial, etc.), or is irrelevant, unprofitable, or otherwise objectionable or discriminatory. The motion can be aVOided altogether by instantly objecting to the consideration of the question," George Demeter, Demeter's Manual of Par­ liamentary Law and Procedure 141 (1969).

3. Parliamentary law. A negative vote, esp. one that defeats a request for general consent. 4. Patents. An examiner's action identifying a defect in the form of a patent application, usu. in the specification or a drawing. - An objection does not raise questions about the merit of the claims. An examiner might object, for instance, to a defective oath or to a trademark appear­ ing on the drawings. Cf. REJECTION (4). [Cases: Patents C::>104.]

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objectionable, adj. (18c) Open to opposition, esp. adverse reason or contrary argument. Also termed excep­ tionable. objection in point oflaw. (l7c) A defensive pleading by which the defendant admits the facts alleged by the plaintiff but objects that they do not make out a legal claim. [Cases: Pleading C::>341, objection to consideration of a question. See OBJEC­ TION (2).

objective, adj. (17c) 1. Ot: relating to, or based on exter­ nally verifiable phenomena, as opposed to an individ­ ual's perceptions, feelings, or intentions . 2. Without bias or prejudice; disinterested . Cf. SUBJECTIVE. objective but-for test. See BUT-FOR MATERIALITY. objective entrapment. See ENTRAPMENT. objective ethics. See MORAL ABSOLUTISM. objective impossibility. See IMPOSSIBILITY. objective meaning. See MEANING. objective method. See HYPOTHETICAL-PERSON DE­ FENSE.

objective novation. See NOVATION. objective standard. See STANDARD. objective theory of contract. (1904) The doctrine that a contract is not an agreement in the sense of a subjective meeting of the minds but is instead a series of external acts giving the objective semblance of agreement. Often shortened to objective theory. Cf. SUBJECTIVE THEORY OF CONTRACT; MEETING OF THE MINDS. [Cases: Contracts C::> 15, 147(1).] object of a power. See permissible appointee under APPOINTEE.

object of a right. (1880) The thing in respect of which a right exists; the subject matter ofa right. Also termed subject ofa right. See SUBJECT OF A RIGHT. object offense. See OFFENSE (1). object of the power. See permissible appointee under APPOINTEE.

object of the power of appointment. See permissible appointee under APPOINTEE. objurgatrix (ob-jar-gay-triks). Hist. A common scold. See SCOLD. oblatio (ah-blay-shee-oh), n. [Latin] Roman law. A tender of payment or performance due. PI. oblationes (ah-blay-shee-oh-neez). oblation (ah-blay-sh;m). (15c) An offering or sacri­ esp. one in a religious or ritualistic ceremony. oblatory, adj. obligant (ob-Ia-g;mt). Scots law. A debtor in an obliga­ tion; OBLIGOR. obligate, vb. (16c) 1. To bind by legal or moral duty. 2. To commit (funds, property, etc.) to meet or secure an obligation.

1179

obligatio (ah-bla-gay-shee-oh), n. [Latin] Roman law. An obligation; a legal bond. PI. obligationes (ah-bl.. ­ gay- shee-oh -neez). obligatio civilis (ah-bla-gay-shee-oh sa-vI-lis). [Latin "civil obligation"] Roman law. 1. An obligation rec­ ognized under;us civile as opposed to one recognized only under jus honorarium. 2. A legally enforceable obligation, such as one by contract. obligatio ex contractu (ah-bla-gay-shee-oh eks kan­ trak-t[y]oo). Roman law. [Latin "contractual obliga­ tion"] A contractual obligation. obligatio ex delicto (ah-bla-gay-shee-oh eks da-Iik-toh). [Latin "tortious obligation"] Roman law. An obliga­ tion arising from a wrongdoing against the person or property of another; an obligation enforceable in tort. - Also termed obligatio ex maleficio (mal-a­ fish-ee-oh). obligatio honoraria (ah-bla-gay-shee-oh [hlon-a-rair­ ee-a). Roman law. An obligation that the praetor or an aedile declares actionable. obligatio litteris (ah-bla-gay-shee-oh lit-ar-is). [Latin "written obligation"] 1. Hist. A written contract. ­ Also termed obligatio litterarum. 2. Scots law. A contract that must be constituted in formal writing. Also spelled obligatio literis. 3. Roman law. Literal contract, strictly comprising only the nomen tran­ scripticium. See NOMEN TRANSCRIPTICIUM. obligatio naturalis (ah-bla-gay-shee-oh nach-a-ray­ lis). [Latin "natural obligation"] Roman law. An obli­ gation that is not legally enforceable, although it may produce legal effects; an obligation deriving only from the law of nature. obligatio quasi ex contractu (ah-bla-gay-shee-oh kway-sI [or -Zl] eks km-trak-t[y]oo). [Latin "obliga­ tion from quasi-contract"] Roman law. An obligation arising between two persons who have not contracted with each other but have formed a relationship similar to a contractual one, or where a payment is made in error; a quasi-contractual obligation. See implied-in­ law contract under CONTRACT. obligatio quasi ex delicto (ah-bla-gay-shee-oh kway-sI [or -zr] eks da-lik-toh). [Latin "obligation from something resembling a tort"] Roman law. An obli­ gation arising from a wrong that is not covered by an obligatio ex delicto but that nonetheless creates liability. Also termed obligatio quasi ex maleficio (mal- 1200-1426.] first offender. (1884) A person who authorities believe has committed a crime but who has never before been convicted ofa crime. _ First offenders are often treated leniently at sentencing or in plea negotiations. [Cases: Criminal Law 25.17.] Contracts, § 178, also § 4; Wormser, 'The True Conception of Unilateral Contracts,' 26 Yale Law Journal, 137, note; negotiated offering. A securities offering in which the Lee, Title Contracts, in Jenks' Dig. of Eng. Civ. Law, § 195; terms (including the underwriters' compensation) Ashley, Contracts, § 13, A close analysis shows that there have been negotiated between the issuer and the is nothing impossible either in the conception itself or in its application. If we define 'offer' as an act on the part of underwriters. the offeror. , . , then no offer can ever be revoked, for it primary offering. An offering of newly issued securi­ is of yesterday - it is indeed factum. But if we mean by 'offer' the legal relation that results from the offeror's act, ties. the powerthen given to the offeree of creating contractual private offering. An offering made only to a small relations by doing certain voluntary acts on his part, then the offer may be either revocable or irrevocable according I Also termed private group of interested buyers. to the circumstances. The idea of an irrevocable power is I placement. [Cases: Securities Regulation (':::J 18.11.] not at all an unfamiliar one." William R. Anson, Principles ' public offering. An offering made to the general of the Law of Contract 53-54 n.3 (Arthur L. Corbin ed., 3d Am. ed. 1919). public. offer to all the world. (1861) An offer, by way of adver­ registered offering. A public offering of securities reg­ tisement, of a reward for the rendering of specified istered with the SEC and with appropriate state secu­ services, addressed to the public at large. _ As soon as rities commissions. - Also termed registered public someone renders the services, a contract is made. ­ offering. [Cases: Securities Regulation C=2S.17.] Also termed public offer. rights offering. An issue of stock-purchase rights offer to chaffer. See INVITATION TO NEGOTIATE. allowing shareholders to buy newly issued stock at a fixed price, usu. below market value, and in pro­ public-exchange offer. A takeover attempt in which the bidder corporation offers to exchange some of its portion to the number of shares they already own. securities for a specified number ofthe target corpo­ Also termed privileged subscription. Cf. PREEMPTIVE ration's voting shares. Cf. TENDER OFFER. RIGHT.

secondary offering. 1. Any offering by an issuer ofsecu­ rities after its initial public offering. 2. An offering of preViously issued securities by persons other than the issuer. See secondary distribution (1) under DIS­ TRIBUTION.

special offering. An offering of a large block of stock that, because of its size and the market in the par­ ticular issue, is specially handled on the Hoor of the stock exchange. undigested offering. A public offering of securities that remain unsold because there is insufficient demand at the offered price. offering circular. A document, similar to a prospectus, that provides information about a private securities offering. - Also termed offering statement. [Cases: Securities Regulation C=>2S.S0-2S.7S.] offering price. See asking price under PRICE. offering statement. See OFFERING CIRCULAR. offer ofcompromise. (I8c) An offer by one party to settle a dispute amicably (usu. by paying money) to avoid or end a lawsuit or other legal action. - An offer of com­ promise is usu. not admissible at trial as evidence of the offering party's liability but may be admissible for other purposes. Also termed offer in compromise; offer of settlement. [Cases: Evidence C='212.] offer ofjudgment. (1971) A settlement offer by one party to allow a specified judgment to be taken against the party. _ In federal procedure (and in many states), if the adverse party rejects the offer, and if a judgment finally obtained by that party is not more favorable than the offer, then that party must pay the costs incurred after the offer was made. Fed. R. Civ. P. 68. [Cases; Federal Civil Procedure C=>2396.S, 272S; Judgment C=>74.] offer of performance. (I8c) Contracts. One party's reasonable assurance to the other, through words or conduct, of a present ability to fulfill contractual obli­ gations. - When performances are to be exchanged Simultaneously, each party is entitled to refuse to proceed with the exchange until the other party makes an appropriate offer of performance. Cf. TEKDER (1). [Cases: Contracts C=>Z79; Sales 185.] 'The requirement of an offer of performance is to be applied in the light of what is reasonably to be expected by the parties in view of the practical difficulties of absolute simultaneity and is subject to the agreement of the parties. as supplemented or qualified by usage and course of dealing." Restatement (Second) of Contracts § 238 emt. b (1979).

offer ofproof. (17c) Procedure. A presentation ofevidence for the record (but outside the jury's presence) usu. made after the judge has sustained an objection to the admissibility of that evidence, so that the evidence can be preserved on the record for an appeal of the judge's ruling. - An offer of proof, which may also be used to persuade the court to admit the evidence, consists of three parts: (1) the evidence itself, (Z) an explanation of the purpose for which it is offered (its relevance), and (3) an argument supporting admissibility. Such an offer may include tangible evidence or testimony (through

questions and answers, a lawyer's narrative description, or an affidaVit). Fed. R. Evid. 103(a)(2). Also termed avowal. [Cases: Criminal Law C=>670; Federal Civil Procedure C'J2013; Trial C~':::>44.] offer of settlement. See OFFER OF COMPROMISE. offeror (ah-f30.1.] ministerial office. An office that does not include authority to exercise judgment, only to carry out orders given by a superior office, or to perform duties or acts required by rules, statutes, or regulations. [Cases: Officers and Public Employees C=> 103.] office ofhonor. An uncompensated public position of considerable dignity and importance to which public trusts or interests are confided. [Cases: Officers and Public Employees Office action. Patents & Trademarks. A patent exam­ iner's communication with a patent applicant, usu. to state the reasons for denying an application. [Cases: Patents C=> 108.] advisory Office action. An office action in which the patent examiner replies to an applicant's response following final rejection of the application. - An advisory action addresses the status of an amendment made in the applicant's response to the final rejection, indicates the status of the claims for appeal, addresses an affidavit or exhibit, or responds to a request for reconsideration. - Also termed advisory action. final Office action. A patent examiner's determina­ tion that an application is not allowable. _ The appli­ cant may file a continuation application, appeal the decision, or request continued prosecution. Cf. first office action. [Cases: Patents ~-:: 108.] first Office action. A patent examiner's initial reply to a patent application. - Ifthe examiner's first report is a rejection of all or most of the application's claims, it is termed a shotgun rejection. To avoid abandoning the prosecution, the applicant must respond by answer­



1191

ing the examiner's reasons for rejection, amending the claims, or both. Cf. final office action. office audit. See AUDIT. office-block ballot. See BALWT (4). office classification. See CLASSIFICATION OF PATENTS. office expense. See OVERHEAD. office grant. See GRANT. office hours. Military law. See nonjudicial punishment under PUNISHMENT. office lawyer. See OFFICE PRACTITIONER. office of child-support enforcement. Family law. A state or federal agency established under Title IV(D) of the Social Security Act to help custodial parents collect child support. 42 USCA § 651 et seq .• State offices of child-support enforcement generally come under the aegis of the Department of Human Resources. The federal Office of Child Support Enforcement has established the Parent-Locator Service. [Cases: Child Support C=>465.] Office of Civilian Health and Medical Programs of the Uniformed Services. A unit in the U.S. Department of Defense responsible for administering a civilian health and medical care program for the spouses and dependent children of active members of the armed forces and for retired military personnel, their spouses and children. Abbr. OCHAMPUS. [Cases: Armed Services C=> 50.] Office of Commuuity Planning and Development. A unit in the U.S. Department of Housing and Urban Development responsible for administering grant programs to help communities plan and finance their growth and development, increase their capacity to govern, and provide shelter and services for homeless people. - Abbr. CPD. Office of Counterintelligence. An office in the U.S. Department of Energy responsible for conducting counterintelligence programs involving industrial intelligence activities of foreigners and foreign gov­ ernments. Office of Domestic Preparedness. A unit in the U.S. Department of Homeland Security responsible for helping state and local governments train and equip emergency responders, plan and conduct disaster drills, and offer other technical assistance to prevent, plan for, and respond to acts of terrorism .• The Office was transferred from the U.S. Department of Justice in 2003. - Abbr. ODP. Office of Enrollment and Discipline. Patents. The division of the U.S. Patent and Trademark Office charged with licensing patent attorneys and patent agents, and with hearing complaints involving their misconduct. • The office is authorized to sanction prac­ titioners, and to suspend or disbar them from practice before the PTO. Its authority is concurrent with state disciplinary procedures. - Abbr. OED. [Cases: Patents Cc:::'97.]

Office of Initial Patent Examination

Office of Environmental Quality. An office in the Exec­ utive Office of the President responsible for supporting the Council on Environmental Quality. Abbr.OEQ. See COUNCIL ON ENVIRONMENTAL QUALITY. Office of Fair Housing and Equal Opportunity. A unit in the U.S. Department of Housing and Urban Devel­ opment responsible for administering the fair-housing laws and regulations that prohibit discrimination in public and private housing. Abbr. FHEO. [Cases: Civil Rights C=> 1302.] Office of Federal Contract Compliance Programs. lhe division of the Employment Standards Administration in the U.S. Department of Labor responsible for enforc­ ing contractors' compliance with Executive Order 11246, which prohibits job discrimination on the basis of race, color, gender, religion, or national origin. Abbr. OFCCP. See EMPLOYMENT STANDARDS ADMINIS­ TRATION; DEPARTMENT OF LABOR. [Cases: Civil Rights C=> 1302, 1503.] Office of Federal Housing Enterprise Oversight. A unit in the U.S. Department of Housing and Urban Development responsible for overseeing the financial safety and soundness of the Federal National Mortgage Association (Fannie Mae) and the Federal Home Loan Mortgage Corporation (Freddie Mac). Abbr. OFHEO. Office of Government Ethics. An independent agency in the executive branch responsible for issuing rules and regulations about ethical conduct and financial disclosure, providing training in ethics, monitoring the ethics of practices in departments and agencies, and giving guidance on matters ofethics.• The agency was established under the Ethics in Government Act of 1978 and became a separate agency in 1988. Abbr. OGE. [Cases: United States (::::::>41.] Office of Healthy Homes and Lead Hazard Control. A unit office in the U.S. Department of Housing and Urban Development responsible for informing the public about the dangers of lead poisoning, esp. by lead-based paint; developing methods ofdetection and abatement; encouraging states and local governments to develop prevention programs; and implementing the Department's Healthy Home Initiative to warn the public of other potential household hazards. Abbr. OHHLHC. office of honor. See OFFICE. Office of Housing. A unit in the U.S. Department of Housing and Urban Development responsible for administering aid for building and financing new and rehabilitated housing and for preserving existing hOUSing. Office of Initial Patent Examination. The section of the U.S. Patent and Trademark Office that determines whether a new patent application is in the correct form, whether the claims are dependent or independent, how much the application fee should be, and to which examining group the application should be assigned. Abbr. OIPE. [Cases: Patents (:= 104.]

Office of Labor-Management Standards

1192

Office of Labor-Management Standards. The division of the Employment Standards Administration in the U.S. Department of Labor responsible for enforcing the Labor-Management Reporting and Disclosure Act of 1959, which establishes standards for labor-union management and financial operations. _ The Act sets out a list of union-members' rights, including the right to fair elections of union leaders, the right to know about the union's administrative policies and finan­ cial transactions, and the right to have union funds safeguarded. - Abbr. OLMS. See EMPLOYMENT STAN­ DARDS ADMINISTRATION.

Office of Management and Budget. An office in the Executive Office ofthe President responsible for helping the President prepare the annual federal budget and supervising its administration. _ It was originally established by Reorganization Plan No.1 of1939 as the Bureau of the Budget. - Abbr. OMB. [Cases: United States (;::;:)79.] Office of Medical Services. A unit in the U.S. Depart­ ment ofState responsible for providing primary health­ care services for the Department's overseas employees and their eligible family members. - Abbr. MED. Office of National Drug Control Policy. An office in the Executive Office of the President responsible for coordinating efforts at federal, state, and local levels to control illegal drug abuse and for devising national antidrug activities. - The office was created by the National Narcotics Leadership Act of 1988.21 USCA §§ 1701-1713. - Abbr. ONDCP. Office of Oceanic and Atmospheric Research. See NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRA­ TION.

Office of Passport Services. See BUREAU OF

CONSULAR

AFFAIRS.

Office of Personnel Management. The independent federal agency that administers the personnel system of the government by helping agencies recruit and evaluate employees; manage retirement and health­ benefit systems; coordinate temporary assignments; conduct investigations; and develop leadership in the federal executive service. _ The agency was established by Reorganization Plan No.2 of 1978 and given various functions of the former U.S. Civil Service Commission by Executive Order 12107 of 1978. - Abbr. OPM. See CIVIL SERVICE COMMISSION. [Cases: Officers and Public Employees (;::;: 11.8.J Office of Policy Development. An office in the Execu­ tive Office of the President comprising the Domestic Policy Council and the National Economic Council. ­ It was established in 1993 by Executive Order 12859. Abbr.OPD. Office of Private Sector Liaison. A unit in the U.S. Department of Homeland Security responsible for working with individual businesses through trade asso­ ciations and other nongovernmental organizations on matters of security.

Office of Protocol. A unit in the U.S. Department of State responsible for advising the President, the Vice President, the Secretary of State, and other U.S. officials on matters of custom and decorum, and for planning and hosting state dinners and other affairs, esp. involv­ ing foreign heads of state and other diplomats. - The Office also manages the Blair House, where diplomatic visitors often stay. It is run by the Chief of Protocol. Office of Public and Indian Housing. A unit in the U.S. Department of Housing and Urban Development responsible for providing technical assistance and operating subsidies to public-housing agencies and Indian housing authorities in developing low-income housing. - Abbr. PlH. Office of Science and Technology Policy. An office in the Executive Office of the President responsible for advising the President on scientific, engineering, and technological development and for coordinat­ ing research and development programs. - The office was created by the National Science and Technology Policy, Organization, and Priorities Act of 1976. ­ Abbr.OSTP. Office of Special Counsel. An independent federal agency that investigates activities prohibited by the civil-service laws, rules, and regulations and, if the investigation warrants it, litigates the matter before the Merit Systems Protection Board. _ The agency was established by Reorganization Plan No.2 of 1978. Abbr. OSc. [Cases: Officers and Public Employees 72.23.] Office of Special Investigations. A component of the criminal division of the Department of Justice that identifies and investigates suspected perpetrators of human-rights violations abroad, after the suspects have entered, or tried to enter, the United States. - Originally created in 1948 to seek out Nazi and Axis persecutors, the Office's mission has since been expanded to include other transgressors of human rights. Abbr.OS1. Office of State and Local Government Coordination. A unit in the U.S. Department of Homeland Security responsible for coordinating security matters with state and local governments. Office of Surface Mining Reclamation and Enforce­ ment. A unit in the U.S. Department of the Interior responsible for protecting against the adverse effects of surface coal mining by enforcing laws relating to surface mining and restoration and by assisting states and local governments, which have primary responsi­ bility in this area. - Abbr. OSM. Office of Tax-Shelter Analysis. An office in the U.S. Internal Revenue Service responsible for identifying and investigating questionable tax shelters. - The office was created in 2000. - Abbr. OTSA. Office of Technology Assessment. A former office in the legislative branch of the federal government responsible for analyzing public-policy issues relating to science and technology. - The Office was active from 1972 to 1995. Abbr.OTA.

1193

Office of Technology Policy. See TECH",OLOGY

officer ADMIN­

ISTRATION.

Office of the Comptroller of the Currency. An office in the U.S. Department of the Treasury responsible for regulating approximately 2,600 national banks by examining them; approving or denying applications for bank charters, branches, or mergers; closing banks that fail to follow rules and regulations; and regulating banking practices. Abbr. OCe. [Cases: Banks and Banking (;::::c235.] Office of the United States Trade Representative. An office in the Executive Office of the President respon­ sible for setting and administering overall trade policy. • It was established under Reorganization Plan No.3 of 1979. 19U5CA§2171. Office of Thrift Supervision. An office in the U.S. Department of the Treasury responsible for regulating and examining thrift institutions to ensure that they are financially sound. Abbr.OTS. [Cases: Banks and Banking (;::::)290,309,451; Building and Loan Associa­ tions (:::::>2.1, 42.] Office of Workers' Compensation Programs. The division of the Employment Standards Administra­ tion in the U.S. Department of Labor responsible for processing and adjudicating claims under the Federal Employees' Compensation Act, the Longshore and Harbor Workers' Compensation Act, the Black Lung Benefits Reform Act, and similar worker-benefits statutes and regulations. Abbr. OWCP. See EMPLOY­ MENT STANDARDS ADMINISTRATION. [Cases: Workers' Compensation (::::) 1076.] office practice. (1872) A law practice that primarily involves handling matters outside of court, such as negotiating and drafting contracts, preparing wills and trusts, setting up corporations and partnerships, and advising on tax or employment issues; a transactional­ law practice. office practitioner. (1933) A lawyer who does not litigate; an attorney whose work is accomplished primarily in the office, without court appearances. - Also termed office lawyer; transactional lawyer. officer. (14c) L A person who holds an office of trust, authority, or command.• In public affairs, the term refers esp. to a person holding public office under a national, state, or local government, and authorized by that government to exercise some specific function. In corporate Jaw, the term refers esp. to a person elected or appointed by the board of directors to manage the daily operations of a corporation, such as a CEO, presi­ dent, secretary, or treasurer. Cf. DIRECTOR (2). lCases: Officers and Public Employees (;::::J 1.] acting officer. One performing the duties ofan office usu. temporarily - but who has no claim of title to the office. [Cases: Officers and Public Employees 77.]

administrative officer. I. An officer of the executive department of government, usu. of inferior rank. [Cases: Officers and Public Employees (;::::c 1.] 2. A

ministerial or executive officer, as distingUished from a judicial officer. 3. Family law. An official, other than a judge, who is appointed to preside over child­ support matters. See CHILD-SUPPORT-ENFORCEMENT AGENCY. Cf. MASTER (2); JUDGE.

attendance officer. See TRUANCY OFFICER. chief executive officer. See CHIEF EXECUTIVE OFFICER.

constitutional officer. A government official whose office is created by a constitution, rather than by a statute; one whose term of office is fixed and defined by a constitution. [Cases: States (;::::c46.] corporate officer. An officer of a corporation, such as a CEO, president, secretary, or treasurer. [Cases: Cor­ porations (;::::c296.] county officer. An officer whose authority and jurisdic­ tion are confined to the limits of the county served. [Cases: Counties (;::::c61.] court officer. See OFFICER OF THE COURT. de facto officer. See officer de facto. de jure officer. See officer de jure. escrow officer. See escrow agent under AGENT (2). executive officer. See EXECUTIVE (2). fiscal officer. 1. 1be person (such as a state or county treasurer) charged with the collection and distribu­ tion of public money. [Cases: Counties (;::::c90.]2. The person (such as a chief financial officer) whose duties are to oversee the financial matters of a corporation or business. health officer. See HEALTH OFFICER. hearing officer. 1. ADMINISTRATIVE-LAW lUDGE. 2. See judicial officer (3). inferior officer. 1. An officer who is subordinate to another officer. 2. A United States officer appOinted by the President, by a court, or by the head of a federal department.• Senate confirmation is not required. See United States officer. [Cases: United States 35.) judicial officer. (l7c) 1. A judge or magistrate. [Cases: Judges (:::J") 1; Justices of the Peace (;=: 1; United States Magistrates (;::::c 11.] 2. Any officer of the court, such as a bailiff or court reporter. [Cases: Courts 55-58.] 3. A person, usu. an attorney, who serves in an appointive capacity at the pleasure of an appointing judge, and whose actions and decisions are reviewed by that judge. - Also termed magistrate; referee; special master; commissioner; hearing officer. juvenile officer. (J 91 1) A juvenile-court employee, sometimes a social worker or probation officer, who works with the judge to direct and develop the court's child-welfare work. - Also termed county agent. [Cases: Courts Infants C:::> 17,208.] law-enforcement officer. See LAW-ENFORCEMENT OFFI­ CER.

legislative officer. 1. A member of a federal, state, or municipal legislative body. [Cases: Municipal Corpo­ rations C=>80; States C~::>28; United States C=>7.l.]2. A government official whose duties relate primarily to the enactment oflaws, such as a federal or state senator, representative, or assembly member. - State and federal constitutions generally restrict legisla­ tive officers' duties to the enactment oflegislation. But legislative officers occasionally exercise judicial func­ tions, such as presenting or hearing cases of impeach­ ment of other government officers. ministerial officer. An officer who primarily executes mandates issued by the officer's superiors .• One who performs specified legal duties when the appropriate conditions have been met, but who does not exercise personal judgment or discretion in performing those duties. [Cases; Municipal Corporations C"=> 123.] municipal officer. A person who occupies a municipal office usu. mandated by statute or charter and who may be required to take an oath and exercise sovereign authority in carrying out public duties, with compensation incident to the office irrespective of the actual services rendered. [Cases: Municipal Corpora­ tions ~'-=> 123.J officer de facto (di fak-toh). 1. An officer who exercises the duties ofan office under color of an appointment or election, but who has failed to qualify for office for anyone ofvarious reasons, as by being under the required age, having failed to take the oath, having not furnished a required bond, or having taken office under a statute later declared unconstitutional. [Cases: Officers and Public Employees C=>39.)2. Cor­ porations. One who is acting under color of right and with apparent authority, but who is not legally a cor­ porate officer.• The corporation is bound by all acts and contracts of an officer de facto in the same way as it is with those of an officer de jure. Also termed de facto officer. [Cases; Corporations C=>289.] officer de jure (di juur-ee). L An officer who exercises the duties of an office for which the holder has ful­ filled all the qualifications. [Cases: Officers and Public Employees 35.J probation officer. A government officer who supervises the conduct of a probationer. [Cases: Courts C=>55; Sentencing and Punishment C=> 1988.] recording officer. See SECRETARY (3).

safety officer. An OSHA employee responsible for investigating the safety practices and procedures at a place of business. See OCCUPATIONAL SAFETY AND HEALTH ACT OF 1970. [Cases; Labor and Employment state officer. L A person whose authority or jurisdic­ tion extends to the general public or state as a whole, as distinguished from an officer whose authority and jurisdiction are confined to the limits of a particu­ lar political subdivision. [Cases; States C=44.] 2. An officer exercising authOrity under a state rather than the federal government. subordinate officer. 1. An officer ranking below and performing under the direction of another officer. 2. An independent officer subject only to statutory direction. truancy officer. See TRUANCY OFFICER. trust officer. A trust-company official responsible for administering funds held by the company as a trustee. United States officer. An officer appointed under the authority of the federal government; specif., an officer appointed in the manner described in Article II, section 2, of the U.S. Constitution. [Cases; United States 2. Military law. One who holds a commission in the armed services, or a military post higher than that of the lowest ranks; a person who has a command in the armed forces. Also termed military officer. [Cases: Armed Services C=>6.] brevet officer (brd-vet or brev-it). A military officer who holds a nominal rank above that for which the person is paid. [Cases: Armed Services C=>8.) commissioned officer. An officer in the armed forces who holds grade and office under a presidential com­ mission. [Cases; Armed Services C=>6.] general officer. A military officer whose command extends to a body of forces composed of several regi­ ments. - Examples are generals, lieutenant-gener­ als, major-generals, and brigadiers. [Cases; Armed Services C=>8.] legal officer. 1. The officer responsible for handling military justice within a command. 2. 1he adviser and assistant to a commanding officer on military­ law matters. 3. Any commissioned officer of the Navy, Marine Corps, or Coast Guard who has been desig­ nated to perform legal duties for a command. noncommissioned officer. An enlisted person in the Army, Air Force, or Marine Corps in certain pay grades above the lowest pay grade. _ Examples are sergeants and corporals. officer ofthe day. An officer who has charge, for the time being, of the guard, prisoners, and police of a military force or camp. - Also termed orderly officer. officer of the guard. A commissioned officer whose detail is to command the guard of a military force

or camp.• The officer of the guard is under the command of the officer of the day. orderly officer. See officer ofthe day. petty officer. An enlisted person in the Navy or Coast Guard with a pay-grade of E-4 or higher. preliminary-inquiry officer. The person, usu. an officer, who conducts a preliminary inquiry. presiding officer. 1. The president of the court in a special court-martial that does not have a military judge. 2. In a court-martial with a military judge, the military judge. [Cases: Military Justice (;::::881.] 3. An officer who presides, esp. over a civilian court or deliberative assembly. See CHAIR (1); PRESIDE. superior commissioned officer. A commissioned officer who is superior in command or rank. warrant officer. 1. A person who holds a commission or warrant in a warrant-officer grade .• A warrant officer's rank is below a second lieutenant or ensign but above cadets, midshipmen, and enlisted person­ nel. 2. See SERGEA:-.1T-AT-ARMS (4). officer of the court. (l6c) A person who is charged with upholding the law and administering the judicial system.• Typically, officer ofthe court refers to a judge, clerk, bailiff, sheriff, or the like, but the term also applies to a lawyer, who is obliged to obey court rules and who owes a duty of candor to the court. - Also termed court officer. [Cases: Courts C=>55-58.] officer of the peace. See PEACE OFFICER. officer's report. See REPORT. official (J-fish-JI), adj. (16c) 1. Of or relating to an office or position of trust or authority . 2. Authorized or approved by a proper authority 1.]2. One authorized to act for a corpo­ ration or organization, esp. in a subordinate capacity. [Cases: Corporations C:::"303.] 3. (usu. cap.) OFFICIAL PRINCIPAL.

official bond. See BOND (2). official-capacity suit. See SUIT. official corruption. See official misconduct under MIS­ CONDUCT.

Official Gazette. Patents & Trademarks. Either of two weekly publications of the U.S. Patent and Trademark Office: one for patents, publishing abstracts of new patents; and one for trademarks, publishing samples of trademarks proposed for registration. Abbr.OG. official liability. See LIABILITY. official misconduct. See MISCONDUCT. official newspaper. See NEWSPAPER. official principal. (usu. cap.) Eccles. law. A person appointed by an archbishop, bishop, or archdeacon to

exercise jurisdiction in and preside over an ecclesiasti­ cal court. Sometimes shortened to official. official privilege. See PRIVILEGE (1). official report. See REPORT (3). official shorthand writer. See COURT REPORTER (1). official use. See USE (4). officina brevium (aw-fJ-SI-nd bree-vee-dm). [Latin "workshop of writs"] Hist. OFFICINA JUSTITIAE. officina justitiae (aw-fd-sI-nd jJs-tish-ee-ee). [Latin "workshop of justice"] Hist. The court of chancery, where the king's writs were issued. - Also termed officina brevium. See CHANCERY. officio. See EX OFFICIO. officious intermeddler (J-fish-Js). (18c) A person who confers a benefit on another without being requested or having a legal duty to do so, and who therefore has no legal grounds to demand restitution for the benefit conferred. Sometimes shortened to intermeddler. ­ Also termed (archaically) volunteer. [Cases: Implied and Constructive Contracts officiousness (d-fish-dS-n 129(3).] one-action rule. In debtor-creditor law, the princi­ ple that when a debt is secured by real property, the creditor must foreclose on the collateral before pro­ ceeding against the debtor's unsecured assets. [Cases: Mortgages C=>218.4, 337, 411.) one-book rule. The requirement or practice that only one version of the Sentencing Guidelines be used to calculate alJ aspects of a defendant's sentence. [Cases: Sentencing and Punishment 76.] one-half plus one. See HALF PLUS ONE. ISO-day rnle. Criminal procedure. 1. A rule that, in some jurisdictions, allows a person charged with a felony to be released on personal recognizance ifthe person has

one-month liquidation

been in jail for 180 days without being brought to trial, and if the delay has not resulted from the defendant's own actions. [Cases: Bail 40.] 2. A rule requiring all pending charges against a prison inmate to be brought to trial in 180 days or to be dismissed with prejudice. [Cases: Criminal Law 577.5.] one-month liqUidation. See LIQUIDATION. one-party consent rule. The principle that one party to a telephone or other conversation may secretly record the conversation.• This principle applies in most but not all states. [Cases: Telecommunications (,~ 1440.] one-person, one-vote rule. (1965) Constitutional law. The principle that the Equal Protection Clause requires legislative voting districts to have about the same pop­ ulation. Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362 (1964). Also termed one-man, one-vote rule. See APPORTIONMENT. [Cases: Constitutional Law 3656.] onerando pro rata portione. See DE ONERANDO PRO RATA PORTIONE.

onerare (on-;)-rair-ee), vb. [Latin] Hist. To burden or load. onera realia (on-;)r-~ ree-ay-Iee-~). [Law Latin] Scots law. Real burdens. "Onera realia ... are burdens or encumbrances affecting land, and exigible from it. They are distinguished from personal burdens, which only affect and are exigible from the person upon whom they lie. A single example may illus· trate the nature of both. It is a common enough practice, when lands are sold, for the seller not to insist on payment of the full price at the time of the sale. but to allow a part of the price to remain on the lands as a burden. If the balance so left be declared ... to be a real lien ... it is a burden for which the lands may be attached and sold, into whose possession soever they may come. But if the burden of payment of the remainder of the price be laid upon the purchaser alone. and not upon the lands, then the burden is personal, and a subsequent purchaser from him incurs no liability therefor. the lands not being affected. John Trayner, Trayner's Latin Maxims 423 (4th ed. 1894).

onerari non (on-~-rair-I non). [Law Latin] Hist. Ought not to be charged. _ In pleading, these words were used by a defendant to begin a plea in a debt action. Cf. ACTIO NON. oneratio (on-;)-ray-shee-oh). [Law Latin] Hist. A cargo or lading. oneris ferendi (on-a-ris fa-ren-dl). [Latin] Roman law. Of bearing a weight or burden. See servitus oneris ferendi under SERVITUS; JUS ONERIS FERENDI; PARIES ONERI FERENDa, UTI NUNC EST, ITA SIT.

onerous (oh-n;)r-as or on- 134; Searches and Seizures open forum. 1. GOOD OF THE ORDER. 2. PUBLIC FORUM. open guaranty. See continuing guaranty under GUARANTY.

1200

opening a judgment

opening a judgment. A court's grant of a motion for a rehearing on the merits but keeping the court's decision in effect. [Cases: Judgment~336.] opening bidding. See OPENING THE BIDDING. opening brief. See BRIEF. opening brief on the merits. See opening brief under BRIEF.

opening statement. (l848) At the outset of a trial, an advocate's statement giving the fact-finder a preview of the case and of the evidence to be presented. ­ Although the opening statement is not supposed to be argumentative, lawyers purposefully or not often include some form of argument. The term is thus some­ times referred to as opening argument. [Cases: Criminal Law ~2067; Federal Civil Procedure ~ 1971; Trial (::::::>lO9.]

opening the bidding. In a sheriff's sale of real property, the unethical practice of setting aside the concluded sale to accept a better post-sale offer. - Also termed opening bidding. [Cases: Execution ~247.] open letter of credit. See LETTER OF CREDIT. open lewdness. See LEWDNESS. open listing. See LISTING (1). open market. See MARKET. open-meeting law. See SUNSHINE LAW. open memorandum. See MEMORANDUM. open microphone. See GOOD OF THE ORDER. open mortgage clause. See MORTGAGE CLAUSE. open nominations. Parliamentary law. To begin taking nominations from the floor upon passage of a motion. open order. See ORDER (8). open-perils policy. See INSURANCE POLICY. open policy. See unvalued policy under INSURANCE POLICY.

open possession. See notorious possession under posSESSION.

open price. See PRICE. open-public-records act. See OPEN-RECORDS ACT. open-records act. A statute providing for public access to view and copy government records maintained by public agencies. - Also termed open-public-records act. open seas. See high seas under SEA. open season. (1846) A specific time of year when it is legal to hunt or catch game or fish. [Cases: Fish Game open session. See SESSION (1). open shop. See SHOP. open-shop-dosed-shop operation. See DOUBLE­ BREASTED OPERATION.

open source, adj. (1998) Of or related to software that includes human-readable source code and can be freely revised. . open-source license. See LICENSE. open-source software. (1998) Software that is usu. not sold for profit. includes both human-readable source code and machine-readable object code, and allows users to freely copy, modify, or distribute the software. • Even though open-source software is made widely available for free. it may be protected by federal trade­ mark law. See Planetary Motion Inc. v. Techplosion Inc .• 261 F.3d 1188 (11th Cir. 2001). open space. (17c) Undeveloped (or mostly undeveloped) urban or suburban land that is set aside and perma­ nently restricted to agricultural, recreational, or con­ servational uses.• The land may be publicly or privately owned. Access may be restricted or unrestricted. Open spaces are not necessarily in a natural state: the term includes land used for public parks, gardens, farms, and pastures. But it does not include structures such as parking lots, swimming pools, or tennis courts. [Cases: Environmental Law ~43, 44.] open town. Int'llaw. An undefended city in a combat zone that is laid open to the grasp of the attacking forces. open union. See UNION. open verdict. See VERDICT. operability. Patents. The ability of an invention to work as described. _ A patent examiner may challenge the operability of an invention and require some proof, such as a demonstration of a working model. [Cases: Patents operating agreement. Oil &- gas. A contract among owners of the working interest in a prodUcing oil or gas well setting forth the parties' agreements about drilling, development, operations, and accounting. [Cases: Mines and Minerals ~ 109.] operating a motor vehicle under the influence. See DRIVING UNDER THE INFLlJENCE.

operating a motor vehicle while intoxicated. See DRIVING UNDER THE INFLUENCE.

operating-cost ratio. The ratio between the net sales of a business and its operating costs. operating earnings. See EARNINGS. operating expense. See EXPENSE. operating income. See ordinary income (1) under INCOME.

operating interest. See WORKI::-.1G INTEREST. operating lease. See LEASE. operating profit. See PROFIT (1). operating under the influence. See DRIVING UNDER THE INFLUENCE.

operating while intoxicated. See DRIVING INFLUENCE.

UNDER THE

1201

opinion

operational, adj. (1922) 1. Engaged in operation; able to function. 2. MinisteriaL operation oflaw. (17c) The means by which a right or a liability is created for a party regardless of the party's actual intent 103.]

adVisory opinion. (1837) 1. A nonbinding statement by a court of its interpretation of the law on a matter submitted for that purpose.• Federal courts are constitutionally prohibited from issuing advisory opinions by the case-or-controversy requirement, but other courts, such as the International Court of Justice, render them routinely. See CASE-DR-CONTRO­ VERSY REQUlREMENT. [Cases: Constitutional LawG=> 2600-2609.] 2. A written statement, issued only by an administrator of an employee benefit plan, that inter­ prets ERISA and applies it to a specific factual situa­ tion.• Only the parties named in the request for the opinion can rely on it, and its reliability depends on the accuracy and completeness of all material facts. concurring opinion. See CONCURRENCE (3). depublished opinion. An intermediate appellate court's opinion that has been struck from the official reports, esp. by the highest court. [Cases: Courts 107.] dissenting opinion. (1817) An opinion by one or more judges who disagree with the decision reached by Also the majority. - Often shortened to dissent. termed minority opinion. extrajudicial opinion. 1. An opinion that is beyond the court's authority to render. • Such opinions are void. 2. A judge's personal or scholarly opinion expressed in a medium other than a judicial opinion. majority opinion. (1882) An opinion joined in by more than half the judges considering a given case. Also termed main opinion. memorandum opinion. (1912) A unanimous appel­ late opinion that succinctly states the decision of the court; an opinion that briefly reports the court's con­ clusion, usu. without elaboration because the decision follows a well-established legal principle or does not relate to any point of law. Also termed memo­ randum decision; memorandum disposition; (slang) memdispo. [Cases; Courts G=> 103, 107.] minority opinion. See dissenting opinion. per curiam opinion (pdr kyoor-ee-dm). (1860) An opinion handed down by an appellate court without identifying the individual judge who wrote the opinion. - Sometimes shortened to per curiam. [Cases; Courts 103,107.] ''The most controversial form of summary disposition is a per curiam opinion that simultaneously grants certiorari and disposes of the merits at some length, discussing both the facts and the issues involved. The result is usually a reversal of the Judgment below .... The parties are given no opportunity to file briefs on the merits or to argue orally before the Court. Indeed, they are given no forma! notice whatever of the Court's intention to dispose of the certiorari papers in this manner ...." Robert L. Stern et aI., Supreme Court Practice 320 (8th ed. 2002).

plurality opinion. (1908) An opinion lacking enough judges' votes to constitute a majority, but receiving more votes than any other opinion. [Cases; Courts (::::>90(2), 102.] qualified opinion. See QUALIFIED OPINION.

opinion evidence

seriatim opinions (seer-ee-ay-tim). (1832) A series of opinions written individually by each judge on the bench, as opposed to a single opinion speaking for the court as a whole. slip opinion. 1. A court opinion that is published indi­ vidually after being rendered and then collectively in advance sheets before being released for publica­ tion in a reporter.• Unlike an unpublished opinion, a slip opinion can usu. be cited as authority. - Also termed slipsheet. Cf. ADVANCE SHEETS. [Cases: Courts 107.] 2. Archaic. A preliminary draft of a court opinion not yet ready for publication. - Also termed slip decision. Cf. unpublished opinion. unpublislted opinion. (1849) An opinion that the court has specifically designated as not for publication .• Court rules usu. prohibit citing an unpublished opinion as authority. Such an opinion is considered binding only on the parties to the particular case in which it is issued. Cf. slip opinion. [Cases: Courts (;::::) 107.] 2. A formal expression of judgment or advice based on an expert's special knowledge; esp., a document, usu. prepared at a client's request, containing a lawyer's understanding of the law that applies to a particular case. Also termed opinion letter. 'The essence of a lawyer's job is to obtain the facts and the law with due diligence and then to give advice. But, strangely, no controlling definition has evolved for what is an 'opinion.' The lack of a definition is not crucial for some purposes. On the other hand, a definition is vital in other areas; for example, to determine within a law firm when peer review is necessary ...." 8 Arnold S. Jacobs, Opinion Letters in Securities Matters § 3, at Intro-12 (1998).

adverse opinion. An outside auditor's opinion that a company's financial statements do not conform with generally accepted accounting principles or do not accurately reflect the company's financial position. audit opinion. A certified public accountant's opinion regarding the audited financial statements of an entity. comfort opinion. Securities. An attorney's written opinion that there is no reason to believe that the registration statement contains any material misrep­ resentations or omissions that would violate section 11 of the Securities Act of 1933.• lhe attorney usu. participates in the registration statement's prepara­ tion and confers with the securities issuer's represen­ tatives, underwriters, and public accountants before writing the opinion. The comfort opinion's purpose is to reassure the parties that the registration state­ ment complies with securities laws; it is not part of the statement and is usn. not included. coverage opinion. A lawyer's opinion on whether a par­ ticular event is covered by a given insurance policy. infringement opinion. Patents. A patent attorney's opinion about the probable outcome of an infringe­ ment hearing or trial on whether a particular product or process infringes one or more claims of another's patent. [Cases: Patents (;:::::>227.]

1202

legal opinion. (18c) A written document in which an attorney proVides his or her understanding of the law as applied to assumed facts .• The attorney may be a private attorney or attorney representing the state or other governmental entity. Private attorneys fre­ quently render legal opinions on the ownership ofreal estate or minerals, insurance coverage, and corporate transactions. A party may be entitled to rely on a legal opinion, depending on factors such as the identity of the parties to whom the opinion was addressed, the nature of the opinion, and the law governing the opinion. See coverage opinion. patentability opinion. Patents. A patent attorney's or patent agent's opinion on the patent office's probable holding about the allowability of a patent application's claims.• The opinion is almost a mini-examination report because it is based on consideration of the invention's subject matter, prior art, etc. title opinion. (1927) A lawyer's or title company's opinion on the state of title for a given piece of real property, usu. describing whether the title is clear and marketable or whether it is encumbered. See TITLE SEARCH.

unqualified opinion. An audit opinion given by an accountant who is satisfied that the financial state­ ments reviewed were fairly presented and consis­ tent with the previous year, and that the audit was performed in accordance with generally accepted auditing standards. validity opinion. Patents. A patent attorney's opinion about the likelihood that a patent or patent claim will be invalidated in light of evidence suggesting obvi­ ousness, lack of invention, unenforceability, etc. 3. A person's thought, belief, or inference, esp. a wit­ ness's view about a facts in dispute, as opposed to personal knowledge of the facts themselves. Also termed (in sense 3) conclusion. See opinion evidence under EVIDENCE. expert opinion. An opinion offered by a witness whose knowledge, skill, experience, training, and education qualify the witness to help a fact-finder understand the evidence or decide a factual dispute. See expert witness under WITNESS. fixed opinion. (1807) A bias or prejudice that disquali­ fies a potential juror. [Cases: Jury opinion evidence. See EVIDENCE. opinion letter. See OPINION (2). opinion rule. (1896) Evidence. The principle that a witness should testify to facts, not opinions, and that a nonexpert witness's opinions are often exclud­ able from evidence .• Traditionally, this principle is regarded as one of the important exclusionary rules in evidence law. It is based on the idea that a witness who has observed data should provide the most tactual evidence possible, leaVing the jury to draw inferences and conclusions from the evidence. Under this system, the witness's opinion is unnecessary. Today, opinions

1203

option

are admissible ifrationally based on a witness's percep­ tions and helpful to the fact-finder. [Cases: Criminal Law C::=>448; Evidence e:-~)471, 505.] "This rule [the opinion rule} is an historical blunder, for the early cases excluding 'opinion' meant a belief by a person who had personally seen and known nothing, and was therefore not qualified to speak; whereas the modern rule applies it to witnesses who have had personal observation as a basis for their inference. Moreover, it is a senseless rule, for not once in a thousand times can the observed data be exactly and fully reproduced in words. Still further, no harm could be done by letting the witness offer his inference, except perhaps the waste of a moment's time, whereas the application of the rule wastes vastly more time. And finally the rule is so pedantically applied by most courts that it excludes the most valuable testimony, such as would be used in all affairs of life outside a court room." John H. Wigmore, A Students' Textbook of the Law of Evidence 156 (1935).

"The [opinion] rule in its stark simplicity might be inter· preted as excluding all value judgments, that is to say all statements not being factual propositions susceptible of some sort of empirical proof or disproof. The rule, if it is to be given any purely logical meaning at all, must be interpreted as excluding at least all inferences drawn from perceived data. Even if value judgments are saved by construing the rule as having application only to factual propositions, the rule would seem to purport to exclude all such propositions in the formulation of which inference by the witness has played some part." Zelman Cowen, Essays on the Law of Evidence 162 (1956).

opinion testimony. See TESTIMONY. opinion work product. See WORK PRODUCT. OPM. abbr. OFFICE OF PERSONNEL MANAGEMENT. oppignorate ( 3879.] opposer. 1. Intellectual property. One who formally seeks to prevent the grant of a patent or the registration of a trademark. [Cases: Patents 104; Trademarks C::=> 1294.] 2. Hist. APPOSER. opposition. 1. Patents. An action or procedure by which a third party can request a patent application's refusal or an issued patent's annulment. _ Most countries allow opposition in some form. [Cases: Patents C::=> 104.] 2.

Trademarks. A procedure by which a third party can contest a trademark after it has been approved but before it has been placed on the Principal Register. Cf. CANCELLATION. [Cases: Trademarks C::=> 1290.] oppression. (14c) 1. The act or an instance of unjustly exerciSing authority or power. 2. An offense con­ sisting in the abuse of discretionary authority by a public officer who has an improper motive, as a result of which a person is injured. - This offense does not include extortion, which is typically a more serious crime. [Cases: Officers and Public Employees C::=> 12l.] 3. Contracts. Coercion to enter into an illegal contract. - Oppression is grounds for the recovery of money paid or property transferred under an illegal contract. See DURESS; UNCONSCIONABILITY. [Cases: Contracts C::=> 138(3), 139.] 4. Corporations. Unfair treatment of minority shareholders (esp. in a close corporation) by the directors or those in control of the corporation. ­ Also termed (in sense 4) shareholder oppression. See FREEZE-OUT. [Cases: Corporations C= 182.3,597.] oppress, vb. oppressive, adj. oppressive child labor. See CHILD LABOR. oppressor. (14c) A public official who unlawfully or wrongfully exercises power under color of authority in a way that causes a person harm; one who commits oppression. [Cases: Officers and Public Employees 12l.] OPRA. abbr. OPTIONS PRICE REPORTING AUTHORITY. optima fide (op-ti-m. option, n. (l7c) l. The right or power to choose; some­ thing that may be chosen . 2. An offer that is included in a formal or informal contract; esp., a contractual obligation to keep an offer open for a specified period, so that the offeror cannot revoke the offer during that period . Also termed option contract; (redundantly) time option. See irrevocable offer under OFFER; OPTION AGREEMENT. [Cases: Contracts (;::=> 16.5; Vendor and Purchaser C::=> 18.]3. The right conveyed by such a contract . 4. The right (but not the obligation) to buy or sell a given quantity of securities, commodi­ ties, or other assets at a fixed price within a specified time . Cf. FUTURES CONTRACT. [Cases: Commodity Futures Trading Regulation C::=> 10; Corporations C::=>116; Secu­ rities Regulation C='5.25(3).] American option. An option that can be exercised on any day, including its expiration date. Also termed American-style option. Cf. European option.

option

1204

call option. An option to buy something (esp. securi­ ties) at a fixed price even if the market rises; the right to require another to sell. - Often shortened to call. [Cases: Commodity Futures Trading Regulation 10; Securities Regulation ~5.25(3).] cash-value option. The right of a life-insurance poli­ cyholder to surrender the policy for its cash value at a specified time or at any time. [Cases: Insurance 1950,2037.J commodity option. An option to buy or sell a commod­ ity. [Cases: Commodity Futures Trading Regulation ~1O.1

European option. An option that can be exercised only on its expiration date. Also termed European-style option. Cf. American option. futures option. An option to buy or sell a futures contract. [Cases: Commodity Futures Trading Reg­ ulation ~1O.] lease option. In a contract for rental property, a clause that gives the renter the right to buy the property at a fixed price, usu. at or after a fixed time. Also termed lease with an option to purchase. [Cases: Landlord and Tenant ~92.] naked option. A call option that grants another the right to buy stock even though the option-giver does not own the stock to back up that commitment. ­ Also termed uncovered option. nonforfeiture option. A policyholder's option, upon the lapse ofpremium payments, to continue an insurance policy for a shorter period than the original term, to surrender the policy for its cash value, to continue the policy for a reduced amount, or to take some other action rather than forfeit the policy. [Cases: Insur­ anceC::;:)2037.] option to purchase real property. A contract by which an owner of realty enters an agreement with another allowing the latter to buy the property at a specified price within a specified time, or within a reasonable time in the future, but without imposing an obliga­ tion to purchase upon the person to whom it is given. 18.] [Cases: Vendor and Purchaser put option. An option to sell something (esp. securities) at a fixed price even if the market declines; the right to require another to buy. Often shortened to put. [Cases: Commodity Futures Trading Regulation C-::' 10; Corporations ~116; Securities Regulation ~ 5.25(3).] Cf. put bond under BOND (3). seller's option. A special stock-exchange transaction that gives the seller the right to deliver the security within a specified period, usu. 5 to 60 days. settlement option. Insurance. A life-insurance-policy clause providing choices in the method of paying benefits to a beneficiary, as by lump-sum payment or periodic installments. [Cases: Insurance ~2443, 3402.] stock option. See STOCK OPTION.

uncovered option. See naked option.

c>

5. Hist. Eccles. law. The requirement that a newly elected bishop convey to the archbishop the right to fill the next vacant ecclesiastical benefice in the new bishop's see. option, vb. (1888) To grant or take an option on (some­ thing) <Ward optioned his first screenplay to the studio for $50,000>. option agreement. Corporations. A share-transfer restriction that commits the shareholder to sell, but not the corporation or other shareholders to buy, the shareholder's shares at a fixed price when a specified event occurs. Cf. BUY-SELL AGREEMENT (2); OPTION (2). [Cases: Corporations ~ 116.] optional bond. See BOND (3). optional completeness, rule of. See RULE OF OPTIONAL COMPLETENESS.

optional-completeness doctrine. See RULE OF OPTIONAL COMPLETENESS.

optional writ. See WRIT. option contract. See OPTION (2). optionee (op-sh44.1.] pretrial order. See PRETRIAL ORDER. protective order. See PROTECTIVE ORDER. qualified domestic-relations order. See QUALIFIED DOMESTIC-RELATIONS ORDER.

receiving order. A court's direction to a bankruptcy receiver to take some action. restraining order. See RESTRAINING ORDER. separation order. A court order granting a married person's request for a legal separation. See SEPARA­ TION AGREEMENT (1). [Cases: Divorce 155.J show-cause order. (1925) An order directing a party to appear in court and explain why the party took (or failed to take) some action or why the court should

or should not grant some relief. - Also termed order to show cause; rule to show cause; show-cause rule. [Cases: Motions standing order. A forward-looking order that applies to all cases pending before a court. • Some individual judges issue a standing order on a subject when there is no local rule bearing on it, often because a rule would not be acceptable to other judges on the court. Standing orders are frequently criticized because they undermine uniformity of procedural rules, esp. at the local leveL Cf. standing rule under RULE (3). supervision order. Family law. A court's order placing a child or young person under the supervision of a child-welfare agency or a probation officer in a case of neglect, abuse, or delinquency. [Cases: Infants 225,226.]

support order. See SUPPORT ORDER. temporary order. A court order issued during the pendency ofa suit, before the final order or judgment has been entered. temporary restraining order. See TEMPORARY RE­ STRAINING ORDER.

turnover order. An order by which the court commands a judgment debtor to surrender certain property to a judgment creditor, or to the sheriff or constable on the creditor's behalf. _ Such an order is usu. directed to property that is difficult to acquire by the ordinary judgment-collection process, such as share certificates and accounts receivable. [Cases: Execution (;::::>402.] umbrella order. See BLANKET ORDER (l). visitation order. See VISITATION ORDER. 3. Parliamentary law. lhe principles and practices of parliamentary law; the conduct of business accord­ ing to those principles and practices; DECORUM. See IN ORDER; OUT OF ORDER. 4. Parliamentary law. An item of business, or an agenda or series of such items . See AGENDA. general Qrder. An order of the day other than a special order. See order of the day (1). Cf. special order. order ofbusiness. 1. AGE::-IDA. 2. The sequence in which a meeting considers its business. "A settled order of business is, however, necessary for the government of the presiding person, and to restrain individual members from calling up favorite measures, or matters under their special patronage, out of their just turn. It is useful also for directing the discretion of the house, when they are moved to take up a particular matter, to the prejudice of others having priority of right to their attention in the general order of business." Thomas Jef­ ferson, A Manual of Parliamentary Practice 30 (1801).

order ofthe day. 1. An item of business scheduled for consideration at a certain upcoming meeting, at a certain time, or in a certain order.• An order of the day is either a general order or a speCial order. 2. The daily order ofbusiness. See order ofbusiness. special order. An order of the day scheduled for con­ sideration at a certain time, and which outranks and interrupts any other business except another special

order absolute

order scheduled earlier for the same time. See

1208 TIME

CERTAIN.

5. Parliamentary law. A vote that assigns a duty to an officer, employee, or other agent, customarily in the form, "Ordered, That ...." 6. Parliamentary law. RULE (3). 7. Commercial law. The words in a draft (such as a check) directing one person to pay money to or deliver something to a designated person .• An order should appear to be the demand of a right as opposed to the request for a favor. See order paper under PAPER. [Cases: Bills and Notes (::::::>4.] 8. Securities. A custom­ er's instructions to a broker about how and when to buy or sell securities. all-or-none order. An order to buy a security to be executed either in its entirety or not at all. alternative order. An order to buy a security by either of two alternatives (e.g., buy a stock at a limited price or buy on a stop order). - Also termed either-or order. buy order. An investor's instruction to purchase stock. day order. An order to buy or sell on one particular day only. Cf. open order. discretionary order. An order to buy or sell at any price acceptable to the broker. either-or order. See alternative order. fill-or-kill order. An order that must be executed as soon as it reaches the trading floor. • If the order is not filled immediately, it is canceled. limit order. An order to buy or sell at a specified price, regardless of market price. Cf. no-limit order. market order. An order to buy or sell at the best price immediately available on the market. - Also termed order at the market. matched order. An order to buy and sell the same security, at about the same time, in about the same quantity, and at about the same price. no-limit order. An order to buy or sell securities with no limits on price. Cf. limit order. open order. An order that remains in effect until filled by the broker or canceled by the customer. Cf. day order. order at the market. See market order. percentage order. An order to buy or sell a stated amount of a certain stock after a fixed number of shares of the stock have traded. scale order. An order to buy or sell a security at varying price ranges. sell order. An investor's instruction to sell stock. split order. An order directing a broker to sell some stock at one price and some stock at another price. stop order. An order to buy or sell when the secu­ rity's price reaches a specified level (the stop price) on the market. • By fixing the price beforehand, the investor is cushioned against stock fluctuations. ­ Also termed stop-loss order; stop-limit order. [Cases: Brokers (::::::>24(1).]

time order. An order that kcomes a market or limited­ price order at a specified time. order absolute. See decree absolute under DECREE. order assigning residue. A probate court's order naming the persons entitled to receive parts of an estate and allotting that share to each. order at the market. See market order under ORDER (8). order bill oflading. See BILL OF LADING. order document. See order paper under PAPER. ordered, adjudged, and decreed. (l7c) The traditional words used to introduce a court decision . "The usual style of a decree is 'it is ordered, adjudged, and decreed'; and of an order or rule, 'it is ordered: etc." 1 Henry Campbell Black, A Treatise on the Law ofJudgments § 2, at 6-7 (2d ed. 1902).

order instrument. See order paper under PAPER. orderly officer. See officer of the day under OFFICER (2). order nisi. See decree nisi under DECREE. order of business. See ORDER (4). order of dismissal. See dismissal order under ORDER. order of filiation. See filiation order under ORDER (2). Order of the Coif (koyO. 1. Formerly, the order of serjeants-at-law, the highest order of counsel at the English Bar.• The last serjeant was appointed to the Order in 1875.2. An honorary legal organization whose members are selected on the basis of their law-school grades. See COIF. order of the day. See ORDER (4). order paper. See PAPER. order to pay. See ORDER (2). Order, Resolution, or Vote Clause. U.S. Const. , art. 1, § 7, d. 3. order to show cause. See show-cause order under ORDER (2). ordinance (or-d;J-n;Jnts). (l4c) An authoritative law or decree; esp., a municipal regulation .• Municipal gov­ ernments can pass ordinances on matters that the state government allows to be regulated at the local level. A municipal ordinance carries the state's authority and has the same effect within the municipality's limits as a state statute. - Also termed bylaw; municipal ordi­ nance. [Cases: Municipal Corporations (::::::> 105.] "An ordinance ... may be purely administrative in nature, establishing offices, prescribing duties, or setting salaries; it may have to do with the routine or procedure of the governing body. Or it may be a governmental exercise of the power to control the conduct of the public - estab· lishing rules which must be complied with, or prohibiting certain actions or conduct. In any event it is the determi· nation of the sovereign power of the state as delegated to the municipality. It is a legislative enactment, within its sphere, as much as an act of the state legislature." 1 Judith O'Galiagher, Municipal Ordinances § lA.Ol, at 3 (2d ed. 1998).

1209

ordinandi lex (or-d988.] organ trafficking. See TRAFFICKING. original. See original writ under WRIT. original acquisition. See ACQUISITION. original administration. See ADMINISTRATION. original bill. See BILL (2). original contractor. See general contractor under CON­ TRACTOR.

original conveyance. See primary conveyance under CONVEYANCE.

original cost. See acquisition cost (1) under COST (1). original-document rule. See BEST-EVIDENCE RULE. original domicile. See domicile of origin under DOMICILE.

original drawing. See DRAWING. original estate. See ESTATE (1). original evidence. See EVIDENCE. originalia (d-rij-d-nay-lee-d or -nayl-yd). Hist. Records compiled in the Chancery and transmitted to the Remembrancer's office in the Exchequer.• These records were kept from 1236 to 1837. Cf. RECORDA. original intent. See INTENT (2). originalism. (1980) Constitutional law. The theory that the U.S. Constitution should be interpreted according to the intent of those who drafted and adopted it. Cf. INTERPRETIVISM; NONINTERPRETIVISM.

original issue. See ISSUE (2). original-issue discount. The difference between a bond's face value and the price at which it is initially sold. ­ Abbr.OID. originality. (18c) Copyright. 1. The quality or state of being the product of independent creation and having

1210

a minimum degree of creativity.• Originality is a requirement for copyright protection. But this is a lesser standard than that of novelty in patent law: to be original, a work does not have to be novel or unique. Cf. NOVELTY. [Cases: Copyrights and Intellectual Property C:=> 12(1).] 2. The degree to which a product claimed for copyright is the result of an author's independent efforts. Cf. CREATIVITY. [Cases: Copyrights and Intel­ lectual Property C:=> 12(1).] "'Original' in reference to a copyrighted work means that the particular work 'owes its origin' to the 'author.' No large measure of novelty is necessary." Alfred Bell & Co. v. Catalda Fine Arts, Inc., 191 F.2d 99,102 (2d Cir. 1951) (Frank, j.).

original jurisdiction. See JURISDICTION. original main motion. See MOTION (2). original market. See primary market under MARKET. original-package doctrine. Constitutional law. The principle that imported goods are exempt from state taxation as long as they are unsold and remain in the original packaging .• The Supreme Court abolished this doctrine in 1976, holding that states can tax imported goods if the tax is nondiscriminatory. See IMPORT­ EXPORT CLAUSE. [Cases: Commerce C:=>77.10(3).] original precedent. See PRECEDENT. original process. See PROCESS. original promise. See PROMISE. original receiver. See principal receiver under RECEIVER. original source. The person or persons who first dis­ closed fraud to the government, derived from direct and indirect information on which a qui tam complaint is based under the False Claims Act or a similar state law. [Cases: United States C:=> 122.] original title. See TITLE (2). original writ. See WRIT. original-writing rule. See BEST-EVIDENCE RULE. origination clause. (often cap.) (1984) 1. The constitu­ tional provision that all bills for increasing taxes and raising revenue must originate in the House of Repre­ sentatives, not the Senate (U.S. Const. art. I, § 7, cl. 1). • The Senate may, however, amend revenue bills. 2. A provision in a state constitution requiring that revenue bills originate in the lower house of the state legislature. [Cases: Statutes C:=>6.] origination fee. See FEE (1). originator. The entity that initiates a funds transfer subject to UCC article 4A. UCC § 4A-104(c). [Cases: Banks and Banking C:=> 188.5.] "or" lease. See LEASE. ornamental fixture. See FIXTURE. ornest. Hist. See TRIAL BY COMBAT. ORP. abbr. Ordinary, reasonable, and prudent - the standard on which negligence cases are based. orphan, n. (ISc) 1. A child whose parents are dead. [Cases: Infants C:=>2.] 2. A child with one dead parent

1211

outcome responsibility

and one living parent. - More properly termed half orphan. 3. A child who has been deprived of parental care and has not been legally adopted; a child without a parent or guardian. [Cases: Infants C:::J 157.] orphan drug. See DRUG. orphan's business. Hist. A probate court's jurisdiction over the allotment ofdistributive shares of an estate to the decedent's family, esp. the children. orphan's court. See probate court under COURT. OS. See ordinary seaman under SEAMAN.

abbr. OLD STYLE.

OSc. abbr. OFFICE OF SPECIAL COUNSEL.

OSHA (oh-sha). abbr. 1. OCCUPATIONAL SAFETY AND

HEALTH ACT OF 1970. 2. OCCUPATIONAL SAFETY AND O.S.

HEALTH ADMINISTRATION.

OSHRC. abbr.

OCCUPATIONAL SAFETY AND HEALTH

REVIEW COMMISSION.

OS!. abbr. See OFFICE OF SPECIAL INVESTIGATIONS. OSM. abbr. OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT.

o.s.p. abbr, OBUT SINE PROLE. ostendit vobis (os-ten-dit voh-bis). [Latin} Hist. Shows to you .• In old pleading, these words were used by a demandant to begin a count. ostensible (ah-sten-sa-bal), adj. (18c) Open to view; declared or professed; apparent. ostensible agency. See agency by estoppel under AGENCY (1).

ostensible agent. See apparent agent under AGENT (2). ostensible authority. See apparent authority under AUTHORITY (1).

ostensible partner. See nominal partner under PARTNER.

OSTP. See

OFFICE OF SCIENCE AND TECHNOLOGY

POLlCY.

ostrich defense. See DEFENSE (1). ostrich instruction. See JURY INSTRUCTION. OTA. abbr. OFFICE OF TECHNOLOGY ASSESSMENT. OTC. abbr. OVER-THE-COUNTER. OTC market. abbr. OVER-THE-COUNTER MARKET. other consideration. See CONSIDERATION (1). other good and valuable consideration. See other con­ sideration under CONSIDERATION. other income. See INCOME. other-insurance clause. An insurance-policy provision that attempts to limit coverage ifthe insured has other coverage for the same loss .• The three major other­ insurance clauses are the pro rata clause, the excess clause, and the escape clause. See ESCAPE CLAUSE; EXCESS CLAUSE; PRO RATA CLAUSE. [Cases: Insurance C:::J2109.)

other-property rule. The principle that tort recovery is unavailable if the only damage caused by a product defect is to the product itself. See East River S.S. Corp. v. Transamerica Delaval, Inc., 476 U.S. 858, 106 S. Ct. 2295 (1986). Insurance (''-::>2109.] OTP. abbr. Office of Technology Policy. See TECHNOL­ OGY ADMINISTRATION.

OTS. abbr. OFFICE OF THRIFT SUPERVISION. OTSA. abbr. OFFICE OF TAX-SHELTER ANALYSIS. ~UI. abbr. Operating under the influence. See DRIVING UNDER THE INFLUENCE. [Cases: Automobiles C~ 332.] our federalism. (often cap.) (1971) The doctrine holding that a federal court must refrain from hearing a consti­ tutional challenge to state action iffederal adjudication would be considered an improper intrusion into the state's right to enforce its own laws in its own courts. Cf. ABSTENTION; FEDERALISM. [Cases: Federal Courts C:::J43, 46.] oust, vb. (lSc) To put out of possession; to deprive of a right or inheritance. ouster. (l6c) 1. The wrongful dispossession or exclu­ sion of someone (esp. a cotenant) from property (esp. real property); DISPOSSESSION. [Cases: Property~,:) 10; Tenancy in Common 14,15.] 2. The removal of a public or corporate officer from office. Cf. EJECTMENT. [Cases: Officers and Public Employees ouster Ie main (ow-star I;) mayn). [Law French "remove the hand"] Hist. 1. A delivery ofland out of the mon­ arch's hands because the monarch has no right or title to hold it. 2. A judgment or writ granting such a delivery. 3. A delivery ofland from a guardian to a ward once the ward attains legal age. - Also ,vritten

ouster-ie-main. outbuilding. (l7c) A detached building (such as a shed or garage) within the grounds of a main building. outcome-determinative test. (1959) Civil procedure. A test used to determine whether an issue is substantive for purposes of the Erie doctrine by examining the issue's potential effect on the outcome of the litigation. See ERIE DOCTRINE. [Cases: Federal Courts C:::J373.] outcome responsibility. The view that those who cause harm are responsible for it even in the absence of fault. Cf. strict liability under LIABILITY. "Outcome responsibility serves to foster a sense of identity because it does not stretch indefinitely into the future but enables each of us to claim for ourselves, or to share with a few others, outcomes of limited extent, whether successes or failures. Yet outcome responsibility for harm to another does not by itself create a duty to compensate. The form that our responsibility for an outcome should take remains an open question. An apology or telephone call will often be enough. But outcome responsibility is a basis on which the law can erect a duty to compensate if there is reason to do so. There will be some reason to do so if the conduct in question is socially undesirable and if there is also reason to treat the harm suffered as the infringement of a right." Tony Honore, Responsibility and Fault 77-78 (1999).

outer bar. English law. A group of junior barristers who sit outside the dividing bar in the court. • These barristers rank below the King's Counselor Queen's Counsel. - Also termed utter bar. Cf. INNER BAR. outer barrister. See BARRISTER. Outer House. Scots law. The first-instance jurisdiction of the Court of Session. See COURT OF SESSION (1). outer space. (1842) 1. The known and unknown areas of the universe beyond airspace.• The boundary between airspace and outer space is not fixed or precise. Cf. AIRSPACE. 2. Int'llaw. The space surrounding the planet that by United Nations treaty is not subject to claim of appropriation by any national sovereignty.• The treaty does not expressly define outer space. See OUTER SPACE TREATY.

Outer Space Treaty. Int'llaw. The short title of the United Nations Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, 18 U.S.T. pt. 3, at 2410 (Jan. 27, 1967).• This treaty stipu­ lates that, because space exploration is in the interest of all humanity, no nation may claim territory, establish military bases, or station weapons on any other planet or a moon. The treaty also declares that international law and the United Nations charter apply in space. See OUTER SPACE.

outfangthief (owt-fang-theef). [fr. Old English ut "out" + fangen "taken" + theof"thief"J Hist. The right of a lord of a manor to pursue a thief outside the manor's jurisdiction and to bring the thief back for trial and punishment; a lord's right to punish all thefts com­ mitted within his territories, wherever the thief might be caught. - Also spelled outfangthef; utfangthief; utfangthef; outfangthef Cf. INFANGTHIEF. outlaw, n. (bef. 12c) 1. A person who has been deprived of the benefit and protection ofthe law; a person under a sentence of outlawry. 2. A lawless person or habitual criminal; esp., a fugitive from the law. 3. Int'llaw. A person, organization, or nation under a ban or restric­ tion because it is considered to be in violation of inter­ national law or custom. outlaw, vb. (I8c) 1. To deprive (someone) of the benefit and protection of the law; to declare an outlaw . 2. To make illegal . 3. To remove from legal jurisdic­ tion or enforcement; to deprive of legal force . outlawry. 1. Hist. The act or process of depriving someone of the benefit and protection of the law. 2. The state or condition of being outlawed; the status of an outlaw. 3. Disregard or disobedience of the law. See SACER; CONSECRATIO CAPITIS.

outlaw strike. See wildcat strike under STRIKE. outline form. Patents. A style of writing patent claims that uses a numbered or lettered subparagraph for each element. Cf. COLON-SEMICOLON FORM; SINGLE-PARA­ GRAPH FORM; SUBPARAGRAPH FORM.

out-of-court, adj. (1950) Not done or made as part of a judicial proceeding . See EXTRAJUDICIAL.

out-of-court settlement. See SETTLEMENT (2). out-of-home placement. Family law. The placing of a child in a living arrangement outside the child's home (as in foster care or institutional care), usu. as the result of abuse or neglect; specif., in a child-abuse or child­ neglect case, state action that removes a child from a parent's or custodian's home and places the child in foster care or with a relative, either temporarily or for an extended period. Cf. FOSTER-CARE PLACEMENT. [Cases: Infants C=::'226.J out-of-hospital do-not-resuscitate order. See DO-NOT­ RESUSCITATE ORDER.

out of order. (I8c) 1. (Of a motion) not in order . See IN ORDER. • A motion may be "out of order" because it is inherently inappropriate for the deliberative assembly's consideration at any time (e.g., because it proposes an unlawful action). A motion that is not appropriate simply because it is brought before the meeting at the wrong time but that may be appro­ priate for consideration at another time is more pre­ cisely referred to as "not in order." "Motions that conflict with the corporate charter. constitu­ tion or bylaws of a society. or with procedural rules pre­ scribed by national. state, or local laws, are out of order, and if any motion of this kind is adopted, it is null and void. Likewise. motions are out of order if they conflict with a motion that has been adopted by the society and has been neither rescinded, nor reconsidered and rejected after adoption. Such conflicting motions, if adopted. are null and void unless adopted by the vote required to rescind or amend the motion previously adopted." Henry M. Robert. Robert's Rules of Order Newly Revised § 39. at 332 (10th ed.2000).

2. (Of a person) guilty of a breach of decorum or other misconduct during a meeting . out-of-pocket expense. See EXPENSE. out-of-pocket loss. See LOSS. out-of-pocket rule. (1940) The principle that a defrauded buyer may recover from the seller as damages the dif­ ference between the amount paid for the property and the actual value received. Cf. BENEFIT-OF-THE-BARGAIN RULE (2). [Cases: Fraud C=::'59(3).J out of the money, adj. (Of a creditor) unpaid because a debtor has insufficient assets to pay the claim. out of the state. See BEYOND SEAS (2). out of time. After a deadline; too late . override (oh-var-rId), n. (1931) 1. A commission paid to a manager on a sale made by a subordinate. 2. A commis­ sion paid to a real-estate broker who listed a property when, within a reasonable amount of time after the expiration of the listing, the owner sells that property directly to a buyer with whom the broker had negoti­ ated during the term ofthe listing. [Cases: Brokers C=; 56(3).] 3. ROYALTY (2). overriding royalty. See ROYALTY (2). overrule, vb. (16c) 1. To rule against; to reject . overt act. (l7c) Criminal law. 1. An act that indicates an intent to kill or seriously harm another person and thus gives that person a justification to use self-defense. 51; Homicide (;:::> [Cases: Assault and Battery 767.] 2. An outward act, however innocent in itself, done in furtherance of a conspiracy, treason, or criminal attempt.• An overt act is usu. a required element of these crimes. [Cases: Conspiracy (;:::>27; Criminal Law 3. See ACTUS REUS. - Also termed positive act. over-the-counter, adj. 1. Not listed or traded on an organized securities exchange; traded between brokers and dealers who negotiate directly . [Cases: Securities Regulation (;:::>35.13.] 2. (Of drugs) sold legally without a doctor's prescription . - Abbr. OTC. 305.] [Cases: Health over-the-counter market. The market for securities that are not traded on an organized exchange .• Over-the­ counter (OTC) trading usu. occurs through telephone or computer negotiations between buyers and sellers. Many of the more actively traded OTC stocks are listed on NASDAQ. Abbr. OTC market. [Cases: Securities Regulation ~~35.13.J overtime. 1. The hours worked by an employee in excess of a standard day or week .• Under the Fair Labor Stan­ dards Act, employers must pay extra wages (usu. 1Ih times the regular hourly rate) to certain employees (usu. nonsalaried ones) for each hour worked in excess of 40 hours per week. [Cases: Labor and Employment Cr'-=>2305.j 2. The extra wages paid for excess hours worked. overtry, vb. (1911) (Of a trial lawyer) to try a lawsuit by expending excessive time, effort, and other resources to explore minutiae, esp. to present more evidence than the fact-trier can assimilate, the result often being that the adversary gains arguing points by disputing the minutiae. overturn, vb. (1842) To overrule or reverse . [Cases: Courts (;:::> 100(1).J OWCP. abbr. OFFICE OF WORKERS' COMPENSATION PROGRAMS.

owelty (oh-dl-tee). (l6c) 1. Equality as achieved by a compensatory sum of money given after an exchange of parcels of land having different values or after an unequal partition of real property. [Cases: Partition (;:::>84.] 2. The sum of money so paid.

OWl. abbr. Operating while intoxicated. See DRIVING U:-'DER THE INFLUENCE. [Cases: Automobiles (;:::> 332.J owing, adj. (15c) That is yet to be paid; owed; due . owling. Hist. The smuggling of wool or sheep out of England.• The term usu. refers to nighttime smug­ gling. own, vb. (bef. 12c) To rightfully have or possess as property; to have legal title to. owned-property exclusion. See EXCLUSION (3). owner. (bef. 12c) One who has the right to possess, use, and convey something; a person in whom one or more interests are vested .• An owner may have complete property in the thing or may have parted with some interests in it (as by granting an easement or making a lease). See OWNERSHIP. adjoining owner. (I8c) A person who owns land abutting another's; ABUTTER. [Cases: Adjoining Landowners beneficial owner. (18c) 1. One recognized in equity as the owner of something because use and title belong to that person, even though legal title may belong to someone else; esp., one for whom property is held in trust. Also termed equitable owner. [Cases: 2. A corporate shareholder who has Trusts the power to buy or sell the shares, but who is not registered on the corporation's books as the owner. [Cases: Corporations (;:::>135.]3. Intellectual property. A person or entity who is entitled to enjoy the rights in a patent, trademark, or copyright even though legal title is vested in someone else .• The beneficial owner has standing to sue for infringement. A corporation is typically a beneficial owner if it has a contractual right to the assignment ofthe patent but the employee who owns the patent has failed to assign it. Similarly, a patent or copyright owner who has transferred title as collateral to secure a loan would be a beneficial owner entitled to sue for infringement. copyright owner. See COPYRIGHT OWNER. equitable owner. See beneficial owner (1). general owner. (l8c) One who has the primary or resid­ uary title to property; one who has the ultimate own­ ership of property. Cf. special owner. legal owner. (17c) One recognized by law as the owner of something; esp., one who holds legal title to property for the benefit of another. See TRUSTEE (1). [Cases: Trusts limited owner. (1836) A tenant for life; the owner of a life estate. See life estate under ESTATE (1). [Cases: Life Estates (;:::01.] naked owner. Civil law. A person whose property is burdened by a usufruct .• The naked owner has the right to dispose of the property subject to the usufruct, but not to derive its fruits. See USUFRUCT. [Cases: Estates in Property (;:::> 1.]

ownership-in-place theory

1215

owner ofrecord. See record owner. owner pro hac vice (proh hahk vee-chay). See bareboat charter under CHARTER (8). record owner. (1863) 1. A property owner in whose name the title appears in the public records. 2. STOCK­ HOLDER OF RECORD.

sole and unconditional owner. (1871) Insurance. The owner who has full equitable title to, and exclusive interest in, the insured property. [Cases: Insurance ~2992(2).1

special owner. (I8c) One (such as a bailee) with a quali­ fied interest in property. Cf. general owner. owners' association. (1968) 1. The basic governing entity for a condominium or planned unit developments.• It is usu. an unincorporated association or a nonprofit corporation. [Cases: Associations Condominium ~8.] - Also termed homeowners' association. 2. See homeowners' association under ASSOCIATION. owners' equity. (1935) The aggregate of the owners' financial interests in the assets of a business entity; the capital contributed by the owners plus any retained earnings.• Owners' equity is calculated as the differ­ ence in value between a business entity's assets and its liabilities. - Also termed owner's equity; book value; net book value; (in a corporation) shareholders' equity; stockholders' equity. [Cases: Taxation ~2545.1 "Owner's equity is the residual claim of the owners of the business on its assets after recognition of the liabilities of the business. Owner's equity represents the amounts contributed by the owners to the business, plus the accu­ mulated income of the business since its formation, less any amounts that have been distributed to the owners." Charles H. Meyer, Accounting and Finance for Lawyers in a Nutshell 4 (1995).

ownership. (16c) The bundle of rights allowing one to use, manage, and enjoy property, including the right to convey it to others .• Ownership implies the right to possess a thing, regardless of any actual or constructive control. Ownership rights are general, permanent, and heritable. Cf. POSSESSION; TITLE (1). [Cases: Property 11.] "Ownership does not always mean absolute dominion. The more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by the statutory and constitutional powers of those who use it." Marsh v. Alabama, 326 u.s. 501,506,66 S.Ct. 276, 278 (1946) (Black,].). "Possession is the de facto exercise of a claim; ownership is the de jure recognition of one. A thing is owned by me when my claim to it is maintained by the will of the state as expressed in the law; it is possessed by me, when my claim to it is maintained by my own self·assertive will. Ownership is the guarantee of the law; possession is the guarantee of the facts. It is well to have both forms if possible; and indeed they normally co·exist." John Salmond, jurispru' dence 311 (Glanville L Williams ed., 10th ed. 1947).

bare ownership. See trust ownership. beneficial ownership. (18c) 1. A beneficiary's interest in trust property. Also termed equitable owner­ ship. [Cases: Trusts ~ 139.] 2. A corporate share­ holder's power to buy or sell the shares, though the

shareholder is not registered on the corporation's books as the owner. bonitary ownership (bahn-a-tair-ee). Roman law. A type of eqUitable ownership recognized by the praetor when the property was conveyed by an informal transfer, or by a formal transfer by one not the true owner. - Also termed bonitarian ownership; in bonis habere. complete ownership. Hist. Louisiana law. See perfect ownership. contingent ownership. (1886) Ownership in which title is imperfect but is capable of becoming perfect on the fulfillment of some condition; conditional own­ ership. corporeal ownership. (1894) The actual ownership of land or chattels. equitable ownership. See beneficial ownership (1). full ownership. Hist, Louisiana law. See perfect own­ ership. imperfect ownership. Louisiana law. Ownership of property subject to a usufruct interest held by another. See La. Civ. Code art. 478. - Also termed naked own­ ership. incorporeal ownership. (1931) The ownership of rights in land or chattels. joint ownership. (18c) Undivided ownership shared by two or more persons .• Typically, an owner's interest, at death, passes to the surviving owner or owners by virtue of the right of survivorship. [Cases: Joint Tenancy~L]

naked ownership. Louisiana law. See imperfect own­ ership. ownership in common. (1838) Ownership shared by two or more persons whose interests are divis­ ible.• Typically their interests, at death, pass to the dead owner's heirs or successors. [Cases: Tenancy in Common perfect ownership. Hist. Louisiana law. The complete bundle of rights to use, enjoy, and dispose ofproperty without limitation. - Also termed full ownership; complete ownership. [Cases: Property ~7, 11.] qualified ownership. (I8c) Ownership that is shared, restricted to a particular use, or limited in the extent of its enjoyment. trust ownership. (1893) A trustee's interest in trust property. - Also termed bare ownership. [Cases: Trusts ~ 133.] unqualified ownership. Absolute ownership. [Cases: Property ~7.1 vested ownership. (1867) Ownership in which title is perfect; absolute ownership. ownership-in-place theory. Oil & gas. A characteriza­ tion ofoil-and-gas rights used in a majority ofjurisdic­ tions, holding that the owner has the right to present possession of the oil and gas in place as well as the

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owner's policy

right to use the land surface to search, develop, and produce from the property, but that the interest in the minerals terminates if the oil and gas flows out from under the owner's land. - This theory is used in Texas, New Mexico, Kansas, Mississippi, and other major pro­ ducing states. The rights of a severed-mineral-interest owner to oil and gas in these states are often described as an estate in fee simple absolute, but ownership of specific oil-and-gas molecules is subject to the rule of capture. See also NONOWNERSHIP THEORY. [Cases: Mines and Minerals 55,62.1, 73.1(6).] owner's policy. Real estate. A title-insurance policy covering the owner's title as well as the mortgagee's interest. Cf. MORTGAGEE POLICY. [Cases: Insurance ~ 2610; Mortgages ~'201.] own-product exclusion. See EXCLUSION (3). own-work exclusion. See EXCLUSION (3). oxfild (oks-fild). Hist. A restitution made by a county or hundred for a wrong done by someone within that region. oxgang (oks-gang). Hist. An amount ofland equal to what an ox plows in one year, usu. 12 to 15 acres. - An oxgang, equaling one-eighth of a carucate, was used to assess land for tax purposes. - Also termed oxgate; bovata terrae. Cf. CARUCATE. oyer (oY-::lr or oh-y::lr). [fro Old French orr "to hear"] (15c) Hist. L A criminal trial held under a commission of oyer and terminer. See COMMISSION OF OYER AND

2. The reading in open court of a document (esp. a deed) that is demanded by one party and read by the other. 3. Common-law pleading. A prayer to the court by a party opposing a profert, asking to have the instrument on which the opponent relies read aloud. _ Oyer can be demanded only when a profert has been properly made, but it is disallowed for a private writing under seal. [Cases: Bills and Notes ~488; Pleading C:)306.] TERMINER.

"A party having a right to demand oyer is yet not obliged, in all cases, to exercise that right; nor is he obliged, in all cases, after demanding it, to notice it in the pleading he afterwards files or delivers. Sometimes, however, he is obliged to do both, namely, where he has occasion to found his answer upon any matter contained in the deed of which profert is made, and not set forth by his adversary. In these cases the only admissible method of making such matter appear to the court is to demand oyer, and, from the copy given, set forth the whole deed verbatim in his pleading." BenjaminJ. Shipman, Handbook of Common·Law Pleading § 289, at 483 (Henry Winthrop Ballantine ed., 3d ed.1923).

oyer, demand of. See DEMAND OF OYER. oyer and terminer (oY-::lr an[d] tar-m::l-n::lr). [Law French oyer et terminer "to hear and determine"] (15c) 1. See COMMISSION OF OYER AND TERMINER. 2. COURT OF OYER AND TERMINER (2).

oyez (oh-yes or oh-yez or oh-yay). [Law French] (I5c) Hear yeo - The utterance oyez, oyez, oyez is usu. used in court by the public crier to call the courtroom to order when a session begins or when a proclamation is about to be made.

p

P. abbr. PACIFIC REPORTER. P.A. abbr. See professional association under ASSOCIA­ TION.

paage (pay-ij). See PEDAGE. PAC (pak). abbr. POLITICAL-ACTION COMMITTEE. pacare (pa-kair-ee), vb. [Law Latin] I-list. To pay. PACER. abbr. PUBLIC ACCESS TO COURT ELECTRONIC

"Popular understanding notwithstanding, there is no legal difference between various kinds of international instru­ ments because of the name they are given. In other words, 'treaties,' 'pacts,' 'protocols,' 'conventions,' 'covenants,' and 'declarations' are all terms to convey international agreements. Some of these terms may connote more or less solemnity or formality, but it does not matter for purposes of characterizing an accord as an international agreement, binding under international law." Davidj. Bederman, Inter­ national Law Frameworks 25 (2001).

RECORDS. pacta sunt servanda (pak-t<J s<Jnt s<Jr-van-dd). [Latin "agreements must be kept"] The rule that agreements pacification (pas-a-fi-kay-sh;m), n. (ISc) Int'llaw. The and stipulations, esp. those contained in treaties, must act of making peace between two belligerent nations. be observed . [Cases: Contracts pacific blockade. See BLOCKADE. C:=> 1.] padfidst. See PACIFIST. pact de non alienando (pakt dee non ay-Iee-a-nan-doh). Pacific Reporter. A set of regionallawbooks, part of [Latin] Civil law. An agreement not to alienate encum­ the West Group's National Reporter System, contain­ i bered (esp. mortgaged) property. - This stipulation will ing every officially published appellate decision from ' not void a sale to a third party, but it does allow the Alaska, Arizona, California, Colorado, Hawaii, Idaho, mortgagee to proceed directly against the mortgaged Kansas, Montana, Nevada, New Mexico, Oklahoma, property without notice to the purchaser. Oregon, Utah, Washington, and Wyoming, from 1883 pactio (pak-shee-oh). [Latin] Civil law. 1. The negotiating to date. - The first series ran from 1883 to 1931; the process that results in a pactum. 2. The pactum arrived second series ran until 2000; the third series is the at; an agreement. PI. pactiones. current one. - Abbr. P.; P.2d; P.3d. paction (pak-shan). 1. PACTIO. 2. Int'llaw. An agreement pacifism (pas-a-fiz-am). (1902) Int'llaw. The advocacy of between two nations to be performed by a Single act. peaceful methods rather than war as a means of solving i disputes. pactionai, adj. Relating to or generating an agreement. ­ paction ally, adv. pacifist (pas-d-fist), n. (1906) A person who is opposed to Pact of Paris. See KELLOGG-BRIAND PACT. war; a person who believes in pacifism. - Also termed I pactum (pak-tam), n. [Latin] Roman & civil law. An pacificist. Cf. CONSCIENTIOUS OBJECTOR. pack, vb. (16c) To choose or arrange (a tribunal, jurors, I agreement or convention, usu. falling short of a etc.) to accomplish a desired result <pack a jury>. 'contract; a pact. - Also termed pactum conventum. PLpacta. package mortgage. See MORTGAGE. pactum constitutae pecuniae (pak-tdm kon-sta-t[y] package policy. See INSURANCE POLICY. oo-tee pi-kyoo-nee-ee). [Latin "agreement for a fixed packing, n. A gerrymandering technique in which a sum of money"] See pactum de consituto. dominant political or racial group minimizes minority pactum corvinum de hereditate viventis (pak-tdm representation by concentrating the minority into as kor-vI-ndm dee ha-red-i-tay-tee vl-ven-tis). [Latin "a few districts as possible. Cf. CRACKING; STACKDIG (2). raven-like contract on the inheritance of the living"] [Cases: Ejections 12(6).J An agreement concerning the succession of one still packing a jury. See JURY-PACKING. liVing. - Also termed pactum de successione viventis; pactum super hereditate viventis. Pac-Man defense (pak-man). An aggressive antitakeover "It is supposed that the Romans called this a corvine agree· defense by which the target company attempts to take ment (pactum coyvinum) on account of the eager rapacity over the bidder company by making a cash tender offer of ravens, which prompts them to attack and commence for the bidder company's shares. _ The name derives to devour animals weakened and dying before death has from a video game popular in the 1980s, the object actually taken place." John Trayner, Trayner's Latin Maxims 429 (4th ed. 1894). of which was to gobble up the enemy. This defense is seldom used today. Cf. CROWN-JEWEL DEFENSE; pactum de constituto (pak-tam dee kon-sti-t[y]oo-toh). SCORCHED-EARTH DEFENSE. [Latin "an agreement"] An informal agreement to pay an existing debt, one's own or another's, at a fixed pact. (15c) An agreement between two or more parties; time. _ The agreement was enforceable by a praetor. esp., an agreement (such as a treaty) between two or more nations or governmental entities. Justinian extended the pactum de canstituto from

pad

1218

money to debts of any kind. The pactum could also be used to give security; it differs from fidejussion mainly in its informality. Also termed pactum constitutae pecuniae. See CONSTITGTUM. Cf. FIDEJUSSION. pactum de non petendo (pak-tam dee non pa-ten-doh). [Latin "agreement not to sue") An agreement in which a creditor promises not to enforce the debt. pactum de quota litis (pak-tam dee kwoh-ta II-tis). [Latin "agreement about a portion of the amount in issue"] An agreement in which a creditor promises to pay a portion of a difficult-to-collect debt to a person attempting to collect it; an agreement to share the proceeds of a litigation. pactum de retrovendendo (pak-tam dee re-troh-ven­ den-doh). [Latin] An agreement concerning the selling back of an object. • This agreement gave the seller the right to repurchase the item sold within a certain period and at a fixed price. pactum de successione viventis (pak-tam dee sak­ ses[h)-ee-oh-nee vI-ven-tis). [Latin] See pactum corvinum de hereditate viventis. pactum displicentiae (pak-tam dis-pli-sen-shee-I). Roman law. A sale on approval. • The buyer had the property on trial and could reject it. pactum donationis (pak-tam doh-nay-shee-oh-nis). [Latin] An agreement to make a gift .• Justinian made such agreements enforceable. If informal, the agree­ ment would be valid up to a fix sum (500 solidi). pactum illicitum (pak-tam i-lis-a-tam). [Latin] An illegal agreement. pactum legis commissoriae (pak-tam lee-jis kom-i-sor­ ee-ee). [Latin] An agreement under which the seller received the benefit of the lex commissoria. See LEX COMMISSORIA.

pactum legis commissoriae in pignoribus (pak-t318.] P & L. abbr. Profit and loss. See INCOME STATEMENT. panel. (14c) 1. A list of persons summoned as poten­ tial jurors; VENIRE. 2. A group of persons selected to serve on a jury; JURY. [Cases: Jury (::::066, 78.] 3. A set of judges selected from a complete court to decide a specific case; esp., a group of three judges designated to sit for an appellate court. [Cases: Courts (::::070.] 4. Scots law. A person indicted in a crime; the accused. ­ Also spelled (in sense 4) pal1l1el. panelation (pan-al-ay-sh;m). (2003) The act of empanel­ ing a jury. - Also spelled panel/ation. panel attorney. See ATTORNEY. panel-shopping. (1974) The practice of chOOSing the most favorable group ofjudges to hear an appeal. panhandling. The act or practice of approaching or stopping strangers and begging for money or food. [Cases: Vagrancy 1.J - panhandler, n. pan­ handle, vb.

pannage

pannage (pan-ij). Hist. 1. The right to feed animals, esp. swine, on the windfallen nuts, etc. in a forest. 2. The payment made to a forest's owner in exchange for the right. papal law (pay-p210.]

chattel paper (chat-. parapherna (par-,,-far-n,,), n. (Greek "things brought on the side"]l. Roman law. Property of a wife not forming part of her dowry. See DOS (1). 2. Scots law. A married woman's personal property, such as clothing, jewelry, and intimate possessions, which a husband did not acquire by virtue of marriage. See JUS MARITI. paraphernalia (par-,,-f3r-nay-lee-,,). (17c) Hist. Property that a wife was allowed to keep, in addition to her dowry, on the death of her husband. "[I]n one particular instance the wife may acquire a property in some of her husband's goods: which shall remain to her after his death and not go to the executors. These are called her paraphernalia, which is a term borrowed from the civil law. , . signifying something over and above her dower." 2 William Blackstone, Commentaries on the Laws of England 435-36 (1765).

paraphernal property. See extradotal property under PROPERTY.

Paraphrase of Theophilus. See INSTITUTE (4). parata executio (p"-ray-t,, ek-s,,-kyoo-shee-oh). [Law Latin "a prepared diligence"] Scots law. A creditor's completed diligence allowing the creditor to proceed to obtain payment of a debt. paratitla (par-,,-tIt-I,,). n. pl. [Law Latin "next to the title"] Roman & civil law. :..Iotes or abstracts prefixed to titles of law. giving a summary of their contents. paratum habeo (p,,-ray-tam hay-bee-oh). [Law Latin "1 have him in readiness"] Hist. A sheriff's return of a capias ad respondendum, signifying that the defendant is ready to be brought to court. paratus est verificare (p"-ray-t,,s est ver-,,-fi-kair-ee). [Law Latin] He is ready to verify.• This phrase formerly concluded a verified pleading. paramil (par-,,-vayl or par-,,-vayl). adj. [Law French "at the bottom"] Hist. (Of a tenant) holding of another tenant. parcel, n. (ISc) 1. A small package or bundle. 2. A tract ofland; esp .• a continuous tract or plot ofland in one possession, no part of which is separated from the rest by intervening land in another's possession. parcel, vb. (ISc) To divide and distribute (goods. land, etc.) • This verb is often used with out or, rarely, off . parcenary (pahr-sa-ner-ee). See COPARCENARY. parcener (pahr-s"-n,,r). See COPARCENER. parco fracto (pahr-koh frak-toh). See DE PARCO FRACTO.

par delictum Cpahr di-lik-t"m). [Latin) Equal guilt; equal wrong.

pardon, n. (14c) The act or an instance of officially nul­ lifying punishment or other legal consequences of a crime.• A pardon is usu. granted by the chief executive of a government. The President has the sole power to issue pardons for federal offenses, and state governors have the power to issue pardons for state crimes. ­ Also termed executive pardon. See CLEMENCY. Cf. COM­ MUTATION (2); REPRIEVE. [Cases: Pardon and Parole C'::;)23.) pardon, vb. "The term pardon is first found in early French law and derives from the Late Latin perdonare ('to grant freely'), suggesting a gift bestowed by the sovereign. It has thus come to be associated with a somewhat personal conces· sion by a head of state to the perpetrator of an offense, in mitigation or remission of the full punishment that he has merited." Leslie Sebba, "Amnesty and Pardon," in 1 Encyclopedia of Crime and Justice 59, 59 (Sanford H. Kadish ed., 1983).

absolute pardon. A pardon that releases the wrong­ doer from punishment and restores the offender's civil rights without qualification. - Also termed full pardon; unconditional pardon. [Cases: Pardon and Parole ~23.1 conditional pardon. A pardon that does not become effective until the wrongdoer satisfies a prerequisite or that will be revoked upon the occurrence of some specified act. [Cases: Pardon and Parole (''''::::>23.] faultless pardon. A pardon granted because the act for which the person was convicted was not a crime. [Cases: Pardon and Parole general pardon. See AMNESTY. partial pardon. A pardon that exonerates the offender from some but not all of the punishment or legal con­ sequences of a crime. [Cases: Pardon and Parole 23.]

unconditional pardon. See absolute pardon. pardon attorney. A Justice Department lawyer who con­ siders applications for federal pardons and forwards those of promising candidates for review by the Presi­ dent. parens binubus (par-enz bI-n[y]oo-bas). [Latin "twice­ married parent") Roman law. A parent who has remar­ ried. parens patriae (par-enz pay-tree-ee orpa-tree-I). [Latin "parent of his or her country"] (18c) 1. Roman law. The emperor as the embodiment of the state. 2. The state regarded as a sovereign; the state in its capacity as provider of protection to those unable to care for them­ selves . [Cases: States C=' l.] 3. A doctrine by which a government has standing to pros­ ecute a lawsuit on behalf of a citizen, esp. on behalf of someone who is under a legal disability to prosecute the suit <parens patriae allowed the state to institute proceedings>. _ The state ordinarily has no standing to sue on behalf of its citizens, unless a separate, sover­ eign interest will be served by the suit. Also termed doctrine ofparens patriae. [Cases: Infants States (::::::::190.]

parent

parent. (15c) 1. The lawful father or mother of someone .• In ordinary usage, the term denotes more than respon­ sibility for conception and birth. The term commonly includes (1) either the natural father or the natural mother of a child, (2) either the adoptive father or the adoptive mother of a child, (3) a child's putative blood parent who has expressly acknowledged paternity, and (4) an individual or agency whose status as guardian has been established by judicial decree. In law, parental status based on any criterion may be terminated by judicial decree. In other words, a person ceases to be a legal parent if that person's status as a parent has been terminated in a legal proceeding. - Also termed legal parent. [Cases: Parent and Child C= 1.] absent parent. See noncustodial parent. adoptive parent. (1Sc) A parent by virtue of legal adoption. See ADOPTION (1). [Cases: Adoption C= 4,20.] biological parent. The woman who provides the egg or the man who provides the sperm to form the zygote that grows into an embryo. - Also termed genetic parent. [Cases: Children Out-of-Wedlock C= 1.] birth parent. Either the biological father or the mother who gives birth to a child. - Sometimes written birthparent. constructive parent. See equitable parent. custodial parent. The parent awarded physical custody of a child in a divorce. See PHYSICAL CUSTODY (2). Cf. noncustodial parent. [Cases: Child Custody C= 209.] defacto parent. An adult who (1) is not the child's legal parent, (2) has, with consent of the child's legal parent, resided with the child for a significant period, and (3) has routinely performed a share of the caretaking functions at least as great as that of the parent who has been the child's primary caregiver without any expectation of compensation for this care .• Because the status of de facto parent is subordinate to that of legal parent, a person who expects to be afforded the status of parent should, if possible, adopt the child. The primary function of this conceptual status is to provide courts with a means for maintaining a rela­ tionship between a child and an adult who has func­ tioned as a parent when that adult is prohibited from legally adopting the child. The status is usu.limited to a person who has assumed the role ofparent with the knowledge and consent, either express or implied, of the legal parent. But it may also arise when there is a total failure or inability ofthe legal parent to perform parental duties. Cf. equitable parent; psychological parent. Disneyland parent. A noncustodial parent who indulges his or her child with gifts and good times during visitation and leaves most or all disciplinary responsibilities to the other parent; esp., a noncusto­ dial parent who provides luxuries that the custodial parent cannot afford but performs no disciplin­

1222

ary duties, in an effort to gain or retain the child's affection. See LOLLIPOP SYNDROME. domiciliary parent. A parent with whom a child lives. [Cases: Child CustodyC=147.] dual-residential parent. A parent who shares primary residential responsibility for a child with the other parent when each provides a residence that is substan­ tially a primary residence.• In many jurisdictions, dual residence is referred to as joint physical custody. See RESIDENTIAL RESPONSIBILITY; CUSTODY (2). Cf. residential parent. equitable parent. 1. A husband who, though not the biological father, is treated by the court as the father in an action for custody or visitation, usu. when the husband (1) has treated the child as his own while married to the child's mother, (2) is the only father the child has ever known, and (3) seeks the rights of fatherhood. 2. A mother or father, not by blood or adoption, but by virtue of the close parent-like rela­ tionship that exists between that person and a child. • The status of equitable parent is a legal fiction that is used as an equitable remedy. Most commonly, the status of equitable parent arises when a person, living with the child and one of his or her legal or natural parents, forms a close bond with the child and assumes the duties and responsibilities of a parent. ­ Also termed constructive parent. See adoption by estoppel under ADOPTION. Cf. psychological parent; de facto parent. [Cases: Children Out-of-Wedlock C=14.] foster parent. (l7c) An adult who, though without blood ties or legal ties, cares for and rears a child, esp. an orphaned or neglected child who might otherwise be deprived of nurture, usu. under the auspices and direction of an agency and for some compensation or benefit. • Foster parents sometimes give care and support temporarily until a child is legally adopted by others. See FOSTER CARE. Cf. foster child under CHILD. [Cases: Infants C=226.] genetic parent. See biological parent. godparent. See GODPARENT. intended parent. See intentional parent. intentional parent. The person whose idea it is to have and raise a child and who (1) enters into a surrogacy contract with a surrogate mother, and (2) is the legal parent of the child regardless of any genetic link to the child. - Also termed intended parent. See intended child under CHILD. noncustodial parent. In the child-custody laws of some states, a parent without the primary custody rights of a child; esp., the parent not awarded physical custody of a child in a divorce .• The noncustodial parent is typically awarded visitation with the child. - Also termed nonresidential parent; possessory conservator; absent parent. See PHYSICAL CUSTODY (2). Cf. custo­ dial parent. [Cases: Child Custody C=20-231.] nonresidential parent. See noncustodial parent.

1223

parent by estoppel. A man who, though not a child's legal father, is estopped from denying liability for child support. • This estoppel usu. arises when the man (1) has lived with the child for at least two years, (2) has believed in good faith that he was the child's father, (3) has accepted parental responsibilities, and (4) has entered into a coparenting agreement with the child's mother and when the court finds that recognition of the status of parent is in the child's best interests. See ESTOPPEL. [Cases: Children Out­ of-Wedlock primary domiciliary parent. Jn a joint-custody arrangement, the parent who exercises primary physical custody. See joint custody under CUSTODY (2). [Cases: Child Custody~147.] psychological parent. A person who, on a continuing and regular basis, provides for a child's emotional and physical needs .• The psychological parent may be the biological parent, a foster parent, a guardian, a common-law parent, or some other person unrelated to the child. residential parent. A parent who has primary residen­ tial responsibility for a child and who is not a dual­ residential parent. See RESIDENTIAL RESPONSIBILITY. Cf. dual-residential parent. [Cases: Child Custody C-~ 147,209.] stepparent. (1840) The spouse of one's mother or father by a later marriage. [Cases: Child Custody C=>272; Parent and Child C-~ 14.] surrogate parent. (1972) 1. A person who carries out the role of a parent by court appointment or the volun­ tary assumption of parental responsibilities. [Cases: Parent and Child ~ 15.] 2. See surrogate mother (2) under MOTHER. 2. See parent corporation under CORPORATION. parentage (pair-;m-tij or par-). (ISc) The state or condi­ tion of being a parent; kindred in the direct ascending line. [Cases: Parent and Child C=> 1.] parentage action. See PATER::-IITY SUIT. parental access. See VISITATION (2). parental-alienation syndrome. See PARENT-ALIENATION SYNDROME.

parental-autonomy doctrine. The principle that a parent has a fundamental right to raise his or her child and to make all decisions regarding that child free from governmental intervention, unless (1) the child's health and welfare are jeopardized by the parent's decisions, or (2) public health, welfare, safety, and order are threat­ ened by the parent's decisions .• The Supreme Court first recognized the doctrine ofparental autonomy over the family in Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625 (1923). Also termed Jamily-autonomy doctrine. Cf. PARENTAL-PRIVILEGE DOCTRINE. [Cases: Infants 154.1; Parent and Child C::: 1.] parental consent. See CONSENT (1). parental-consent statute. A statute that requires a minor to obtain his or her parent's consent before receiving

parental-liability statute

elective medical treatment, such as an abortion.• Without parental consent, a physician or other medical professional commits a battery upon a child when giving nonemergency medical treatment. To pass constitutional muster, a parental-consent statute must include a judicial-bypass provision. Planned Parent­ hood oj Southeastern Pa. v. Casey, 505 U.S. 833, 112 S. Ct. 2791 (1992). Also termed parental-consent treatment statute. See JUDICIAL-BYPASS PROVISION. Cf. PARENTAL-NOTIFICATION STATUTE; MATURE-MINOR

[Cases: Abortion and Birth Control (;::J 116.J parental-consent treatment statute. See PARENTAL­ DOCTRINE.

CONSENT STATUTE.

parental consortium. See CONSORTIUM. parental-discipline privilege. A parent's right to use reasonable force or to impose reasonable punishment on a child in a way that is necessary to contro!' train, and educate.• Several factors are used to determine the reasonableness ofthe action, including whether the actor is the parent; the child's age, sex, and physical and mental state; the severity and foreseeable consequences of the punishment; and the nature of the misconduct. Cf. PARENTAL-PRIVII-EGE DOCTRINE. [Cases: Parent and Child parental functions. See PARENTING FUNCTIONS. parent-alienation syndrome. A situation in which one parent has manipulated a child to fear or hate the other parent; a condition resulting from a parent's actions that are designed to poison a child's relationship with the other parent.• Some mental-health specialists deny that this phenomenon amounts to a "psychologi­ cal syndrome." - Also termed parental-alienation syndrome. [Cases: Child CustodyC=>S7, 569.] parental immunity. See IMMUNITY (2). parental-immunity doctrine. See parental immunity (1) under IMMUNITY (2). parental kidnapping. See KIDNAPPING. Parental Kidnapping Prevention Act. A federal law, enacted in 1980, proViding a penalty for child-kidnap­ ping by a noncustodial parent and requiring states to recognize and enforce a child-custody order rendered bv a court of another state. 28 USCA § 1738A; 42 USCA §§ 654, 655, 663. - Abbr. PKPA. Cf. UNIFORM CHILD CUSTODY JURISDICTION ACT; FEDERAL KIDNAPPING ACT. [Cases: Child Custody ~-;::723, 738.] parental-liability statute. (1963) A law obliging parents to pay damages for torts (esp. intentional ones) com­ mitted bv their minor children .• All states have these laws, but most limit the parents' monetary liability to about $3,000 per tort. Parents can also be held crimi­ nally liable for the acts of their children. One group of laws is aimed at contributing to the delinquency and endangering the welfare ofa minor. More recently, the laws have been directed at improper supervision and failure to supervise. The first law aimed at punishing parents for the acts of their children was enacted in

parental-notification statute

Colorado in 1903. Bv 1961 all buttwo states had enacted similar laws. At le~st five states make it a felony for a parent to intentionally, knowingly, and recklessly provide a firearm to a child, or permit the child to handle a firearm, when the parent is aware of a substan­ tial risk that the child will use the weapon to commit a crime. Also termed parental-responsibility statute; failure-to-supervise statute. Cf. PARENTAL-RESPO:-.fSI­ BILITY STATUTE. [Cases: Parent and Child (';:::;> 13.5.] parental-notification statute. A law that requires a phy­ sician to notify a minor's parent ofher intention to have an abortion. Cf. PARENTAL-CONSENT STATUTE. [Cases: Abortion and Birth Control ~ 117.] parental-preference doctrine. (1974) The principle that custody of a minor child should ordinarily be granted to a fit parent rather than another person.• The prefer­ ence can be rebutted by proof that the child's best inter­ ests are to the contrary. - Also termed parental-rights doctrine; parental-superior-rights doctrine; parental­ presumption rule. Cf. BEST INTERESTS OF THE CHILD. [Cases: Child Custody (';:::;>42,460.] parental-presumption role. See PARENTAL-PREFERENCE DOCTRINE. parental-privilege doctrine. The parent's right to dis­ cipline his or her child reasonably, to use reasonable child-rearing practices free of governmental interfer­ ence, and to exercise decision-making authority over the child. Cf. PARENTAL-AUTONOMY DOCTRINE; PAREN­ TAL-DISCIPLINE PRIVILEGE. [Cases: Parent and Child parental-responsibility statute. (1956) 1. A law imposing criminal sanctions (such as fines) on parents whose minor children commit crimes as a result ofthe parents' failure to exercise sufficient control over them. - Also termed control-your-kid law. 2. PARE:-.fTAL-LIABILITY STATUTE. [Cases: Parent and Child (';:::;> 13.5(2,4).] parental rights. (18c) A parent's rights to make all deci­ sions concerning his or her child, including the right to determine the child's care and custody, the right to educate and discipline the child, and the right to control the child's earnings and property. See TERMI­ NATION OF PARENTAL RIGHTS. [Cases: Parent and Child parental-rights doctrine. See PARENTAL-PREFERENCE DOCTRINE. parental-superior-rights doctrine. See PAREKTAL-PREF­ ERENCE DOCTRINE. parent application. See PATENT APPLICATION. parent by estoppel. See PARENT. parent-child immunity. See parental immunity (1) under IMMUNITY (2). parent-child relationship. See RELATIONSHIP. parent committee. See COMMITTEE. parent company. See parent corporation under CORPO­ RATION. parent corporation. See CORPORATION.

1224

parentela (par-an-tee-la), n. pl. [Law Latin] (15c) Persons who can trace descent from a common ancestor. parentelic method (par-an-tee-lik or -tel-ik). (1935) A scheme of computation used to determine the paternal or maternal collaterals entitled to inherit when a child­ less intestate decedent is not survived by parents or their issue.• Under this method, the estate passes to grandparents and their issue; ifthere are none, to great­ grandparents and their issue; and so on down each line until an heir is found. The Uniform Probate Code uses a limited parentelic system: it looks first to the grand­ parents and their issue, but if no heir is found in that line, the search ends and the estate escheats to the state. See DEGREE (5). Cf. GRADUAL METHOD. parent filing date. See effective filing date under DATE. parenticide (pa-ren-t. ­ Also termed named partner; title member. nominal partner. (18c) A person who is held out as a partner in a firm or business but who has no actual interest in the partnership. Also termed ostensible partner; partner EJyestoppel.

partnership

1230

a person's spouse, ancestors, lineal descendants, siblings, and any trusts established primarily for the benefit of those persons. See FAMILY-PARTNERSHIP

ostensible partner. See nominal partner. partner by estoppel. See nominal partner. partner in commendam (in b-men-ddm). See limited partner. quasi-partner. (1809) A person who joins others in an enterprise that appears to be, but is not, a partnership. • A joint venturer, for example, is a quasi-partner. secret partner. (18c) A partner whose connection with the firm is concealed from the public. - Also termed sleeping partner. senior partner. (18c) A high-ranking partner, as in a law firm. silent partner. (18c) A partner who shares in the profits but who has no active voice in management of the firm and whose existence is often not publicly dis­ closed. Also termed dormant partner. [Cases: Part­ nership "It is worth emphasizing that control does not necessar­ ily mean active involvement. One of the most interesting figures in partnership law. in fact, is the 'silent' partner­ typically a person who has invested in a business in return for a profit share, and who reserves the right to, and to some extent may in fact, participate in routine manage­ ment decisions, may participate in no decisions at all, and may even be unaware of what is happening in the business for long periods of time. The fact of the person's financial interest in the partnership may be a secret from everyone except the other partners (indeed, such secrecy may be vital). Such a person is nonetheless a partner like any other for purposes, among other things, of personal liability for the debts of the partnership. The law simply does not distinguish between active and passive partners." William A. Klein &John C. CoffeeJr., Business Organization and Finance 64 (2002).

sleeping partner. See secret partner. special partner. See limited partner. surviving partner. (17c) The partner who, upon the partnership's dissolution because of another part­ ner's death, serves as a trustee to administer the firm's remaining affairs. [Cases: Partnership C:=>280.] partnership. (16c) A voluntary association of two or more persons who jointly own and carryon a business for profit .• Under the Uniform Partnership Act, a partnership is presumed to exist if the persons agree to share proportionally the business's profits or losses. Cf. JOINT VENTURE; STRATEGIC ALLIANCE. [Cases: Partnership collapsible partnership. (1962) Tax. A partnership formed by partners who intend to dissolve it before they realize any income.• Any partner's gain result­ ing from unrealized receivables or inventory that has increased substantially in value will be treated by the IRS as ordinary income rather than as capital gain. IRC (26 USCA) § 751. Cf. collapsible corpora­ tion under CORPORATION. [Cases: Internal Revenue C:=>3931,3935.] commercial partnership. See trading partnership. family partnership. (1902) A business partnership in which the partners are related. IRC (26 USCA) § 704(e).• In this phrase, the term family includes

RULES.

,

general partnership. (18c) A partnership in which all partners participate fully in running the business and share equally in profits and losses (though the partners' monetary contributions may vary). [Cases: Partnership 79,86, 87.J implied partnership. See partnership by estoppel. limited-liability partnership. (1910) A partnership in which a partner is not liable for a negligent act com­ mitted by another partner or by an employee not under the partner's supervision .• All states have enacted statutes that allow a business (typically a law firm or accounting firm) to register as this type of partnership. Abbr. L.L.P. [Cases: Partnership C:=> 371.J limited partnership. (l8c) A partnership composed of one or more persons who control the business and are personally liable for the partnership's debts (called general partners), and one or more persons who contribute capital and share profits but who cannot manage the business and are liable only for the amount of their contribution (called limited partners) . • The chief purpose of a limited partner­ ship is to enable persons to invest their money in a business without taking an active part in managing the business, and without risking more than the sum originally contributed, while securing the coopera­ tion of others who have ability and integrity but insuf­ Also termed special ficient money. Abbr. L.P. partnership; (in civil law) partnership in commendam. [Cases: Partnership (,':J349-376.] "Unknown at common law, the limited partnership was derived from the commenda or societe en commandite of continental Europe to permit a person to invest and share in the profits of a partnership business and yet limit one's liability to one's investment. It was first recognized in the United States by a New York statute of 1822. It is now rec­ ognized by statute in all Americanjurisdictions." Henry G. Henn & John R. Alexander, Laws of Corporations § 28, at 86 (3d ed. 1983). "[Tjhe two primary characteristics of a limited partnership [arejliability of limited partners only for their agreed con­ tributions, and a hierarchical structure with management in one or more general partners and very little power or authority in the limited partners. Thus, limited partners are typically - although not necessarily······· passive contribu· tors of capital. ... In this respect they resemble sharehold­ ers in a corporation, but, depending on the details of the organizational documents, they may have greater or lesser rights." 3 Alan R. Bromberg & Larry E. Ribstein, Bromberg and Ribstein on Partnerships § 12.01, at 12:5-12:6 (1999).

master limited partnership. See publicly traded part­ nership. nontrading partnership. A partnership that does not buy and sell but instead is a partnership of employ­ ment or occupation. - Also termed noncommercial partnership. • This type ofpartnership offers services rather than goods.

1231

particular partnership. A partnership in which the members unite to share the benefits ofa single trans­ action or enterprise. partnership at will. (1849) A partnership that any partner may dissolve at any time without thereby incurring liability. Cf. partnership for a term. [Cases: Partnership (;::::::;C259.5.]

party

partnership association. (1812) A business organization that combines the features ofa limited partnership and a close corporation .• Partnership associations are stat­ utorily authorized in only a few states. Also termed statutory partnership association; limited partnership association. [Cases: Partnership 129.J a legal partnership between the partner and the non­ "Part performance is not an accurate deSignation of such acts as taking possession and making improvements partner. when the contract does not provide for such acts. but such tiered partnership. An ownership arrangement con­ acts regularly bring the doctrine into play. The doctrine is contrary to the words of the Statute of Frauds, but it sisting of one parent partnership that is a partner in was established by English courts of equity soon after the one or more subsidiary partnerships. enactment of the Statute. Payment of purchase-money, trading partnership. A partnership whose usual without more, was once thought sufficient to justify specific enforcement, but a contrary view now prevails, business involves buying and selling. Also termed since in such cases restitution is an adequate remedy. commercial partnership. English decisions treated a transfer of possession of the land as sufficient, if unequivocally referable to the oral umbrella limited partnership. A limited partner­ agreement, apparently on the ground that the promise ship used by a real-estate investment trust to acquire to transfer had been executed by a common·law convey­ investment properties in exchange for shares in the ance. Such decisions are not generally followed in the partnership. See umbrella-partnership real-estate United States. Enforcement has instead been justified on the ground that repudiation after 'part performance' investment trust under REAL-ESTATE INVESTMENT TRUST.

universal partnership. A partnership formed by persons who agree to contribute all their individu­ ally owned property and to devote all their skill, labor, and services to the partnership. [Cases: Part­ nership (;::::) 22.]

partnership agreement. (1802) A contract defining the partners' rights and duties toward one another not the partners' relationship with third parties. - Also termed articles ofpartnership. [Cases: Partnership 22,71.]

amounts to a 'virtual fraud.' A more accurate statement is that courts with equitable powers are vested by tradition with what in substance is a dispensing power based on the promisee's reliance, a discretion to be exercised with caution in the light of all the circumstances." Restatement (Second) of Contracts § 129 cmt. a (1979).

part-sovereign state. See SOVEREIGN STATE. party. (l3c) l. One who takes part in a transaction . [Cases: Contracts "Note, that if an Indenture be made between two as Parties thereto in the Beginning, and in the Deed one of them grants or lets a Thing to another who is not named in the Beginning, he is not Party to the Deed, nor shall take

1232

party-column ballot any Thing thereby." John Rastell, Les Termes de la Ley471 (26th ed. 1721). "A person who takes part in a legal transaction or pro· ceeding is said to be a party to it. Thus, if an agreement, conveyance, lease, or the like, is entered into between A. and B., they are said to be parties to it: and the same expression is often, though not very correctly, applied to the persons named as the grantors or releasors in a deed· polL" 2 Stewart Rapalje & Robert L. Lawrence, A Dictionary of American and English Law 930 (1883).

party ofthe first part. (18c) Archaic. The party named first in a contract; esp., the owner or seller. party of the second part. (18c) Archaic. The party named second in a contract; esp., the buyer. 2. One by or against whom a lawsuit is brought . _ For purposes of res judicata, a party to a lawsuit is a person who has been named as a party and has a right to control the lawsuit either personally, or, if not fully competent, through someone appointed to protect the person's interests. [Cases: Federal Civil Procedure (;='101.] adverse party. (I5c) A party whose interests are opposed to the interests of another party to the action. Cf. hostile witness under WITNESS. aggrieved party. (17c) A party entitled to a remedy; esp., a party whose personal, pecuniary, or property rights have been adversely affected by another person's actions or by a court's decree or judgment. - Also termed party aggrieved; person aggrieved. [Cases: Action (::::: 13; Appeal and Error (;::::> 151; Federal Civil Procedure (;=~ 103.2.] coparty. See COPARTY. fictitious party. A person who is named in a writ, com­ plaint, or record as a party in a suit, but who does not actually exist, or a person who is named as a plain­ tiff but is unaware of the suit and did not consent to be named. [Cases: Federal Civil Procedure (;::::> 101; Parties (;::::>73.] formal party. See nominal party. indispensable party. (1821) A party who, having inter­ ests that would inevitably be affected by a court's judgment, must be included in the case. _ If such a party is not included, the case must be dismissed. Fed. R. Civ. P. 19(b). Cf. necessary party. [Cases: Federal Civil Procedure (;::::>203; Parties (;::::>, 18,29.] innocent party. (16c) A party who did not consciously or intentionally participate in an event or transac­ tion. interested party. (17c) A party who has a recognizable stake (and therefore standing) in a matter. - Abbr. IP. [Cases: Action (;::::> 13; Federal Civil Procedure (;::::> 103.2.] joint party. See COPARTY. necessary party. (18c) A party who, being closely con­ nected to a lawsuit, should be included in the case if feasible, but whose absence will not require dismissal of the proceedings. See compulsory joinder under

JOINDER. Cf. indispensable party. (Cases: Federal Civil Procedure (;::::>202; Parties (;::::> 18,29.] nominal party. (18c) A party to an action who has no control over it and no financial interest in its outcome; esp., a party who has some immaterial interest in the subject matter of a lawsuit and who will not be affected by any judgment, but who is nonetheless joined in the lawsuit to avoid procedural defects. ­ An example is the disinterested stakeholder in a gar­ nishment action. - Also termed formal party. Cf. real party in interest. [Cases: Federal Civil Procedure 102; Parties ("-'4.] party aggrieved. See aggrieved party. party cast. The losing party in a lawsuit. party in interest. See real party in interest. party opponent. (18c) An adversary in a legal proceed­ ing. Sometimes written party-opponent. party to be charged. (1923) A defendant in an action to enforce a contract falling within the statute of frauds. prevailing party. (17c) A party in whose favor a judgment is rendered, regardless of the amount of damages awarded 6(2).]

"[Tlhe 'real party in interest' is the party who, by the sub­ stantive law, possesses the right sought to be enforced, and not necessarily the person who will ultimately benefit from the recovery .... The concept of real party in interest should not be confused with the concept of standing. The standing question arises in the realm of public law, when governmental action is attacked on the ground that it violates private rights or some constitutional principle .... Unfortunately, ... confusion between standing on the one hand and real party in interest or capacity on the other has been increasing." Charles Alan Wright, The Law of Federal Courts § 70, at 490 & n.2 (5th ed. 1994).

successful party. See prevailing party. third party. See THIRD PARTY. 3. POLITICAL PARTY. party-column ballot. See BALLOT (4).

passport

1233

party wall. See WALL. parum cavisse videtur (par-dm b-vis-ee vI-dee-tdr). [Latin] Hist. He seems to have taken too little care; he seems to have been incautious .• This expression was used by a judge when pronouncing a death sentence. par value. The value of an instrument or security as shown on its face; esp., the arbitrary dollar amount assigned to a stock share by the corporate charter, or the principal ofa bond at maturity. - Often shortened to par. Also termed face value; nominal value; stated value. [Cases: Corporations ~~99(3).1 "At one time par value had considerable importance because it was widely viewed as the amount for which the shares would be issued: shares with a par value of one hundred dollars could be subscribed for at one hundred dollars per share with confidence that all other identi­ cal shares would also be issued for $100. This practice, however, long ago fell into disuse. Today, par value serves only a minor function and is in no wayan indication of the price at which the shares are issued, with this one excep­ tion: The one basic rule about setting the price for shares of common stock with a par value is that the price must be equal to or greater than par value." Robert W. Hamilton, The Law of Corporations in a Nutshell 109 (3d ed. 1991).

par-value stock. See STOCK. parvis (pahr-vis). [fro Old Fr. pareis "paradise," fro Late Latin paradsus "garden"] Hist. An academic exercise, such as a moot court. Also spelled pervise; parvise. pass, vb. (14c) 1. To pronounce or render an opinion, ruling, sentence, or judgment . 2. To transfer or be trans­ ferred . 3. To enact (a legislative bill or resolution); to adopt . See ADOPTION (5). 4. To approve or certify (something) as meeting specified require­ ments . 5. To publish, transfer, or circu­ late (a thing, often a forgery) . 6. To forgo or proceed beyond . 4. The act of coming and going . pass-along, adj. See PASS-THROUGH. passbook. A depositor's book in which a bank records Also termed all the transactions on an account. bankbook. passed dividend. See DIVIDEND. passim (pas-im), adv. [Latin] (17c) Here and there; throughout (the cited work) .• In modern legal writing, the citation signal see generally is preferred to passim as a general reference, although paSSim can be useful in a

I

brief's index of authorities to show that a given author­ ity is cited throughout the brief. passing off, n. (1900) Intellectual property. The act or an instance of falsely representing one's own product as that of another in an attempt to deceive potential buyers.• Passing off is actionable in tort under the law of unfair competition. It may also be actionable as trademark infringement. Also termed palming off; misrepresentation ofsource. Cf. MISAPPROPRIATION. [Cases: Antitrust and Trade Regulation (;-.;;>41; Trade­ marks C=' 1428(1).J pass off, vb. reverse passing off. lhe act or an instance of falsely representing another's product as one's own in an attempt to deceive potential buyers. - Also termed reverse palming off. [Cases: Federal Civil Procedure (;=;:2727,2737.1.] passing on. See pass-on defense under DEFENSE (1). passive, adj. Not involVing active participation; esp., of or relating to a business enterprise in which an investor does not have immediate control over the activity that produces income. passive activity. (1962) Tax. A business activity in which the taxpayer does not materially participate and there­ fore does not have immediate control over the income. • A typical example is the ownership and rental of real property by someone not in the real-property business. [Cases: Internal Revenue (;=>3418.] passive adoption-registry statute. See ADOPTION-REG­ ISTRY STATUTE.

passive bond. See BOND (3). passive breach of contract. See BREACH OF CONTRACT. passive concealment. See CONCEALMENT. passive conduct. See CONDUCT. passive debt. See DEBT. passive duty. See negative duty under DUTY (1). passive euthanasia. See EUTHANASIA. passive income. See INCOME. passive investment income. See INCOME. passive loss. See LOSS. passive mercy killing. See DYATHANASIA. passive negligence. See NEGLIGENCE. passive trust. See TRUST. pass-on defense. See DEFENSE (1). passport. 1. A formal document certifying a person's identity and citizenship so that the person may travel to and from a foreign country. [Cases: Aliens, Immigra­ tion, and Citizenship (;=>674.j 2. SEA LETTER. 3. SAFE CONDUCT.

"A passport is the universally accepted evidence of a person's identity and nationality. It does not give its bearer the right to travel in another country, but it does request that other governments permit him to travel in their ter­ ritories or within their jurisdictions. It also entitles him to the protection and assistance of his own diplomatic and

Passport Office consular officers abroad." Burdick H. Brittin, International Law for Seagoing Officers 183 (4th ed. 1981).

Passport Office. See BUREAU OF CONSULAR AFFAIRS. pass the witness. See TAKE THE WITNESS. pass-through, adj. (1951) (Of a seller's or lessor's costs) chargeable to the buyer or lessee. Also termed passalong. pass-through security. See SECURITY. pass-through taxation. See TAXATION. past consideration. See CONSIDERATION (1). past recollection recorded. Evidence. A document con­ cerning events that a witness once knew about but can no longer remember.• The document itself is evidence and, despite being hearsay, may be admitted and read into the record if it was prepared or adopted by the witness when the events were fresh in the witness's memory. Fed. R. Evid. 803(5). Also termed recorded recollection; past recorded recollection. Cf. PRESENT RECOLLECTION REFRESHED. [Cases: Criminal Law~ 435; Evidence ~355(6).1 Pasula-Robinette test. The principle that if a miner establishes a prima facie case of retaliation for filing a claim under the Mine Safety and Health Act, the mine operator can still prevail by proving, as an affirmative defense, that (1) the miner did not engage in a protected activity, (2) the adverse action was based on the miner's unprotected activity, and (3) the mine operator would have taken the same action based solely on the unpro­ tected activity.• To establish a prima facie case ofretal­ iation, the evidence must show that the miner engaged in a protected activity and that an adverse employment action occurred based at least in part on that activity. 30 USCA § 815(c); Secretary ex rei. Pasula v. Consolida­ tion Coal Co., 2 FMSHRC 2786 (1980); Secretary ex reI. Robinette v. United Coal Co., 3 FMSHRC 802 (1981). pat-down, n. See FRISK. pateat universis per praesentes (pat-ee-at yoo-n;l-var­ sis par pri-zen-teez). [Law Latin) Let it be open to all men by these presents. Cf. KNOW ALL MEN BY THESE PRESENTS; NOVERINT UNIVERSI PER PRAESENTES.

Pate hearing. A proceeding in which the trial court seeks to determine whether a criminal defendant is com­ petent to stand trial. Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836 (1966); 18 GSCA § 4241. Also termed competency hearing; incompetency hearing. [Cases: Criminal Law C::~'625.1O-625.35.1 patent (pay-t;lnt), adj. (14c) Obvious; apparent . Cf. LATENT. [Cases: Evidence (;:::451.] patent (pat-ant), n. (14c) 1. The governmental grant of a right, privilege, or authority. 2. The official document so granting. - Also termed public grant. See LETTERS PATENT.

call patent. A land patent in which the corners have been staked but the boundary lines have not been run out at the time of the grant. escheat patent. See escheat grant under GRANT.

1234

land patent. An instrument by which the government conveys a grant of public land to a private person. Public Lands Cr-::·114(l).] lapse patent. A land patent substituting for an earlier patent to the same land that lapsed because the previous patentee did not claim it. 3. The right to exclude others from making, using, marketing, selling, offering for sale, or importing an invention for a speCified period (20 years from the date of filing), granted by the federal government to the inventor if the device or process is novel, useful, and nonobvious. 35 USCA §§ 101-103.• The holding of a patent alone does not by itself grant any right to make, use, or sell anything if that activity would infringe another's blocking patent. - Also termed patent right; patent grant. [Cases: Patents ~ 1.] 'The franchise which the patent grants consists altogether in the right to exclude everyone from making, using or vending the patented article, without the permission of the patentee. This is all he obtains by the patent." Bloomer v. McQuewan, 55 U.S. 539, 549 (1852). "What, exactly, is a patent and how does it operate to foster the 'progress of the useful arts'? In its simplest terms a patent is an agreement between an inventor and the publiC, represented by the federal government: in return for a full public disclosure of the invention the inventor is granted the right for a fixed period of time to exclude others from making, usi ng, or selling the defined invention in the United States. It is a limited monopoly, designed not primarily to reward the inventor (this mayor may not follow), but to encourage a public disclosure of inventions so that after the monopoly expires, the public is free to take unrestricted advantage of the invention." Earl W. Kintner &Jack l. Lahr, An Intellectual Property Law Primer 7-11 (2ded.1982).

basic patent. See pioneer patent. blocking patent. One of two patents, neither of which can be effectively practiced without infringing the other.• For example, if A patents an improvement of B's patented invention, A cannot practice the improvement without infringing B'g patent. Nor can B use the improvement without infringing A's patent. Owners of blocking patents often cross-license each other. See fencing patent; DOMINATION. broadened reissue patent. Patents. A patent that is issued again, having broader claims than the original, surrendered patent. • Under 35 USCA § 251, a patent may be reissued, under certain circumstances, with broader claims than the original patent if the reissue application is filed within two years of the grant of the original patent. See INTERVENING RIGHTS. [Cases: Patents (':::> 141(3).) business-method patent. A U.S. patent that describes and claims a series of process steps that, as a whole, constitutes a method ofdoing business .• Until 1998, methods for doing business were not expressly rec­ ognized as being patentable. In that year, the Federal Circuit Court of Appeals held in State Street Bank & Trust Co. v. Signature Fin. Group, Inc., 140 F.3d 1368 (Fed. Cir. 1998), that business methods are subject to the same legal requirements for patentability as any

patent

1235

other process or method. - Also termed cyberpatent. [Cases: Patents (;::::::'7.14.] combination patent. A patent granted for an inven­ tion that unites existing components in a novel and nonobvious way. [Cases: Patents (;::::::26.] Community patent. An international patent issued by the European Patent Office. - Community patents are good for 20 years from the application date. They may be registered in any nation in the European Union and other EPC signatories. copending patent. A patent whose application is being prosecuted at or near the same time as another, similar patent. _ Continuing applications must be copend­ ing with an existing patent application. A copend­ ing patent may affect another patent's validity if it discloses the same invention, or discloses some part of the invention that, combined with other prior art, results in anticipation (esp. if the copending patent is issued before the affected patent). A copending patent may be shown to be an unpatentable improvement on another copending patent's invention. 35 USCA § 102(e). See eOPENDING. [Cases: Patents (;:::::: 110,7.] cyberpatent. 1. See business-method patent. 2. See Internet patent. design patent. A patent granted for a new, original, and ornamental design for an article of manufacture; a patent that protects a product's appearance or non­ functional aspects. - Design patents - which, unlike utility patents, have a term of only 14 years from the date the patent is granted - are similar to copyrights. 36 USCA § 171. [Cases: Patents dominating patent. See fencing patent. fencingpatent. A patent procured for some aspect of an invention that the inventor does not intend to produce but that the inventor wants to prevent competitors from using in making improvements. - By making a claim whose only purpose is to protect other claims, the inventor seeks to "fence in" any such competing improvements. Courts disfavor fenCing claims. ­ Also termed dominating patent. [Cases: Patents 121.] improvement patent. A patent having claims directed to an improvement on a preexisting invention. _ If the preexisting invention is patented by another, the owner of the improvement patent may need a license to practice the invention covered by the claims of the improvement patent. Similarly, the owner of the preexisting invention's patent may need a license to practice the invention in the improvement patent. Cf. pioneer patent. [Cases: Patents (>:::J9.] in-force patent. A patent that has not expired or been ruled invalid. Internet patent. A type of utility patent granted on an invention that combines business methods and software programs for Internet applications. - Also termed cyberpatent.

method patent. A patent having method or process claims that define a series of actions leading to a tangible physical result. - Also termed process patent. [Cases: Patents paper patent. A patent granted for a discovery or invention that has never been used commercially. - A paper patent may receive less protection under the law than a patent granted for a device that is actually used in industry. As a prior-art reference, a paper patent may carry less weight with examiners than one for an invention that has been commercially exploited, because it may suggest that the invention did not work as claimed. [Cases: Patents pioneer patent. A patent covering a function or a major technological advance never before performed, a wholly novel device, or subject matter of such novelty and importance as to mark a distinct step in the progress of the art, as distinguished from a mere improvement or perfection of what had gone before. _ Under U.S. law, the claims of a pioneer patent are entitled to broader interpretation and to be given a broader range ofequivalents. A pioneer patent is usu. the first one documented by a patent-tracking service, although it may not be the first patent published by a national registry, such as the PTa. - Cf. improve­ ment patent. [Cases: Patents C=> 173.] 'To what liberality of construction these claims are entitled depends to a certain extent upon the character of the inven· tion, and whether it is what is termed on ordinary parlance a 'pioneer.' This word, although used somewhat loosely, is commonly understood to denote a patent covering a function never before performed, a wholly novel device, or one of such novelty and importance as to mark a distinct step in the progress of the art, distinguished from a mere improvement or perfection of what had gone before" West· inghouse v. Boyden Power Brake Co., 170 U.S. 537,561-62, 18 S.O. 707, 718 (1898).

plant patent. A patent granted for the invention or discovery of a new and distinct variety of asexually reproducing plant. 36 USCA § 161. [Cases: Patents (>::)14.]

process patent. A patent for a method of treating spec­ ified materials to produce a certain result; a patent outlining a means of producing a physical result independently of the prodUcing mechanism. - The result might be brought about by chemical action, by applying some element or power of nature, by mixing certain substances together, or by heating a substance to a certain temperature. See method patent. [Cases: Patents reissue patent. A patent that is issued to correct unin­ tentional or unavoidable errors in an original patent, such as to revise the specification or to fix an invalid claim. - A reissue may correct patent defects that might call the validity of the patent into question. It is also used, although rarely, to make the claims broader or narrower. The patentee risks the possibil­ ity that previously allowed claims may be rejected. It does not change the term of the patent. 35 USCA § 251. Sometimes shortened to reissue. [Cases: Patents C=> 135.]

submarine patent. Slang. A patent that is delayed in prosecution by the applicant in order to let an infring­ ing user continue to develop its business, with the intention oftaking in later-invented technology once the patent finally "surfaces" from the U.s. Patent and Trademark Office. - Typically, the patent applicant is aware of the developments and consciously delays the PTa's issuance of a patent, so that the invention's unwitting users will be forced to pay license fees. As of29 November 2000, most patent applications must be published within 18 months of filing, so submarine patents are relatively rare now. See CONTINUATION­ APPI.ICATION LACHES DOCTRINE.

utility-model patent. See UTILITY MODEL. utility patent. A patent granted for one ofthe following types of inventions: a process, a machine, a manu­ facture, or a composition of matter (such as a new chemical).• Utility patents are the most commonly issued patents. 35 USCA § 101. [Cases: Patents ~ 1.]

patentability opinion. See OPINION (2). patentability search. An inventor's research into a field's state of the art to determine whether an invention will qualify for patent protection. Cf. INfRINGEMENT SEARCH; VALIDITY SEARCH.

patentable, adj. Capable of being patented <patentable processes>. patentable combination. A series of process steps, mechanical elements, or a mixture of materials that produce a desirable result or effect that is not obvious from the qualities of the individual components or steps. [Cases: Patents ~7.1O.1 patentable subject matter. Things that by law can be patented; any machine, process, manufacture, or material composition, or an improvement to such things, that (1) is discovered or invented, (2) is new and useful, and (3) meets the statutory conditions and requirements to qualify for a patent. • Patents may be issued for "any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof." 35 USCA § 101. Patents may not be issued for laws of nature, naturally occur­ ring materials, physical phenomena, or abstract ideas and formulas. But if a naturally occurring material is processed in a way that gives it a new use, that process may be patentable. - Often shortened to subject matter. - Also termed statutory subject matter. [Cases: Patents Patent Act. The current federal statute governing patent registrations and rights, enacted in 1952.35 USCA §§ 1 et seq.• The Act reversed several Supreme Court doc­ trines of patentability by eliminating the synergism and "flash ofgenius" requirements for combination patents (§ 103), making "means-plus-function" claims valid once again (§ 112), and narrowing the patent-misuse doctrine of contributory infringement (§ 271). Also termed Patent Act of 1952.

Patent Act of 1790. Hist. The first U.S. patent statute, establishing a board to examine patent applications, specifications, and drawings to determine whether the invention is «suffiCiently useful and important" to justify the granting ofa patent. • The examining board, comprising the Secretary ofState, the Secretary of War, and the Attorney General, was abolished three years later in favor of a simple registration system. Patent Act of 1793. Hist. An early U.S. patent law that (1) abandoned the examination process in favor of simple registration (2) established the infringement defenses of invalidity for lack of novelty or public use; and (3) artic­ ulated the four categories of patentable subject matter as machine, manufacture, composition of matter, and art (now called process). - The State Department handled the registration of patents, and their question of their validity was left up to the courts. Patent Act of 1836. Hist. The U.S. statute that charged the Patent Office with examining patent applications for novelty and utility, and that first required claims in patent applications. Patent Act of 1870. A U.S. statute that shifted the burden of disclosing the exact nature of an invention to the patent applicant by requiring a rigorous listing of distinct claims. - Before the Act was passed, patent claims were less important than the description and drawings, and the scope of the patent grant was often ambiguous. Patent Act of 1952. See PATENT ACT. patent agent. See AGENT (2). patent ambiguity. See AMBIGUITY. Patent and Copyright Clause. (1929) The constitutional provision granting Congress the authority to promote the advancement of science and the arts by establish­ ing a national system for patents and copyrights. U.S. Const. art. I, § 8, cl. 8. [Cases: Patents ~3.] Patent and Trademark Depository Library. A library that has been designated by the U.S. Patent and Trade­ mark Office as an official repository tor information to aid in a patent or trademark search. Abbr. PTDL. Patent and Trademark Law Amendments Act. See BAYH-DOLE ACT.

Patent and Trademark Office. The Department of Commerce agency that examines patent and trade­ mark applications, issues patents, registers trademarks, and furnishes patent and trademark information and services to the public. - Abbr. PTa. [Cases: Patents patent application. An inventor's request for a patent, filed with the U.S. Patent and Trademark Office and accompanied by a specification (ending with at least one claim), drawings, the filing fee, and (except for a provisional patent application) an oath or a declaration. [Cases: Patents G'='98.] allowed application. A patent application for which the U.s. Patent and Trademark Office examiner has determined that at least one pending claim meets the

patent-application amendment

1237

conditions for patentability.• When an application is allowed, the PTO notifies the applicant through a Notice of Allowability and a Notice of Allowance. Once a patent application is allowed, a patent normally issues after the applicant has paid the required issue fee. [Cases: Patents 104.J application for a reissue patent. An application by a patentee to change the scope of a patent that has already been issued, or to correct clerical or tech­ nological errors in the issued patent. • The scope of the claims can be broadened only if the application is made within two years of the date the patent was issued. See reissue patent under PATENT (3). Cf certifi­ cate ofcorrection. [Cases: Patents 104.] child application. A later-filed application in a chain of continuing applications filed during the pendency ofan earlier application and sharing common subject matter.• The first~filed application is called the parent application. Cf. parent application. [Cases: Patents 1l0.]

continued-prosecution application. A request to abandon a patent application after final rejection and reopen a new case with the same file wrapper as the parent application.• CPAs are authorized in 37 CFR § l.S3(d). - Abbe. CPA. Also termed Rule 1.S3(d) application. Cf. REQUEST FOR CONTINUED EXAMINA­ TION. [Cases: Patents 110.] continuing application. A patent application that is filed while the parent application is pending and that carries on prosecution of some or all of the original application.• Continuation, continuation-in-part, divisional, and reissue applications are all forms of continuing applications. [Cases: Patents C=> 1l0.] Convention application. A patent application filed in accordance with the terms of an international patent treaty such as the Paris Convention or the Patent Cooperation Treaty. divisional application. A patent application based on the same disclosure as the original application but claiming a different invention .• Ifan examiner finds that a disclosure reveals two or more distinct inven­ tions, the applicant must restrict the original applica­ tion to claiming one of the inventions. A divisional application can then be filed on any nonelected inven­ tion, and it will keep the same filing date as the parent application. Often shortened to divisional. Also termed restriction application. [Cases: Patents 109.] file-wrapper continuation application. 1. See CON­ TINUATION. 2. See CONTINUATION-IN-PART. grandparent application. The first-filed application in a chain of at least three continuation or continuation­ in-part patent applications. [Cases: Patents C::) 110.) informal application. A patent application that is not in the correct form as required by the U.S. Patent and Trademark Office.• According to the Manual of Patent Examining Procedure, an application is informal if it is printed on both sides of the paper,

or is not permanent, legible, or reproducible. An informal application may be corrected and still retain the original filing date. [Cases: Patents 98.] international application. An application under the Patent Cooperation Treaty for patent protection in specified member nations .• A PCT filing may be added as long as 31 months after the initial filing in a national patent office. It allows for simultaneous patent searches and examinations in multiple coun­ tries. - Also termed PCT application; peTfiling. See i

!

PATENT COOPERATION TREATY.

international application designating the United States. An international-patent application that is filed in accordance with the Patent Cooperation Treaty and specifically seeks patent protection in the United States .• The application may be filed in any nation, including the U.S., that is a party to the treaty. international application originating in the United States. An international-patent application that is filed in the U.S. Patent and Trademark Office in accordance with the Patent Cooperation Treaty.• Under the treaty, the PTO acts as a receiving office for international applications. 1he applicant mayor may not be seeking patent protection in the U.S. [Cases: Patents C:::>97.] parent application.lhe first-filed application in a chain oflater-filed continuation or continuation-in-part applications.• An application becomes the parent application when another type of application (such as continuation, divisional, or substitute) is filed. The term "parent" is generally not used to refer to a provisional application. Cf. child application. [Cases: Patents 110.] provisional application. An application that can be filed up to a year before the patent application itself, in order to establish a date for prior art and constructive reduction to practice.• The PPA must include a full description of the invention, but claims, drawings and prior-art disclosures are not required. Also termed provisional patent application. - Abbr. PPA. [Cases: Patents 98.] restriction application. See divisional application. Rule 1.53 application. See continued-prosecution appli­ cation. substitute application. A duplicate application filed after the response period for a first office action has expired and the first application has been deemed abandoned.• A substitute application carries some danger for the applicant: the original filing date is lost, and any developments since that date become prior art that the examiner must consider before granting the patent. [Cases: Patents 110.) patent-application amendment. A modification to a patent application, usu. narrowing or eliminating some claims in response to an examiner's rejection. [Cases: Patents 109.)

amendment after allowance. An amendment sub­ mitted to the U.S. Patent and Trademark Office after the PTO has mailed notice of a patent application's approval. • Once a notice of allowance has been mailed, prosecution of the application is closed on the merits, and the entry of any amendment is within the discretion of the patent examiner. Amendments after allowance commonly address such matters as an amendment to the specification or claims, a change in the drawings or the list ofinventors, and the submis­ sion of prior art. Amendments that merely correct formal matters in the speCification or drawings, change the claims without changing their scope, or cancel a claim are typically approved by the Office. Amendments ofgreater significance require approval of the supervisory examiner under policies estab­ lished by the group director. CFR § 1.312. - Also termed 312 amendment; Rule 312 amendment. See amendment after payment ofissuefee. [Cases: Patents (;::::> 109.J amendment after appeal. An amendment made after an appeal is taken from a patent application's final rejection.• Such an amendment is not made as a matter of right but is frequently allowed if it puts the case in better form for consideration on appeal or helps implement an examiner's recommendation. [Cases: Patents (;::::> 109.] amendment after final action. An amendment made after final rejection of the patent application .• The amendment may drop claims but not add them. To be entered, it may make changes in form, but may not raise new issues for the examiner. CFR § 1.116. Also termed Rule 116 amendment. [Cases: Patents C.;;c 109.] amendment after payment of issue fee. An amend­ ment made by the applicant after the application has been allowed and the issue fee paid.• Such an amendment is not made as a matter of right but is governed by 37 CFR § 1.312. It must be accompanied by a petition to the Commissioner showing good and sufficient reasons why the amendment was not pre­ sented earlier. See amendment after allowance. [Cases: Patents (;::::> 109.] amendment before first action. See preliminary amend­ ment. amendment in excess offilingfee. An amendment to a patent application that increases the number of claims in the original application and requires payment of an additional fee. preliminary amendment. An amendment filed before the U.S. Patent and Trademark Office issues an office action on a patent application .• Amendments that are not filed with the original application are not con­ sidered part of the original disclosure. - Also termed amendment before first action. [Cases: Patents 109.] Rule 116 amendment. See amendment after final action.

Rule 312 amendment. See amendment after allow­ ance. 312 amendment. See amendment after allowance. patent attorney. A lawyer who drafts and prosecutes patent applications, and who represents inventors in infringement suits and interference hearings .• In addition to a law license, a patent attorney must have a scientific or technical background, pass the patent bar examination, and be licensed by the U.S. Patent and Trademark Office. [Cases: Patents G-~97.1 patent claim. A formal statement describing the novel features of an invention and defining the scope of the patent's protection . Cf. SPECIFI­ CATION (3). [Cases: Patents (;::::> lOL] "[The patent] application concludes with one or more 'claims.' which are summaries of the points of novelty of the invention disclosed by the specification. said claims also following certain fixed forms. If they are broad and in general terms, the patentee will be well protected, and will be the possessor of a worth while patent; but if, on the other hand, the claims are limited in scope, if they recite a multiplicity of exactly stated and unimportant elements, or if they are bad in anyone of a number of other ways, the chances of success are small, the patent will be full of loop· holes of which infringers will be prompt to take advantage, the inventor will not have received all he is entitled to, nor all he has paid for, and, if the claims are very limited, it is more than likely that he will have obtained a patent not worth the paper upon which it is printed." Richard B. Owen, Patents, Trademarks, Copyrights, Departmental Practice 14 (1 925).

apparatus claim. A patent claim on a mechanical device, explaining how the components are con­ nected and function together.• The preamble of an apparatus claim typically states the function of the machine; the body explains its elements and how they work together. appendant claim. See dependent claim. closed-ended claim. A patent claim that expressly limits its scope to a list of elements, typically intro­ duced by the phrase "consisting of." Cf. nearly closed­ ended claim; open-ended claim. [Cases: Patents C=C 101(3).] coined-name claim. A chemical-patent claim con­ sisting only of the name of the new material. • A coined-name claim is allowed by the U.S. Patent and Trademark Office onlv on the rare occasion when the name is established fn the field before the patent is applied for. The chemical composition, its phYSical properties, and the process for making it must still be disclosed in the specification. dependent claim. A patent claim that refers to and further limits another claim or set of claims in the same patent application. Also termed appendant claim. [Cases: Patents C:::>165(5).] design claim. The Single claim allowed in an applica­ tion for a design patent, incorporating by reference the drawing and other specifications .• The brief claim typically starts with "an ornamental design for" and

1239 ends with "as shown" or "as shown and described." Cf. omnibus claim. [Cases: Patents C:-~J 101(4).] fingerprint claim. A chemical-patent claim that differ­ entiates the material from prior art in terms of some physical feature, such as melting point or spectrum, rather than its chemical composition. - Fingerprint claims are allowed only when the chemical composi­ tion cannot be determined or cannot be distinguished from prior art. generic claim. A claim that encompasses a class of elements, any of which could function as equiva­ lents. - For a generic claim to be valid, the specific elements it encompasses must have a definable feature in common that makes them fit for the purpose. ­ Also termed genus claim. Cf. species claim. [Cases: Patents (;::> 101(5).] improvement claim. See Jepson claim. independent claim. A patent claim that does not refer to any other claim. Jepson claim. An improvement-patent claim charac­ terized by a preamble setting forth the current state of the art, followed by the phrase "the improvement comprising" and a description ofthe claimed patent­ able improvement. - The name comes from Ex parte Jepson, 1917 C.D. 62, 243 O.G. 526 (Ass't Comm'r Pat. 19l7), in which this type of claim was first approved and sanctioned bv the Commissioner of Patents. Also termed imp;ovement claim. Markush claim. A patent claim that includes elements listing alternative chemicals, materials, or steps in a process. _ A Markush claim typically has language such as "selected from the group consisting of." The alternatives must all give the same result, rather than patentably distinct products. The name derives from Ex parte Markush, 1925 Dec. Comm'r Pat. 126. See MARKUSH DOCTRINE. [Cases: Patents~101(7).) means-combination claim. A type ofclaim in a patent application that includes multiple limitations, at I least one of which is in means-plus-function or step- . plus-function form. _ Means-combination claims ! are acceptable to examiners. [Cases: Patents ~J I 101(10).) means-plus-function claim. See MEANS-PLUS-FUNC­ TION CLAUSE.

method claim. A patent claim that describes what is done to a workpiece in order to achieve the useful result claimed. - A method claim is the same thing as a process claim, but "method" is used more often i in applications for mechanical and electrical devices. I [Cases: Patents C:-;) 101(11).) . multiple-dependent claim. A dependent claim that refers to more than one other preceding claim. nearly closed-ended claim. A patent claim that limits I its scope to a list of elements but does not expressly exclude close analogues. The claim is typically intro­ duced by a phrase such as "consisting essentially of." Cf. closed-ended claim; open-ended claim.

patent claim

new-use claim. A method claim for a new way of using an existing invention. [Cases: Patents ~27(l).] nonelected claim. A claim that has been withdrawn from consideration based on the examiner's finding that the application claims more than one invention. _ The applicant must elect to prosecute one inven­ tion. Other claims may either be abandoned or else be prosecuted separately under a divisional application. See RESTRICTION (4). nonstatutory claim. See omnibus claim. omnibus claim. A claim in a patent application that does not distinctly narrate a means to carry out a function but rather refers to the drawings or descrip­ tion with phrases such as "as described and shown." ­ Omnibus claims are rejected in the United States but are accepted elsewhere. Also termed nonstatutory claim. Cf. design claim. open-ended claim. A patent claim that contains a nonexclusive list of elements, typically introduced by the phrase "consisting of." - A later patent appli­ cant cannot avoid infringement by merely adding an analogue to the list. Cf. closed-ended claim; nearly closed-ended claim. plant-patent claim. The Single claim in a plant-patent application, describing the principal distinguishing characteristics of the plant. process claim. A patent claim that describes by steps what is done to the subject matter, usu. a substance, in order to achieve a useful result. - A process claim is the same thing as a method claim, but "process" is used more often in applications for chemical patents. [Cases: Patents C:-::> 101(11).] product-by-process claim. A patent claim defining a product through the process by which it is made. - The product-by-process claim is most often used to define new chemical compounds, such as drugs. [Cases: Patents ~ 101(11).] product claim. A patent claim that covers the structure, apparatus, or composition of a product. single-means claim. A type of claim in a patent appli­ cation that indicates a process, result, or function but does not describe the method of reaching that end . _ Where no other method is obvious, such an assertion claims rights to all possible ways of achieving the result - ways not specified in the application and even ways that have not yet been invented. Single-means claims are rejected as too broad. - Also termed single-element means claim. Cf. MEANS-PLUS-FU::-.fCTION CLAUSE. [Cases: Patents :::> 101(8).] species claim. A claim that is limited to a single appa­ ratus, process, composition of matter, or article of manufacture, rather than to a range of similar and related items. Cf generic claim. Squires claim. A utility-patent claim that incorpo­ rates a drawing or table by reference. - This claim is allowed by the u.s. Patent and Trademark Office only

1240

Patent Cooperation Treaty

if there is no practical way to define the invention in words, but the invention is simple to illustrate with the drawing or table. See SQt:lRES DOCTRINE. [Cases: Patents C::;) 101(4).] subcombination claim. A patent claim, usu. on a device, describing a subsystem of a larger combina­ tion.• A subcombination may be patented separately if it has its own utility. [Cases: Patents 101(10).] Patent Cooperation Treaty. A 1970 treaty that stream­ lined the process of securing patents in multiple coun­ tries by establishing a single filing date and providing for a single preliminary patent search .• An inventor who wants to qualify for patents from several member countries files a standard application in one country, thus preserving the priority date, then submits a PCT filing that deSignates which other countries' patents are being applied for. WIPO, the United Nations' World Intellectual Property Organization, administers the treaty. Often shortened to PCT. See international application under PATENT APPLICATION. [Cases: Patents C=>97.] patent danger. See apparent danger (1) under DANGER. patent deed. See LETTERS PATENT (2). patent defect. See DEFECT. patent disclaimer. See statutory disclaimer under DIS­ CLAIMER.

patentee (pat-<m-tee). One who either has been granted a patent or has succeeded in title to a patent. • Although it might seem helpful to distingUish a patentee as a person to whom a patent is issued and a patent­ holder as the owner of a patent, including the original grantee's assigns, the Patent Act explicitly includes all title-holders under the term "patentee," 35 USCA § 100(d). - Also termed patent-holder; patent-owner. [Cases: Patents 117.] patent-exhaustion doctrine. Patents, The rule that the unconditioned sale of a patented article ends the pat­ entee's monopoly right to control its use .• That control may still be exercised by limitations in a contract or license, as long as it does not amount to anticompeti­ tive patent misuse. Adams v. Burke, 84 U.S. (17 Wall.) 453 (1874). See FIRST-SALE DOCTRINE. lCases: Patents C=> 191.] patent grant. See PATENT (3). patent-holder. See PATENTEE. patent infringement, See INFRINGEMENT, patent insurance. See INSURANCE. patent marking. The incorporation or affixation of a patent number to a patented article's surface or sur­ rounding packaging .• AffiXing the patent number to a product gives constructive notice of patent rights to infringers. Without the number in place, a patentee can not recover losses that occur before the infringer has actual notice of the patent. 35 USCA § 287. See PATENT NUMBER, [Cases: Patents C=>222.]

patent medicine. A packaged drug that is protected by trademark and is available without prescription. [Cases: Health C=>302-308.] patent-misuse doctrine. An equitable rule that patentees should not be allowed to use their patent to effectively broaden the scope of their monopoly in restraint of trade or otherwise against the public interest. • Two common examples of anticompetitive broadening are (1) using a patent to restrain competition from an unpatented product or process, and (2) employing the patent beyond its lifespan to exclude others from gaining commercial advantages by using the product or process. The practical effect offinding patent misuse is the loss of patent protection. The doctrine operates independently of antitrust law but overlaps it in many ways and arose in the same era, at the turn of the 20th century. It has been described as an application of the equitable rule of "unclean hands." See nonmetered license under LICENSE. [Cases: Antitrust and Trade Regulation C=>S87(3), 682, 732.] patent number. Patents. The unique eight-charac­ ter number assigned by the U.S. Patent and Trade­ mark Office to a patent upon issuance. See PATENT MARKING.

Patent Office. See UNITED STATES PATENT AND TRADE­ MARK OFFICE.

Patent Office Reports. Hist. The former official publica­ tion of the U.S. Patent and Trademark Office .• It was replaced in 1872 by the Official Gazette of the United States Patent and Trademark Office. patent of precedence. Hist. A royal grant to a person by letters patent of a higher social or professional rank than the person would ordinarily hold or be entitled to. • In the 19th and early 20th centuries, the patent was most often used to give certain barristers more rights and privileges. For example, a King's Counsel could not represent a party against the Crown without a patent of precedence. See PREAUDIENCE. patentor (pat-em-tar or pat-an-tor). One who grants a patent. patent-owner. See PATENTEE. patent pending. (1917) The designation given to an invention while the Patent and Trademark Office is pro­ cessing the patent application. _ No protection against infringement exists, however, unless an actual patent is granted. Abbr. pat. pend. [Cases: Patents C=> 104.1 patent pooling. The cross-licensing of patents among patentees.• Patent pooling does not violate antitrust laws unless it is done to suppress competition or control an industry, [Cases: Monopolies 12(15).] patent-prosecution process. See PROSECUTION (4). patent right. 1. See PATENT (3).2. See RIGHT. patent-right dealer. A person who buys and sells or brokers the sale or purchase of patent rights. Patent Roll. Hist. A list of the letters patent issued in the United Kingdom in any given year.• 'The first Patent Roll was issued in England in 1201. The Rolls

1241

were originally used to grant offices, lands, licenses, peerages, and pensions. In later centuries, they included grants of patents for inventions. patent search. 1. See INFRINGEMENT SEARCH. 2. See PAT­ ENTABILITY SEARCH. 3. See VALIDITY SEARCH. patent solicitor. See patent agent under AGENT (2). patent suppression. The deliberate nonuse of a patent, esp. in order to deny the public or competitors the benefit of the invention. - Patent suppression is a rich source of urban legend, such as the rumor of oil com­ panies sitting on inventions that would greatly improve gas mileage, or pantyhose companies suppressing a patent on no-run nylon. But the stories are not always fictional: in 1942 Standard Oil admitted trying to delay synthetic-rubber technology in order to protect its market in natural rubber. patent term. The period during which a patent is in force. [Cases: Patents (;:::::> 131.] patent-term adjustment. A compulsory extension of the time a utility or plant patent remains in force, following administrative delays in prosecuting the application .• A provision of the American Inventors' Protection Act of 1999, the extension is available for new applications, continuation applications, and divisional applications filed since May 29, 2000. Abbr. PTA. Cf. PATENT­ TERM EXTENSION. [Cases: Patents 133.] patent-term extension. A lengthening of the time a patent remains in force, given to compensate inven­ tors for time lost because of administrative delays such as interferences, secrecy orders, or appeals .• The extension applies to original utility and plant patents issued after June 7, 1995 and before May 29, 2000. Its maximum length is five years. Cf. PATENT-TERM ADJUSTMENT. [Cases: Patents (;:::::> 133.) patent-term guarantee. An inventor's statutory right to extend the term of a patent if the application was delayed by the u.S. Patent and Trademark Office.• The term can be extended up to five years if the applica­ tion was delayed because ofan interference proceeding or appellate review, or if the PTa missed a statutory deadline for certain steps in the prosecution, or failed to grant the patent within three years ofthe filing date. The guarantee took effect May 29, 2000. [Cases: Patents 133.] patent watch. A system for continually monitoring pub­ lished patent applications and newly issued patents in a particular scientific or technological field to detect or ensure against infringements. patent writ. See WRIT. pater (pay-tar), n. [Latin] Father. paterfamilias (pay-tar-fa-mil-ee-as or pah-tJr-), n. [Latin) Roman law. 'The male head of a family or house­ hold, the senior ascendant male; esp., one invested with potestas (power) over another. - Also termed homo sui juris. See patria potestas under POTESTAS. paternal, adj. (15c) Of, relating to, or coming from one's father <paternal property>. Cf. MATERNAL.

patient's bill of rights

paternalism, n. (1873) A government's policy or practice of taking responsibility for the individual affairs of its citizens, esp. by supplying their needs or regulating their conduct in a heavyhanded manner. paternal­ istic, adj. paternal line. See LINE. paternal-line descent. See DESCENT. paternal property. See PROPERTY. paterna paternis (pa-t.u-n;:> p;:>-t3r-nis). [Law Latin] Hist. Goods acquired through the father descend to those connected with him.• The phrase invoked the distinction between the succession of consanguinean half-brothers and uterine half-brothers. Ct: MATERNA MATERNIS.

paternity (pa-t<Jr-ni-tee). (I5c) 1. The state or condition of being a father, esp. a biological one; fatherhood. Cf. FILIATION. [Cases: Children Out-of-Wedlock C= 1.) 2. ATTRIBUTION RIGHT.

paternity action. See PATERNITY SUIT. paternity presumption. See PRESUMPTION

OF PATER­

NITY.

paternity suit. (1945) A court proceeding to determine whether a person is the father of a child (esp. one born out of wedlock), usu. initiated by the mother in an effort to obtain child support. - Also termed paternity action; parentage action; bastardy proceeding; bastardy process. [Cases: Children Out-of-Wedlock c-~30.) paternity test. (1926) A test, usu. involving DNA iden­ tification or tissue-typing, for determining whether a given man is the biological father of a particular child. See DNA IDENTIFICATION; HUMAN-LEUKOCYTE ANTIGEN TEST; BLOOD-GROUPING TEST. [Cases: Children Out-ofWedlock 58.) paterpatriae (pay-tar pay-tree-ee orpa-tree-ee). [Latin] Father of the country. See PARENS PATRIAE. pathological intoxication. See INTOXICATION. pathology (pa-thol-a-jee), n. (l7c) The branch of medical study that examines the origins, symptoms, and nature of diseases. - pathological (path-39-46.] installment payment. One of a series of periodic payments made under an installment plan. See INSTALLMENT SALE. [Cases; Sales (;=, 192.] involuntary payment. (18c) A payment obtained by fraud or duress. [Cases: Payment C='86, 87.] lump-sum payment. (1914) A payment of a large amount all at once, as opposed to a series of smaller payments over time. Cf. periodic payment. part payment. A buyer's delivery of money or other thing of value to the seller, and its acceptance by the seller, when the money or the value of the thing does not equal the full sum owed. [Cases: Sales (;=, 202(7); Vendor and Purchaser C=:> 184.] periodic payment. One of a series of payments made over time instead of a one-time payment for the full amount. Cf. lump-sum payment. two-party payment. A single payment made by check to two people, usu. for the sum of the amount due to each person. unofficious payment. A payment made by a person who has an interest in seeing that it should be made. payment bond. See BOND (2). payment date. See DATE. payment in due course. (1816) A payment to the holder of a negotiable instrument at or after its maturity date, made by the payor in good faith and without notice of any defect in the holder's title. See HOLDER IN DUE COURSE.

payment intangible. See INTANGIBLE. payment into court. (1829) A party's money or property deposited with a court for distribution after a proceed­ ing according to the parties' settlement or the court's

1244

order. See INTERPLEADER. [Cases: Deposits in Court payoff. See KICKBACK.

payola (pay-oh-I;}). (1937) An indirect and secret payment

for a favor, esp. one relating to business; a bribe. pay-on-death account. See ACCOUNT. pay-on-death bank account. See pay-an-death account under ACCOUNT. payor. (l6c) One who pays; esp., a person responsible for paying a negotiable instrument. Also spelled payer. See DRAWEE; PAYEE. payor bank. See BANK. pay-or-play contract. See CONTRACT. payout period. The time required for an asset to produce enough revenue to pay back the initial investment; esp., in oil-and-gas law, the time required for a well to produce a sufficient amount of oil or gas to pay back the investment in the well. payout ratio. The ratio between a corporation's divi­ dends per share and its earnings per share. Cf. COM­ MON-STOCK RATIO.

payroll. 1. A list of employees to be paid and the amount due to each of them. 2. The total compensation payable to a company's employees for one pay period. payroll tax. See TAX. pays (payor pays), n. [Law French] The country; a jury. See PATRIA. pay-when-paid clause. See CLAUSE. PBGC. abbr. PENSION BENEFIT GUARANTY CORPORA­ TION.

PBS. abbr. 1. PUBLIC BUILDINGS SERVICE. 2. Public Broadcasting Service. P.C. abbr. l. See professional corporation under CORPO­ RATION. 2. POLITICAL CORRECTNESS. 3. PRIVY COUN­ CILLOR.

PCA. abbr. POSSE COMITATL'S ACT. PCR action. See POSTCONVICTION-RELIEF

PROCEED­

ING.

PCT. abbr. PATENT COOPERATION TREATY.

PCT application. See international application under

PATENT APPLICATION.

PCT filing. See international application under PATENT APPLICATION.

PCT filing date. Patents. The date of an international application under the Patent Cooperation Treaty. Also termed international filing date. See PATENT COOPERATION TREATY; PCT FILING.

P.D. abbr. 1. PUBLIC DEFENDER. 2. Police department.

PDA. See PREG~ANCY-DISCRIMINATION ACT.

peace, n. 1. A state of public tranquility; freedom from

civil disturbance or hostility . 2. The termination or absence of armed conflict between

1245

nations. See peace treaty under TREATY. - peaceable, adj. peaceful, adj. armed peace. A situation in which two or more nations, while at peace, are actually armed for possible or probable hostilities. peace, justice of the. See JUSTICE OF THE PEACE. peaceable possession. See POSSESSION. peace bond. See BOND (2). Peace Corps. An independent federal agency that promotes peace and friendship in the world by sending volunteers to other countries to work in education, agriculture, health, small-business development, urban development, the environment, and information technology. - The agency was established by the Peace Corps Act of 1961 and became independent in 1988. peacemaker's court. See COURT. peace officer. A civil officer (such as a sheriff or police officer) appointed to maintain public tranquility and order; esp., a person designated by public authority to keep the peace and arrest persons guilty or suspected of crime. _ This term may also include a judge who hears criminal cases or another public official (such as a mayor) who may be statutorily designated as a peace officer for limited purposes. Also termed officer of the peace; conservator of the peace. [Cases; Municipal Corporations (;::::;, 180(1).] Peace of God and the church. Hist. The cessation ofliti­ galion between terms and on Sundays and holidays. peacetime. A period in which a country has declared neither a war nor a national emergency, even if the country is involved in a conflict or quasi-conflict. peace treaty. See TREATY (1). peace warrant. See WARRANT (1). peak demand. The point (during some specified period) at which customer use results in the highest level of demand for a utility. peccavi (pe-kay-vI or pe-kah-vee), n. [Latin "I have sinned"] An acknowledgment or confession of guilt peculation (pek-y;l-lay-sh;m), n. (l7c) Embezzlement, esp. by a public officiaL Cf. DEPECULATION. [Cases: Officers and Public Employees 12L] peculate (pek-Y;l-layt), vb. peculative (pek-YJ-I;Hiv), adj. ­ peculator (pek-p-lay-tJr), n. peculatus (pek-ya-Iay-tas), n. [Latin] Roman law. The offense of stealing or embezzling public funds; pecu­ lation. Cf. FURTUM (1). peculiar, adj. Special; particular . peculiar, n, Hist. Eccles. law. A district, parish, chapel, or church that was not subject to a bishop's jurisdic­ tion. - Peculiars were created, usu. under papal author­ ity, to limit a bishop's power. There were several types, including royal peculiars (e.g., the Chapel Royal at St. James's Palace or S1. George's in Windsor), peculiars of the Archbishop of Canterbury, and peculiars of bishops and deans. The jurisdiction and privileges of

pecuniary loss

i

the peculiars were abolished by various statutes in the 19th century. peculiar benefit. See special benefit under BENEFlT. peculiar-risk doctrine. (1958) The principle that an employer will be liable for injury caused by an inde­ pendent contractor if the employer failed to take rea­ sonable precautions against a risk that is peculiar to the contractor's work and that the employer should have recognized, - Also termed peculiar-risk exception. [Cases: Labor and Employment (;::.)3156.] peculium (pi-kyoo-Iee-Jm), n. [Latin] Roman law. Property or money given by the head of a household to a son or slave, to be used at that person's discretion for living expenses or business transactions; property at the disposal of the slave or son-in-power. peculium adventitium. See ADVENTITIOUS PROPERTY, peculium profectitium. See PROFECTITIUM PECULIUM. pecune. [Origin unknown] Hist. CRIB, pecunia (pi-kyoo-nee-;}), n. [Latin] Hist. 1. Money. 2. Real or personal property. pecunia certa (pi-kyoo-nee-;} s;}r-tJ). [Latin] A definite sum of money. pecunia constituta (pi-kyoo-nee-J kon-sti-t[y]oo-tJ). [Latin "fixed sum of money"] Roman law. See pactum de constituto under PACTUM. pecunia non numerata (pi-kyoo-nee-J non nly]oo-m;}­ ray-tJ), [Latin "money not paid"] Roman law. A defense that even though defendant acknowledged receiv­ ing money, it had not in fact been paid. Cf. exceptio pecuniae non numeralae under EXCEPTIO. pecunia numerata (pi-kyoo-nee-a n[y]oo-mJ-ray-tJ). [Latin] Hist. Money numbered or counted out; money given to pay a debt. pecuniary (pi-kyoo-nee-er-ee), adj. (l6c) Of or relating to money; monetary . pecuniary ability. Income from any source or sources sufficient to meet or pay an obligation, or for some other purpose, such as providing suitable maintenance for a spouse. pecuniary benefit. See BENEFIT. pecuniary bequest. See BEQUEST. pecuniary cause. Eccles. law. A lawsuit maintainable in an ecclesiastical court to redress an injury relating to the church, such as a parishioner's failure to pay a tithe to a parson. pecuniary damages. See DAMAGES.

pecuniary devise. See DEVISE.

pecuniary gain. See GAIN (1).

pecuniary injury. See INJURY.

pecuniary interest. Seefinancial interest under INTEREST

(2).

pecuniary legacy. See LEGACY.

pecuniary loss. See LOSS.

pecunia trajectitia (pi-kyoo-nee-d traj-ek-tish-ee-d). [Latin "money conveyed overseas"] Roman law. Money loaned in connection with the transport of goods by ship, with the lender bearing the risk of loss. See NAUTlCUM FENDS.

pedage (ped-ij). Hist. Money paid as a toll to travel through another's land. - Also termed paage; pedagium. pedagium (pi-day-jee-dm). [Law Latin] See PEDAGE. pedal possession. See POSSESSION. pedaneus (pi-day-nee-ds), n. & adj. [Latin] Roman law. A judge who sat at the foot of the tribunal (Le., in the lowest seat) ready to try minor cases at the command of the magistrate; an assistant judge. pederasty (ped-dr-as-tee), n. (17c) Anal intercourse between a man and a boy.• Pederasty is illegal in all states. Cf. SODOMY. [Cases: SodomyC=> 1.]- pederast (ped-d-rast), n. pedigree. A history of family succession; ancestry or lineage. pedis abscissio (pee-dis or ped-is ab-sish-ee-oh). [Latin "cutting off a foot"] Hist. Punishment by cutting off the offender's foot. pedis positio (pee-dis or ped-is pd-zish-ee-oh). [Latin "the placement of the foot"] Hist. A putting or placing of the foot. • This term denoted possession of land by actual entry. pedis possessio. See POSSESSIO. pedis possessio doctrine (pee-dis or ped-is pd-zes[hJ­ ee-o). [Latin "possession-of-a-foot doctrine") The prin­ ciple that a prospector working on land in the public domain is entitled to freedom from fraudulent or forcible intrusions while actually working on the site. [Cases: Mines and Minerals C=>27(l).] pedophile. One who engages in pedophilia. pedophilia. (1906) 1. A sexual disorder consisting in the desire for sexual gratification by molesting children, esp. prepubescent children. 2. An adult's act of child molestation.• Pedophilia can but does not necessarily involve intercourse. The American Psychiatric Asso­ ciation applies both senses to perpetrators who are at least 16 years old and at least five years older than their victims. Cf. PEDERASTY. Peeping Tom. (18c) A person who spies on another (as through a window), usu. for sexual pleasure; VOYEUR. - Also termed peeper. [Cases: Disorderly Conduct C=> 123.] peer, n. 1. A person who is of equal status, rank, or char­ acter with another. "The commonalty, like the nobility, are divided into several degrees; and, as the lords, though different in rank, yet all of them are peers in respect of their nobility, so the com­ moners, though some are greatly superior to others, yet all are in law peers, in respect of their want of nobility ....' 1 William Blackstone, Commentaries on the Laws of England 391 (1765).

2. A member ofthe British nobility (such as a duchess, marquis, earl, viscount, or baroness). - peerage (peer­ ij), n. 'The Crown has power to create any number of peers and of any degree. In modern practice the power is exercised on the advice of the Prime Minister and the honour is most commonly a reward for political services. Peerages can be, and have been, conferred for party political reasons; 12 were created in 1712 to save the government, and 16 to help pass the Reform Bill in 1832. In 1832 and 1911 the Opposition of the House of Lords was overcome by the threat to create enough peers to secure a majority.... The main privilege of a peer is to sit and vote in the House of Lords." David M. Walker, The Oxford Companion to Law 942 (1980).

peer-reviewed journal. (1980) A publication whose practice is to forward submitted articles to disinterested experts who screen them for scholarly or scientific reli­ ability so that articles actually published have already withstood expert scrutiny and comment. peer-review organization. (1978) A governmental agency that monitors health-regulation compliance by private hospitals requesting public funds (such as Medicare payments). - Abbr. PRO. [Cases: Health peer-review privilege. See PRIVILEG E (3). peers of fees. Rist. Vassals or tenants of the same lord who judged disputes arising out of fees. peine forte et dure (pen for tay door or payn fort ay dyoor). [French "strong and hard punishment") Hist. The punishment of an alleged felon who refused to plead, consisting of pressing or crushing the person's body under heavy weights until the accused either pleaded or died. "In all other felonies, however, the punishment of peine forte et dure was, until lately, denounced as the conse­ quence of an obstinate silence. The greatest caution and deliberation were indeed to be exercised before it was resorted to; and the prisoner was not only to have 'trina admonitio,' but a respite of a few hours, and the sentence was to be distinctly read to him, that he might be fully aware of the penalty he was incurring." 1 Joseph Chitty, A Practical Treatise on the Criminal Law 425-26 (2d ed. 1826). "In old English law, a person charged with felony who, refusing to accept jury trial, was pressed to death (peine forte et dure), was not regarded as committing suicide, so that he did not forfeit his property." Glanville Williams, The Sanctity of Life and the Criminal Law 270 n.4 (1957).

pell. See CLERK OF THE PELLS. pellex (pel-eks). n. [Latin] Roman law. A concubine. penal (pee-ndl), adj. (15c) Of, relating to, or being a penalty or punishment, esp. for a crime. "The general rule is that penal statutes are to be construed strictly. By the word 'penal' in this connection is meant not only such statutes as in terms impose a fine, or corporal punishment, or forfeiture as a consequence of violating laws, but also all acts which impose by way of punish­ ment damages beyond compensation for the benefit of the injured party, or which impose any special burden, or take away or impair any privilege or right." William M. Lile et aI., Brief Making and the Use of Law Books 344 (3d ed. 1914). "The word penal connotes some form of punishment imposed on an individual by the authority of the state.

1247 Where the primary purpose of a statute is expressly enforceable by fine, imprisonment, or similar punish­ ment the statute is always construed as penal." 3 Norman J. Singer, Sutherland Statutes and Statutory Construction § 59.01, at 1 (4th ed. 1986).

penal action. See ACTION (4). penal bill. See penal bond under BOND (2). penal bond. See BOND (2). penal clause. See PENALTY CLAUSE. penal code. (1Sc) A compilation of criminal laws, usu. defining and categorizing the offenses and setting forth their respective punishments. - Also termed criminal code. See MODEL PENAL CODE. penal colony. A remote place of detention for convicts and political prisoners, usu. in an isolated part of a nation or in a nation's extraterritorial holdings .• His­ torical examples include the Soviet Union's gulags in Siberia and France's penal colony on Devil's Island off the coast of Guiana. penal custody. See CUSTODY (1). penal institution. See PRISON. penal law. 1. See penal statute under STATUTE. 2. See CRIMINAL LAW.

penal liability. See LIABILITY. penal redress. See REDRESS. penal sanction. See criminal sanction under SANCTION. penal servitude. Confinement in prison with hard labor. See HARD LABOR. Cf. IMPRISONMENT. penal statute. See STATUTE. penal sum. (l7c) Ihe monetary amount specified as a penalty in a penal bond. See penal bond under BOND (2).

penalty. (lSc) 1. Punishment imposed on a wrongdoer, usu. in the form of imprisonment or fine; esp., a sum of money exacted as punishment for either a wrong to the state or a civil wrong (as distinguished from com­ pensation for the injured party's loss) .• Ihough usu. for crimes, penalties are also sometimes imposed for civil wrongs. [Cases: Penalties civil penalty. (l7c) A fine assessed for a violation of a statute or regulation . statutory penalty. (ISc) A penalty imposed for a statu­ tory violation; esp., a penalty imposing automatic lia­ bility on a wrongdoer for violation of a statute's terms without reference to any actual damages suffered. [Cases: Penalties 2. An extra charge against a party who violates a con­ tractual provision. prepayment penalty. (1948) A charge assessed against a borrower who elects to payoff a loan before it is due. [Cases: Bills and Notes C:-c 429; Mortgages ::>422.J noncontributory pension plan. A pension plan funded solely by the employer's contributions. [Cases: Labor and Employment C:::>419.] nonqualified pension plan. A deferred-compensa­ tion plan in which an executive increases retirement benefits by annual additional contributions to the company's basic plan. [Cases: Labor and Employ­ ment (;::)430.] qualified pension plan. A pension plan that complies with federal law (ERISA) and thus allows the employee to receive tax benefits for contributions and tax-deferred investment growth. - Often shortened to qualified plan. [Cases: Labor and Employment C:::> 419,430.]

peonage top-hat pension plan. An unfunded pension plan that is maintained by an employer primarily for the purpose of providing deferred compensation for a select group of managers or highly paid employees. - Top-hat plans are generally not subject to the broad remedial provisions of ERISA because Congress rec­ ognized that certain individuals, by virtue of position or compensation level, can substantially influence the design or operation of their deferred -compensation plans. - Often shortened to top-hat plan. [Cases: Labor and Employment C:::>432.] pension trust. See TRUST. Pentagon Force Protection Agency. A unit in the U.S. Department of Defense responsible for operating the Pentagon police force and providing basic law enforce­ ment and security for the Pentagon and other military installations in the Washington, D.C. area. - The Agency was formed after the Pentagon was attacked on 11 September 2001. - Abbr. PFPA. penumbra (pi-n3m-br;)), n. (18c) A surrounding area or periphery of uncertain extent. • In constitutional law, the Supreme Court has ruled that the specific guaran­ tees in the Bill of Rights have penumbras containing implied rights, esp. the right ofprivacy. PI. penumbras, penumbrae (pi-n3m-bree). - penumbral (pi-n3m­ brdl), adj. "Problems of fringe meaning are sometimes spoken of as 'problems of the penumbra', the point being that, in the case of a great many words, there is no doubt about the hard core of their meanings, but different views may well be taken on the question whether the words are appli­ cable to things or situations outside that hard core: Rupert Cross, Statutory Interpretation 57 (1976).

penuria peritorum (p99.] perquisitor (pi3r-kwiz-i3-ti3r). [Latin "a seeker out"] Hist. A purchaser; esp., one who first acquires an estate by sale or gift. per quod (par kwod), adv. & ad). [Latin "whereby"] (17c) Requiring reference to additional facts; (of libel or slander) actionable only on allegation and proof of special damages. See actionable per quod under ACTIONABLE; libel per quod under LIBEL; slander per quod under SLANDER. [Cases: Libel and Slander Cr--= 1,33.] per quod consortium amisit (p;}r kwod bn-sor­ shee-209(3).J per quod servitium amisit (p;}r kwod s;}r-vish-ee-i3m i3-mI-zit). [Law LatinJ Hist. Whereby he lost the services (of his servant) .• This phrase was used in a trespass declaration to describe the loss suffered by a master whose servant had been injured by another. [Cases: Labor and Employment Cr"::) 127.]

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per rescriptum principis (p~r ri-skrip-t~m prin-si­ pis). [Latin] Roman law. By the prince's rescript; by an imperial written reply to a petition. Perringer release. See Pierringer release under RELEASE (2).

per saltum (p~r sal-t~m). [Latin] Hist. Bya leap; without an intermediate step. per se (pdr say), adv. & adj. [Latin] (16c) 1. Of, in, or by itself; standing alone, without reference to additional facts. See actionable per se under ACTIONABLE; libel per se under LIBEL; slander per se under SLANDER. 2. As a matter oflaw. persecutio (p~r-sd-kyoo-shee-oh), n. [Latin] Roman law. A lawsuit or civil claim under cognitio extraordinaria. See COGNITIO EXTRAORDINARIA. Pl. persecutiones (pdr-s~-kyoo-shee-oh-neez).

persecution, n. Violent, cruel, and oppressive treatment directed toward a person or group ofpersons because of their race, religion, sexual orientation, politics, or other beliefs. See hate crime under CRIME. persecute, vb. per se deadly weapon. See deadly weapon per se under WEAPON. persequi (p;,}r-s~-kwI), vb. [Latin] Roman law. To claim through a judicial proceeding. per se rule. Antitrust. The judicial principle that a trade practice violates the Sherman Act simply ifthe practice is a restraint of trade, regardless of whether it actually harms anyone. See SHERMAN ANTITRUST ACT. Cf. RULE OF REASON. per se violation. Antitrust. A trade practice (such as price-fixing) that is considered inherently anticom­ petitive and injurious to the public without any need to determine whether it has actually injured market competition. persistent price discrimination. See PRICE DISCRIMI­ NATION. person. (Be) 1. A human being. Also termed natural person. absent person. Louisiana law. A person who has no rep­ resentative in the state and whose whereabouts are not known and cannot be ascertained by diligent effort. La. Civ. Code art. 47. [Cases: Absentees C=>2.J adult disabled person. A child over the age of 18 for whom a parent continues to have a duty of support. associated person. See ASSOCIATED PERSON. disabled person. (1872) A person who has a mental or physical impairment. See DISABILITY. disappeared person. See DISAPPEARED PERSON. displaced person. A person who remains within an internationally recognized state border after being forced to flee a home or place of habitual residence because of armed conflict, internal strife, the gov­ ernment's systematic violations of human rights, or a natural or man-made disaster. - Also termed inter-

person

nally displaced person. Cf. EVACUEE; REFUGEE. [Cases: Aliens, Immigration, and Citizenship C=>S04., interested person. (1844) A person having a property right in or claim against a thing, such as a trust or decedent's estate. - The meaning may expand to include an entity, such as a business that is a creditor of a decedent. Abbr. IP. person in loco parentis (in loh-koh p;J-ren-tis). (1827) A person who acts in place of a parent, either tem­ porarily (as a schoolteacher does) or indefinitely (as a stepparent does); a person who has assumed the obligations of a parent without formally adopting the child. See IN LOCO PARENTIS. [Cases: Parent and Child (;:::> IS.} person in need ofsupervision. See child in need of supervision under CHILD. Abbr. PINS. person not deceased. A person who is either living or has not yet been born. person ofincidence. (1880) The person against whom a right is enforceable; a person who owes a legal duty. - The meaning may expand to include an entity, such as an insurance company. person ofinherence (in-heer-~nts). (1909) The person in whom a legal right is vested; the owner ofa right. • The meaning may expand to include an entity. person of interest. A person who is the subject of a police investigation but who has not been identified by investigators as being suspected of committing the crime itself. person of opposite sex sharing living quarters. See POSSLQ. person with ordinary skill in the art. See PERSON WITH ORDINARY SKILL IN THE ART. private person. 1. A person who does not hold public office or serve in the military. 2. Civil law. An entity such as a corporation or partnership that is governed by private law. protected person. 1. A person for whom a conserva­ tor has been appointed or other protective order has 17; been made. [Cases: Guardian and Ward Mental Health 104.] 2. Int'llaw. A person who is protected by a rule of international law; esp., one who is in the hands of an occupying force during a conflict. • Protected persons are entitled to a standard oftreatment (including a prohibition on coercion and corporal punishment) under the Geneva Conven­ tion Relative to the Protection of Civilian Persons in Time of War (1949). 3. English law. An inhabitant of a protectorate of the United Kingdom .• Though not a British subject, such a person is given diplomatic protection by the Crown. 2. The living body ofa human being 47.1.] plain-language law. (1978) Legislation requiring nontechnical, readily comprehensible language in consumer contracts such as residential leases or insur­ ance policies. - Many of these laws have genUinely simplified the needlessly obscure language in which consumer contracts have traditionally been couched. 126; Insur­ [Cases: Antitrust and Trade Regulation ance (...'=' 1773.] plain-language movement. (1978) 1. The loosely orga­ nized campaign to encourage legal writers and business writers to write clearly and concisely without legalese while preserving accuracy and precision. 2. The body of persons involved in this campaign. plain meaning. See MEANING. plain-meaning rule. (1937) 1. The rule that if a writing, or a provision in a writing, appears to be unambiguous on its face, its meaning must be determined from the writing itself without resort to any extrinsic evidence. • Though often applied, this rule is often condemned as Simplistic because the meaning ofwords varies with the verbal context and the surrounding circumstances, not to mention the linguistic ability ofthe users and readers (including judges). Cf. GOLDEN RULE; MISCHIEF RULE; EQUITY-OF-THE STATUTE RULE. [Cases: Contracts 143,152; Statutes 188.]





"On its positive side. the plain meaning rule states a tautol­ ogy: Words should be read as saying what they say, The rule tells us to respect meaning but it does so without disclosing what the specific meaning is. At best, it reaffirms the preeminence of the statute over materials extrinsic to it. In its negative aspect, on the other hand, the rule has sometimes been used to read ineptly expressed language out of its proper context. in violation of established prin' ciples of meaning and communication, To this extent it is an impediment to interpretation." Reed Dickerson, The Interpretation and Application of Statutes 229 (1975).

2. ORDINARY-MEANING RULE. plain-sight rule. See PLAIN-VIEW DOCTRINE. plaint. 1. Archaic. A complaint, esp. one filed in a replevin action. See COMPLAfNT (1). 2. Civil law. A complaint or petition, esp. one intended to set aside an allegedly invalid testament. plaintiff. (14c) The party who brings a civil suit in a court oflaw. - Abbr. pltf. Cf. DEFENDANT. involuntary plaintiff. A plaintiff who is joined in a lawsuit by court order when the party's joinder is imperative for the litigation and the party is subject to the court's jurisdiction but refuses to join the suit

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plaintiff in error

voluntarily. _ Under Federal Rule of Civil Procedure 19(a), a party is usu. joined as a defendant but may be joined as an involuntary plaintiff in "a proper case." [Cases: Federal Civil Procedure ~201; Parties 18.] use plaintiff. See USE PLAINTIFF. plaintiff in error. (17c) Archaic. 1. See APPELLANT. 2. See PETITIONER. plaintiff's-viewpoint rule. The principle that courts should measure the amount in controversy in a case by analyzing only the amount of damages claimed by the plaintiff. [Cases: Federal Courts ~339.J plain-touch doctrine. See PLAIN-FEEL DOCTRINE. plain-vanilla swap. See INTEREST-RATE SWAP. plain-view doctrine. (1963) Criminal procedure. The rule permitting a police officer's warrantless seizure and use as evidence of an item seen in plain view from a lawful position or during a legal search when the officer has probable cause to believe that the item is evidence of a crime. Also termed clear-view doctrine; plain-sight rule. Cf. OPEN-fIELDS DOCTRINE. [Cases: Controlled Substances 106, 115, 131; Searches and Seizures ~47·1

PLAM. See price-level-adjusted mortgage under MORT­ GAGE.

plan, n. 1.

BANKRUPTCY PLAN.

2.

EMPLOYEE BENEFIT

PLAN.

planned obsolescence. See OBSOLESCENCE. planned-unit development. A land area zoned for a sin­ gle-community subdivision with flexible restrictions on residential, commercial, and public uses. Abbr. PUD. Cf. RESIDENTIAL CLUSTER. [Cases: Zoning and Planning "A PUD is primarily an alternative to traditional zoning since it provides a mixing of uses. The location and identification of the permitted uses are provided on the PUD map or plat, which closely resembles a subdivision plat. Develop· ment approval is generally granted for the PUD at one time rather than on a lot by lot basis and in that way closely tracks the subdivision approval process." Julian Conrad Juergensmeyer & Thomas E. Roberts, Land Use Planning and Development Regulation Law § 7.15, at 288 (2003).

planning board. A local government body responsible for approving or rejecting proposed building projects. - In most jurisdictions, the planning board's deci­ sions are subject to the review of the city council. Also termed planning commission. [Cases: Zoning and Planning 351.J plan of arrangement. Bankruptcy. An insolvent debtor's written proposal for partially or completely settling outstanding debts. [Cases: Bankruptcy ~ 3661.101.] plan of rehabilitation. See BANKRUPTCY PLAN. plan of reorganization. See BANKRUPTCY PLAN. plan-of-the-convention doctrine. The principle that each U.S. state, by ratifying the U.S. Constitution, has consented to the possibility of being sued by each of the other states, and has no immunity from such a suit

under the 11th Amendment. [Cases: Federal Courts plant patent. See PATENT (3). Plant Patent Act. Patents. The 1930 federal law that extended patent protection for developing "any distinct and new" varieties of asexually reproducing plants. ­ Before passage of the Act, plant patents were rejected because the subject matter was considered naturally occurring and therefore unpatentable. 35 DSCA §§ 161-164. - Abbr. PPA. [Cases: Patents plant-patent claim. See PATENT CLAIM. Plant Variety Protection Act. Patents. The 1970 federal law that extended patent-like protection for developing new and distinct varieties ofseed-producing plants. _ A Certificate of Plant Variety Protection gives the holder exclusive rights to sell, reproduce, and develop further hybrids from the plant. 7 USCA §§ 2321-2582. Abbr. PVPA. [Cases: Patents~14.] plat. (15c) I. A small piece ofland; PLOT (1). 2. A map describing a piece of land and its features, such as boundaries, lots, roads, and easements. [Cases: Zoning and Planning ~245.1 platform. A statement of principles and policies adopted by a political party as the basis of the party's appeal for public support. [Cases: Elections ~ 121(1).] platform committee. See COMMITTEE. plat map. (1941) A document that gives the legal descrip­ tions ofpieces ofland by lot, street, and block number. - A plat map is usu. drawn after the property has been described by some other means, such as a government survey. Once a plat map is prepared, property descrip­ tions are defined by referring to the map. Plat maps are llSll. recorded by a government agency. plea, n. (13c) 1. An accused person's formal response of "guilty," "not guilty," or "no contest" to a criminal charge. Also termed criminal plea. [Cases: Criminal Law ~267-275.1 Alford plea. See ALFORD PLEA. blind plea. (1972) A guilty plea made without the promise of a concession from either the judge or the prosecutor. Cf. negotiated plea. conditional plea. A plea of guilty or nolo contendere entered with the court's approval and the govern­ ment's consent, the defendant reserving the right to appeal any adverse determinations on one or more pretrial motions. - Ifan appeal is successful, the plea is withdrawn and a new one entered. Fed. R. Crim. P. 1l(a)(2). [Cases: Criminal Law 275.3.J guilty plea. (1942) An accused person's formal admis­ sion in court of having committed the charged offense. - A guilty plea must be made voluntarily and only after the accused has been informed of and understands his or her rights. It ordinarily has the same effect as a guilty verdict and conviction after a of a plea trial on the merits. A guilty plea is usu. bargain. [Cases: Criminal Law

plea

1269

insanity plea. See INSANITY DEFENSE. negotiated plea. (1956) The plea agreed to by a criminal defendant and the prosecutor in a plea bargain. See PLEA BARGAIN. Cf. blind plea. [Cases: Criminal Law ~273.l(2).]

no-contest plea. See NO CONTEST. nolo plea. A plea by which the defendant does not contest or admit guilt. See Fed. R. Crim. P. l1(b); NOLO CONTENDERE. [Cases: Criminal LawC~275.] not-guilty plea. (1912) An accused person's formal denial in court of having committed the charged offense. _ The prosecution must then prove all elements of the charged offense beyond a reason­ able doubt if the defendant is to be convicted. [Cases: Criminal Law C-::J299.) provident plea. Military law. A plea that is entered knowingly, intelligently, and consciously, and is legally and factually consistent and accurate. [Cases: Military Justice e:-~986.) 2. At common law, the defendant's responsive pleading in a civil action. Cf. DECLARATION (7). [Cases: Pleading ~76-100, 101-11l.]3. A factual allegation offered in a case; a pleading. See DEM1JRRER. affirmative plea. See pure plea. anomalous plea. (1851) An equitable plea in which a party states new facts and negates some of the oppo­ nent's stated facts. _ Partly confession and avoidance and partly traverse, the plea is appropriate when the plaintiff, in the bill, has anticipated the plea, and the defendant then traverses the anticipatory matters. ­ Also termed plea not pure. Cf. pure plea. common plea. (17c) 1. A common-law plea in a civil action as opposed to a criminal prosecution. - Also termed common cause; cornman suit. 2. Hist. A plea made by a commoner. "By 'common pleas' Magna Carta meant no more than ordinary pleas between commoners." Alan Harding, A Social History of English Law 51 (1966).

dilatory plea (dil-J-tor-ee). (16c) A plea that does not challenge the merits of a case but that seeks to delay or defeat the action on procedural grounds. [Cases: Pleading ~ 101-111.49.) "Dilatory pleas are those which do not answer the general right of the plaintiff, either by denial or in confession and avoidance, but assert matter tending to defeat the particular action by resisting the plaintiff's present right of recovery. They may be divided into two main classes: (1) Pleas to the jurisdiction and venue. (2) Pleas in abate­ ment. A minor class, sometimes recognized, is pleas in suspension of the action." Benjamin J. Shipman, Handbook of Common-Law Pleading § 220, at 382 (Henry Winthrop Ballantine ed., 3d ed. 1923).

double plea. (16c) A plea consisting in two or more distinct grounds of complaint or defense for the same issue. Cf. alternative pleading under PLEADING (2); DUPLICITY (2).

general plea. See general denial under DE~IAL.

issuable plea. (17c) A plea on the merits presenting a cognizable complaint to the court. Cf. issuable defense under DEFENSE (1). jurisdictional plea. (1900) A plea asserting that the court lacks jurisdiction either over the defendant or Also termed over the subject matter of the case. plea to the jurisdiction. [Cases: Pleading ~J 104.] negative plea. (16c) A plea that traverses some material fact or facts stated in the bill. Also termed plea to the action. nonissuable plea. (1841) A plea on which a court ruling will not decide the case on the merits, such as a plea in abatement. peremptory plea. (18c) A plea that responds to the merits of the plaintiffs claim. plea in abatement. (17c) A plea that objects to the place, time, or method of asserting the plaintiff's claim but does not dispute the claim's merits. - A defendant who successfully asserts a plea in abatement leaves the claim open for continuation in the current action or reassertion in a later action if the defect is cured. Also termed abater. [Cases: Federal Civil Procedure ~740; Pleading ~ 106.) plea in bar. See PLEA IN BAR. plea in confession and avoidance. See CONFESSION AND AVOIDANCE.

plea in discharge. (18c) A plea that the defendant has preViously satisfied and discharged the plaintiff's claim. plea in equity. (17c) A special defense relying on one or more reasons why the suit should be dismissed, delayed, or barred. - The various kinds are (1) pleas to the jurisdiction, (2) pleas to the person, (3) pleas to the form of the bill, and (4) pleas in bar of the bill. Pleas in equity generally fall into two classes: pure pleas and anomalous pleas. plea in estoppel. (1831) Common-law pleading. A plea that neither confesses nor avoids but rather pleads a previous inconsistent act, allegation, or denial on the part of the adverse party to preclude that party from maintaining an action or defense. plea in reconvention. Civil law. A plea that sets up a new matter, not as a defense, but as a cross-complaint, setoff, or counterclaim. [Cases: Pleading ~ 143.] plea in suspension. (1875) A plea that shows some ground for not proceeding in the suit at the present time and prays that the proceedings be stayed until that ground is removed, such as a party's being a minor or the plaintiffs being an alien enemy. [Cases: Pleading ~ 105.) plea not pure. See anomalous plea. plea ofconfession and avoidance. See CONFESSION AND AVOIDANCE.

plea ofprivilege. (17c) A plea that raises an objection to the venue of an action. See CHANGE OF VENUE. [Cases: Venue 69.]

plea bargain

plea ofrelease. (ISc) A plea that admits the claim but sets forth a written discharge executed by a party authorized to release the claim. See RELEASE (2). plea puis darrein continuance (pwis dar-ayn bn-tin­ yoo-;mts). [Law French "plea since the last continu­ ance"] (ISc) A plea that alleges new defensive matter that has arisen during a continuance of the case and that did not exist at the time of the defendant's last pleading. [Cases: Pleading plea to further maintenance to the action. Hist. A defensive plea asserting that events occurring after the commencement of the action necessitate its dis­ missal. • The plea is obsolete because of the pleading requirements in federal and state rules of civil pro­ cedure. plea to the action. See negative plea. plea to the declaration. (lS20) A plea in abatement that objects to the declaration and applies immediately to it. - Also termed plea to the count. plea to the jurisdiction. See jurisdictional plea. plea to the person of the defendant. (1872) A plea in abatement alleging that the defendant has a legal dis­ ability to be sued. plea to the person of the plaintiff. (1821) A plea in abatement alleging that the plaintiff has a legal dis­ ability to sue. plea to the writ. (17c) A plea in abatement that objects to the writ (summons) and applies (1) to the form of the writ for a matter either apparent on the writ's face or outside the writ, or (2) to the way in which the writ was executed or acted on. pure plea. (18c) An equitable plea that affirmatively alleges new matters that are outside the bill. • If proved, the effect is to end the controversy by dis­ missing, delaying, or barring the suit. A pure plea must track the allegations of the bill, not evade it or mistake its purpose. Originally, this was the only plea known in equity. Also termed affirmative plea. Cf. anomalous plea. rolled-up plea. (1929) Defamation. A defendant's plea claiming that the statements complained of are factual and that, to the extent that they consist of comment, they are fair comment on a matter of public interest. See FAIR COMMENT. [Cases: Libel and Slander 4S(1), 93, 94.] special plea. (l6c) A plea alleging one or more new facts rather than merely disputing the legal grounds of the action or charge. _ All pleas other than general issues are special pleas. See general issue under ISSUE (1). plea bargain, n. (1963) A negotiated agreement between a prosecutor and a criminal defendant whereby the defendant pleads guilty to a lesser offense or to one of multiple charges in exchange for some concession by the prosecutor, usu. a more lenient sentence or a dismissal of the other charges. Also termed plea agreement; negotiated plea; sentence bargain. [Cases: Criminal Law

1270

C;;>273.1(2).]

plea-bargain, vb. - plea-bargaining,

n. charge bargain. (IS90) A plea bargain in which a pros­ ecutor agrees to drop some of the counts or reduce the charge to a less serious offense in exchange for a plea ofeither guilty or no contest from the defendant. [Cases: Criminal Law (:::::-273.1(2), 275.4(2).] sentence bargain. (1973) A plea bargain in which a prosecutor agrees to recommend a lighter sentence in exchange for a plea ofeither guilty or no contest from the defendant. [Cases: Criminal Law (:::::-273.1(2), 275.4(2).] plead, vb. (l3c) 1. To make a specific plea, esp. in response to a criminal charge . [Cases: Criminal Law (:::::-267-301.] 2. To assert or allege in a pleading . [Cases: Federal Civil Procedure C-::621, 636; Pleading (;::J 1, IS.] 3. To file or deliver a pleading 2680, 2689.] P.O. abbr. 1. Post office. 2. PURCHASE ORDER. poaching, n. The illegal taking or killing of fish or on another's land. [Cases: Fish 13(1); Game 7.] - poach, vb. pocket immunity. See IMMUNITY (3). pocket judgment. Hist. See STATUTE MERCHANT (1). pocket money. See HAT MONEY. pocket part. (1931) A supplemental pamphlet inserted usu. into the back inside cover of a lawbook, esp. a treatise or code, to update the material in the main text until the publisher issues a new edition of the entire work.• Legal publishers frequently leave a little extra room inside their hardcover books so that pocket parts may later be added. Also termed cumulative supple­ ment. pocket veto. See VETO. P.O.D. abbr. Pay on delivery.

POD account. See pay-an-death account under

ACCOUNT. poena (pee-nd). [Latin] (1859) Punishment; penalty. poena arbitraria (pee-nd ahr-bi-trair-ee-J). [Law Latin] Hist. Arbitrary punishment; punishment left to a judge's discretion. poena corporalis (pee-nd kor-p;:>-ray-lis). [Latin] Hist. Corporal punishment. poena ordinaria (pee-nJ or-di-nair-ee-d). [Law Latin] Hist. Ordinary punishment; punishment fixed by law. poena pecuniary. A fine. poenae secundarum nuptiarum (pee-nee sek-dn­ dair-dm ndp-shee-air-dm). [Latin "penalties of second marriages"] Roman law. Disabilities that, for the pro­ tection of children of a first marriage, are imposed on a parent who remarries. "If either parent re-married, the interests of the children of the first marriage were protected (in the later Roman Empire) by a number of legal rules the effect of which was to confer certain benefits on the children and to impose certain disabilities the so·called poenae secundarum nuptiarum on the parens binubus. The most important of these rules was that which declared that all the property which the parens binubus had acquired gratuitously from his or her deceased spouse, whether by way of gift, dos, donatio propter nuptias, or testamentary disposition ­ the so·called lucra nuptialia should become ipso jure the property of the children of the first marriage at the moment of the conclusion of the second marriage, and that onlya usufruct should be reserved for the parens binubus." Rudolph Sohm, The Institutes; A Textbook of the History and System of Roman Private Law 477 Uames Crawford Ledlie trans., 3d ed. 1907).

poena lis (pi-nay-lis), adj. [Latin] Roman law. Imposing a penalty; penal. poena pilloralis (pee-nd pil-d-ray-lis). (Latin] Hist. Pun­ ishment of the pillory.

1275

poenitentia (pee-nd-ten-shee-d or pen-d), n. [Latin "repentance"] Roman law. Reconsideration; changing one's mind. poinding (pin-ding), n. Scots law. A judgment credi­ tor's seizing of a debtor's corporeal movable property to satisfy the debt. - poind, vb. point, n. (l3c) 1. A pertinent and distinct legal propo­ sition, issue, or argument <point of error>. 2. Parlia­ mentary law. Any of several kinds of requests made in a deliberative body. See REQUEST. point ofclarification. A question about procedure or substance. point of information. An inquiry asking a question about a motion's merits or effect. - A point of infor­ mation can be made only to seek information, not to volunteer information. It may request an objec­ tive fact or an expert opinion, but may not request anyone - including the chair or the mover - to spec­ ulate about how he or she expects or intends that the present or future leadership will interpret or apply a motion. See INQUIRY (2). Also termed question of information. point oforder. A request suggesting that the meeting or a member is not following the applicable rules and asking the chair enforce the rules. _ Some orga­ nizations use the term "point of order" as a generic term that also includes a parliamentary inquiry and a question of privilege. - Also termed question of order. See parliamentary inquiry under INQUIRY; question ofprivilege under QUESTION (3). point ofprivilege. A motion that raises a question of privilege. See question ofprivilege under QUESTION (3); RAISE A QUESTIO:-< OF PRIVILEGE.

procedural point. A request that raises a personal privi­ lege relating to a member's ability to participate effec­ tively in the meeting, such as the member's ability to see or hear the proceedings. See personal privilege under PRIVILEGE (5). 3. One percent of the face value of a loan (esp. a mortgage loan), paid up front to the lender as a service charge or placement fee . - Also termed mortgage point. See MORTGAGE DISCOUNT. 4. A unit used for quoting stock, bond, or commodity prices . 5. A payment to secure a loan, stated as a percentage of the loan's face amount. point-and-dickagreement. (2000) An electronic version of a shrink-wrap license in which a computer user agrees to the terms of an electronically displayed agree­ ment by pointing the cursor to a particular location on the screen and then clicking. _ Point-and-click agree­ ments usu. require express acceptance only once but may include a clause providing for a user's ongoing­ acceptance of any changes to the agreement's terms, whether or not the user is notified of the changes. See shrink-wrap license under LICENSE. Also termed e-contract; click-wrap license; click-wrap agreement;

Polaroid test

user agreement; website-user agreement; web-wrap agreement. Cf. E-CONTRACT. [Cases: Copyrights and Intellectual Property (;:::;: 107.J point of attachment. Copyright. A connection with a copyright-convention member nation sufficient to make a work eligible for protection under that convention. _ For example, a work is eligible for Berne Convention protection if the author is a citizen of a Berne member nation or if the work originated in a Berne member nation. Also termed cormectingfactor. [Cases: Copy­ rights and Intellectual Property 34.J point of error. (18c) An alleged mistake by a lower court asserted as a ground for appeal. See ERROR (2); WRIT OF ERROR. [Cases: Appeal and Error (;:::;:758.3; Criminal Law (;:::> 1130(2).J point of fact. A discrete factual proposition at issue in a case. point oflaw. (16c) A discrete legal proposition at issue in a case. reserved point oflaw. (1821) An important or difficult point oflaw that arises during trial but that the judge sets aside for future argument or decision so that tes­ timony can continue. - Also termed point reserved. point reserved. See reserved point o.flaw under POI~T OF LAW.

points-and-authorities brief. See brief on the merits under BRIEF (1). point source. Environmental law. The discernible and identifiable source from which pollutants are dis­ charged. [Cases: Environmental Law (;:::;: 175.J point system. (1955) Criminal law. A system that assigns incremental units to traffic violations, the accumula­ tion of a certain number within a year resulting in the automatic suspension of a person's driving privileges. [Cases: Automobiles 144.1(3).] poisonous-tree doctrine. See FRUIT-OF-THE-POISON­ OUS-TREE DOCTRINE.

poison pill. A corporation's defense against an unwanted takeover bid whereby shareholders are granted the right to acquire equity or debt securities at a favor­ able price to increase the bidder's acquisition costs. Often shortened to pill. See TAKEOVER DEFENSE; SHARK REPELLANT. Cf. PORCUPINE PROVISION. [Cases: Corpo­ rations (;:::;:310(1).] "Another recent tactic is the 'poison pill' which is a condi­ tional stock right that is triggered by a hostile takeover and makes the takeover prohibitively expensive. The poison pill is a variation of the scorched earth defense ...." Thomas Lee Hazen, The Law of Securities Regulation § 11.20, at 575 (2d ed. 1990).

Polaroid test. Trademarks. A judicial test for trademark infringement, analyzing eight factors: (1) strength ofthe mark, (2) similarity between the marks, (3) proximity of the products' markets, (4) effects on market expan­ sion (ability to "bridge the gap"), (5) actual confusion, (6) the defendant's good or bad faith, (7) quality of the products, and (8) sophistication of the buyer. Polaroid

police

Corp. v. Polarad Electronics Corp., 287 F.2d 492, 495 (2d Cir. 1961). [Cases: Trademarks C;;;, 1081.] police, n. 1. The governmental department charged with the preservation of public order, the promotion of public safety, and the prevention and detection of crime. [Cases: Municipal Corporations 180.] 2. The officers or members of this department. [Cases: Municipal Corporations C~ 184.] - police, vb. police action. See ARMED CONFLICT. police-assisted snicide. See suicide-by-cop under SUICIDE.

police blotter. See ARREST RECORD. police chief. The head of a police department. police court. See magistrate's court (1) under COURT. police jury. Louisiana law. The governing body of a parish. [Cases: Counties ~38.J police justice. See police magistrate under MAGIS­ TRATE.

police magistrate. See MAGISTRATE. police officer. A peace officer responsible for preserv­ ing public order, promoting public safety, and prevent­ ing and detecting crime. Cf. PEACE OFFICER. [Cases: Municipal Corporations C::> 179.] police power. (1821) 1. The inherent and plenary power of a sovereign to make all laws necessary and proper to preserve the public security, order, health, morality, and justice. - It is a fundamental power essential to government, and it cannot be surrendered by the leg­ islature or irrevocably transferred away from govern­ ment. [Cases: States C::;'21(2).] "[lIt is possible to evolve at least two main attributes or characteristics which differentiate the police power: it aims directly to secure and promote the public welfare, and it does so by restraint or compulsion." Ernst Freund, The Police Power § 3, at 3 (1904).

2. A state's Tenth Amendment right, subject to due­ process and other limitations, to establish and enforce laws protecting the public's health, safety, and general welfare, or to delegate this right to local governments. [Cases: States ~ 18.13.] 3. Loosely, the power of the government to intervene in the use of privately owned property, as by subjecting it to eminent domain. See EMINENT DOMAIN. [Cases: Eminent Domain ~ 1-5.] police science. See CRIMINAL JUSTICE (2). police state. See STATE. policy. (14c) 1. The general principles by which a govern­ ment is guided in its management ofpublic affairs. See PUBLIC POLICY. 2, A document containing a contract of insurance; INSURANCE POLICY. [Cases: Insurance 1712,1713.]3. A type oflottery in which bettors select numbers to bet on and place the bet with a "policy writer. [Cases: Lotteries C:)3, 20.] policy court. See COURT. policyholder. One who owns an insurance policy, regard­ less ofwhether that person is the insured party. - Also termed policyowner. [Cases: Insurance ~ 1717.]

1276

policy limits. See LIABILITY LIMIT. policy loan. See LOAN. policy ofinsurance. See INSURANCE POLICY. policy of the law. See PUBLIC POLICY (1). policyowner. See POLICYHOLDER. policy proof of interest. Insurance. Evidence - shown by possession of a policy - that a person making a claim has an insurable interest in the loss. - Abbr. PPI. [Cases: Insurance ~1779-1795.1 policy reserve. See RESERVE. policy stacking, See STACKING. policy value. Insurance.lhe amount ofcash available to a policyholder on the surrender or cancellation of the insurance policy. [Cases: Insurance ~2037.] policy year. Insurance. The year beginning on the date that a policy becomes effective. Cf. ANNIVERSARY DATE.

political, adj. Pertaining to politics; of or relating to the conduct of government. political-action committee. (1839) An organization formed by a special-interest group to raise and contrib­ ute money to the campaigns of political candidates who the group believes will promote its interests. - Abbr. PAC. [Cases: Elections~317.l.J political assessment. See ASSESSMENT. political asylum. See ASYLUM (2). political corporation. See public corporation (2) under CORPORATION.

political correctness, n. (1979) 1. The inclination to avoid language and practices that might offend anyone's political sensibilities, esp. in racial or sexual matters. 2. An instance in which a person conforms to this inclina­ tion. - Abbr. P.e. politically correct, adj. political corruption. See official misconduct under MIS­ CONDUCT.

political crime. See POLITICAL OFFENSE. political economy. See ECONOMY. political gerrymandering. See GERRYMANDERING (1). political law. See POLITICAL SCIENCE. political liberty. 1. See LIBERTY. 2. See political right under RIGHT. Political-Military Affairs Bureau. See BUREAU OF POLITICAL-MILITARY AFFAIRS.

political offense. (I8c) A crime directed against the security or government of a nation, such as treason, sedition, or espionage. - Under principles of interna­ tionallaw, the perpetrator of a political offense cannot be extradited. Also termed political crime. [Cases: Extradition and Detainers ~5.] political party. An organization of voters formed to influence the government's conduct and policies by nominating and electing candidates to public office. ­ The United States has traditionally maintained a two­

1277

party system, which today comprises the Democratic and Republican parties. - Often shortened to party. political patronage. See PATRONAGE (3). political power. The power vested in a person or body of persons exercising any function ofthe state; the capacity to influence the activities of the body politic. - Also termed civil power. sovereign political power. Power that is absolute and uncontrolled within its own sphere.• Within its designated limits, its exercise and effective opera­ tion do not depend on, and are not subject to, the power of any other person and cannot be prevented or annulled by any other power recognized within the constitutional system. - Often shortened to sov­ ereign power. - Also termed supreme power. [Cases: States (;::;:, 1.] subordinate political power. Power that, within its own sphere of operation, is subject in some degree to external control because there exists some superior constitutional power that can prevent, restrict, direct, or annul its operation. - Often shortened to subor­

dinate power. political question. (1808) A question that a court will not consider because it involves the exercise of discre­ tionary power by the executive or legislative branch of government. - Also termed nonjusticiable question. cr JUDICIAL QUESTION. [Cases: Constitutional Law (;::;:'2580-2593.] political-question doctrine. The judicial principle that a court should refuse to decide an issue involving the exercise of discretionary power by the executive or leg­ islative branch of government. [Cases: Constitutional Law C=2580-2593.J political right. See RIGHT. political science. (I7c) The branch oflearning concerned with the study ofthe principles and conduct of govern­ ment. - Also termed political law. political society. See STATE (1). political subdivision. (1827) A division of a state that exists primarily to discharge some function of local government. [Cases: Municipal Corporations (;::;:,54.] political trial. See TRIAL. political-vote privilege. See PRIVILEGE (3). politics. 1. The science of the organization and admin­ istration of the state. 2. The activity or profeSSion of engaging in political affairs. polity (pol-d-tee). (16c) 1. The total governmental organi­ zation as based on its goals and policies. 2. A politically organized body or community. polity approach. (1975) A method of resolving church­ property disputes by which a court examines the struc­ ture of the church to determine whether the church is independent or hierarchical, and then resolves the dispute in accordance with the decision of the proper church-governing body. [Cases: ReligiOUS Societies (;::;:, 11,14.]

polygamy

poll, n. (I8c) 1. A sampling of opinions on a given topic, conducted randomly or obtained from a specified group. 2. lhe act or process of voting at an election. 3. The result of the counting of votes. 4. (usu. pl.) The place where votes are cast. poll, vb. (l7c) 1. To ask how each member of (a group) indiVidually voted . [Cases: Criminal Law (;::;:,874; Federal Civil Procedure (;::;:,2191; Trial (;::;:,325.] 2. To question (people) so as to elicit votes, opinions, or preferences . 3. To receive (a given number of votes) in an election . pollicitation. Contracts. (I5c) The offer of a promise. "By a promise. we mean an accepted offer as opposed to an offer of a promise. or, as Austin called it, a pollicitation." William R. Anson, Principles of the Law of Contract 6 (Arthur l. Corbin ed., 3d Am. ed. 1919).

poll tax. See TAX. pollute, vb. To corrupt or defile; esp., to contaminate the soil, air, or water with noxious substances. [Cases: Environmental Law (;::;:, 161-389.] pollution, n. polluter, n. pollution exclusion. See EXCLUSION (3). po. 10. suo. abbr. PONIT LOCO SUO. polyandry (pol-ee-an-dree). (17c) The condition or practice of having more than one husband at the same time. Cf. POLYGYNY. [Cases: Bigamy(;=::> 1.] polyarchy (pol-ee-ahr-kee). Government by many persons. - Also termed polygarchy (pol-a-gahr-kee). Cf. MONARCHY. - polyarchal, adj. polygamist (pa-lig-d-mdst). 1. A person who has several spouses Simultaneously. 2. An advocate of polygamy. polygamy (pa-lig-a-mee), n. (16c) 1. The state or practice of haVing more than one spouse simultaneously. ­ Also termed simultaneous polygamy; plural marriage. [Cases: Bigamy 1; Marriage (;::;:, ILl 2. Hist. The fact or practice ofhaving more than one spouse during one's lifetime, though never simultaneously.• Until the third century, polygamy included remarriage after a spouse's death because a valid marriage bond was considered indissoluble. - Also termed successive polygamy; serial polygamy; sequential marriage. Cf. BIGAMY; MONOGAMY. - polygamous, adj. - polyga­ mist, n. "Polygamy (many marriages) is employed at times as a synonym of bigamy and at other times to indicate the simultaneous marriage of two or more spouses." Rollin M. Perkins & Ronald N. Boyce, Criminal Law 458 (3d ed. 1982). "[Tjhis one-marriage-at-a-time rule behind which the legal systems of the West have seemingly thrown so much weight is not what a sociologist would call a general prohibition of polygamy. Polygamy can be simultaneous Of more than one spouse is simultaneously present} or successive (if spouses are married one after the other). Only simultane· ous polygamy is prohibited by the laws with which we are here concerned. These statutes reserve the use of the word polygamy for that kind which is not very common among

polygarchy

1278

us. They do not affect the serial form. which is so very popular in the United States and Western Europe that ... the law is fast changing to adapt to it." Mary Ann Glendon, The Transformation of Family Law 52 (1989).

polygarchy. See POLYARCHY. polygraph, n. (1923) A device used to evaluate truth­ fulness by measuring and recording involuntary physiological changes in the human body during interrogation.• Polygraph results are inadmissible as evidence in most states but are commonly used by the police as an investigative too!. - Also termed lie detector.lCases: Criminal LawG=">388.5; Evidence G="> 150.] - polygraphic, adj. - polygraphy, n. polygyny (pd-lij-d-nee). (I8c) The condition or practice of having more than one wife at the same time. Cf.

"The specialists who interpreted the Twelve Tables and the unwritten part of the law were called pontiffs. At first they dealt with both sacred law (how to appease the gods) and secular law (how to secure peace among men). Some of them later confined themselves to secular law. As an example of how they interpreted the law, the Twelve Tables said that if a father sells his son three times (into bondage, to payoff debts) the son is to be free from his father's power. The Twelve Tables said nothing about a daughter. The pontiffs held that if a father sold his daughter once, she was free." Tony Honore, About Law 13 (1995).

2. The leader of the Catholic Church; the Pope. See PONTIFEX.

POLYANDRY.

pondere, numero, et mensura (pon-ddr-ee, n[yJ oo-mdr-oh, et men-s[yJnur-d). [Latin] Hist. By weight, number, and measure .• The phrase appeared in refer­ ence to methods for determining fungibles. 4Pondere. numero, et men sura .. . These are the tests proposed by our law, by which to ascertain whether a certain subject falls within that class of subjects known as fungibles, which class includes all those things which perish in the using, and which can be estimated gener· ally by weight, number and measure; such, for example, are corn, wine, money, &c." John Trayner, Trayner's Latin Maxims 462 (4th ed. 1894).

pone (poh-nee). [Latin "put"j Hist. An original writ used to remove an action from an inferior court (such as a manorial court or county court) to a superior court. • lhe writ was so called from the initial words of its mandate, which required the recipient to "put" the matter before the court issuing the writ. ponendis in assisis (pd-nen-dis in a-sl-zis). [Latin "to be placed in assizes"] Hist. A writ directing the sheriff to empanel a jury for an assize or real action. ponendo sigillum ad exceptionem. See DE PONENDO SIGILLUM AD EXCEPTIONEM.

ponendum in ballium (pd-nen-d"m in bal-ee-"m). [Latin "to be placed in bail"] Hist. A writ commanding that a prisoner be bailed in a bailable matter. pone per vadium (poh-nee par vay-dee-"m). [Latin] Hist. A writ commanding the sheriff to summon a defendant who has failed to appear in response to an initial writ by attaching some of the defendant's property and requir­ ing the defendant to find sureties .• It was so called from the words of the writ, pone per vadium et salvos plegios ("put by gage and safe pledges"). ponit loco suo (poh-nit loh-ko s[y]oo-oh). [LatinJ Puts in his place .• This phrase was formerly used in a power of attorney. Abbr. po. 10. suo. ponit se super patriam (poh-nit see s[yjoo-pdr pay­ tree-am or pa-tree-"m). [Latin "he puts himself upon the country"] Hist. A defendant's plea of not guilty in a criminal action. - Abbr. po. se. See GOING TO THE COUNTRY; PATRIA

had control of religion in Rome. Also termed pontiff. PI. pontifices (pon-tif-i-seez). pontiff. 1. Roman law, A member of the council of priests in ancient Rome. - Also termed pontifex.

(3).

pontifex (pon-ti-feks), n. Roman law. A member of the college ofpontiffs, one of several groups of priests, who

pony homestead. See constitutional homestead under HOMESTEAD.

Ponzi scheme (pon-zee). (1920) A fraudulent investment scheme in which money contributed by later investors generates artificially high dividends or returns for the original investors, whose example attracts even larger investments.• Money from the new investors is used directly to repay or pay interest to earlier investors, usu, without any operation or revenue-producing activity other than the continual raising of new funds. This scheme takes its name from Charles Ponzi, who in the late 19208 was convicted for fraudulent schemes he conducted in Boston. See GIFTING CLUB. Cf. PYRAMID SCHEME. [Cases: Antitrust and Trade Regulation 231.] pool, n. (1868) 1. An association ofindividuals or entities who share resources and funds to promote their joint undertaking; esp., an association ofpersons engaged in buying or selling commodities .• If such an association is formed to eliminate competition throughout a single industry, it is a restraint of trade that violates federal antitrust laws. [Cases: Antitrust and Trade Regulation 2. A gambling scheme in which numerous persons contribute stakes for betting on a particular event (such as a sporting event). [Cases: Gaming 5,73.] pool clerk. See CLERK (5), pooled-income fund. A trust created and maintained by a public charity rather than a private person, whereby (1) the donor creates an irrevocable, vested remainder in the charitable organization that maintains the trust, (2) the property transferred by each donor is com­ mingled with property transferred by other donors, (3) the fund cannot invest in tax-exempt securities, (4) no donor or income beneficiary can be a trustee, (5) the donor retains (either personally or for one or more named income beneficiaries) a life income interest, and (6) each income beneficiary is entitled to and receives a proportional share of the annual income based on the rate of return earned by the fund. IRC (26 USCA) § 642(c)(5). Charities (>::c6; Trusts (~280.1 pooled trust. See TRUST,

1279

pooling, n. Oil & gas. Ihe bringing together of small tracts ofland or fractional mineral interests over a pro­ ducing reservoir for the purpose of drilling an oil or gas well. • Pooling is usu. associated with collecting a large enough tract to meet well-spacing regulations. - Also termed communitization. Cf. UNITIZATION. [Cases; Mines and Minerals (>79.1(5), 92.78.] compulsory pooling. Pooling done by order of a regula­ tory agency. Also termed forced pooling. forced pooling. See compulsory pooling. voluntary pooling. Pooling arranged by agreement of the owners of mineral interests. pooling agreement. A contractual arrangement by which corporate shareholders agree that their shares will be voted as a unit. Also termed voting agree­ ment; shareholder voting agreement; shareholder-con­ trol agreement. [Cases: Corporations (;:::::' 198.1 (1).] pooling clause. Oil & gas. A provision found in most oil­ and-gas leases granting the lessee the right to combine part or all of the leased acreage with other proper­ ties for development or operation. (Cases: Mines and Minerals (;:::::'78.1(7).] pooling of interests. A method of accounting used in mergers, whereby the acquired company's assets are recorded on the acquiring company's books at their cost when originally acquired .• No goodwill account is created under the pooling method. Poor Law. Hist. The British law that provided relief to paupers, originally on the parish level and supported by property taxes .• lhe Poor Law was supplanted in 1948 by the National Assistance Act. poor man's court. See RUSTICUM FORUM. poor relief. See WELFARE (2). pop, n. Telecommunications. A calculation of the poten­ tial customer base for a mobile-phone-service provider, calculated by the number of people living in the area multiplied by the company's percentage ownership of the area's cellular service. Poppean law. See LEX PAPIA POPPEA. popular action. See QUI TAM ACTION. popular election. See ELECTION (3). popularis (pop-y 14(2); Shipping (;:::::'15.]

portfolio

portfolio. (1848) 1. The various securities or other investments held by an investor at any given time .• An investor will often hold several different types of investments in a portfolio for the purpose of diversi­ fying risk. market portfolio. A value-weighted portfolio of every asset in a particular market. 2. The role within the government of a high official <minister without portfolio>. portfolio income. See INCOME. portfolio-pumping. Securities. The practice of pur­ chasing additional shares of a stock near the end of a fiscal period in an attempt to improve an investment fund's apparent performance. Also termed window dressing. portio legitima (por-shee-oh la-jit-i-ma). [Latin "lawful portion"] Roman & civil law. The portion of an estate required by law to be left to close relatives; specif., the portion of an inheritance that a given heir is entitled to, and of which the heir cannot be deprived by the testator without special cause. Cf. LEGITlME. PI. por­ tiones legitimae. portion. A share or allotted part (as of an estate). portioner (por-sha-nar), n. I. Scots law. One who owns a portion of a decedent's estate. heir portioner. 1. One oftwo or more female heirs who, in the absence ofmale heirs, inherit equal shares of an estate. 2. One of two or more usu. female heirs in the same degree who take equal shares per capita. 2. The proprietor of a small fee. 3. His!. A minister who serves a benefice with others .• The person was called a portioner because he had only a portion of the tithes or allowance that a vicar commonly has out of a rectory or impropriation. portionibus haereditariis (por-shee-oh-na-bas ha-red-i­ tair-ee-is). [Law Latin] Hist. In hereditary portions. port of call. See PORT. port of delivery. See PORT. port of departure. See PORT. port of destination. See PORT. port of discharge. See PORT. port of entry. See PORT (2). portorium (por-tohr-ee-am). [Law Latin] Hist. 1. A tax or toll levied at a port or at the gates of a city. 2. A toll for passing over a bridge. port-risk insurance. See INSURANCE. portsale. Hist. A pUblic sale of goods to the highest bidder; an auction. port-state control. Maritime law. The exercise of author­ ity under international conventions for a state to stop, board, inspect, and when necessary detain vessels sailing under foreign flags while they are navigating in the port state's territorial waters or are in one of its ports .• The purpose is to ensure the safety of the

1280

vessels as well as to enforce environmental regulations. Cf. COASTAL-STATE CONTROL; FLAG-STATE CONTROL. port toll. A duty paid for bringing goods into a port. portwarden. An official responsible for the administra­ tion of a port. po. se. abbr. PONIT SE SUPER PATRIAM. posit, vb. 1. To presume true or to offer as true. 2. To present as an explanation. position. The extent of a person's investment in a par­ ticular security or market. positional-risk doctrine. The principle by which the workers'-compensation requirement that the injury arise out of employment is satisfied if the injured worker's employment required the worker to be at the place where the injury occurred at the time it occurred. Also termed positional risk analysis; posi­ tional risk tcst. [Cases: Workers' Compensation (::::: 607.]

position of the United States. (1981) The legal position of the federal government in a lawsuit, esp. in a case involving the Equal Access to Justice Act. • Under the EAJA, the reasonableness of the position in light of precedent determines whether the government will be liable for the opposing party's attorney's fees. [Cases: United States Cr'-::> 147(10).] positive act. 1. OVERT ACT. 2. ACT (2). positive condition. See CONDITION (2). positive covenant. See COVENANT (1). positive duty. See DUTY (1). positive easement. See affirmative easement under EASEMENT.

positive evidence. See direct evidence (1) under EVIDENCE.

positive externality. See EXTERNALITY. positive fraud. See actual fraud under FRAUD. positive justice. See JUSTICE (1). positive law. (14c) A system of law promulgated and implemented within a particular political community by political superiors, as distinct from moral law or law existing in an ideal community or in some non­ political community.• Positive law typically consists of enacted law - the codes, statutes, and regulations that are applied and enforced in the courts. The term derives from the medieval use of positum (Latin "estab­ lished "), so that the phrase positive law literally means law established by human authority. - Also termed jus positivum; made law. Cf. NATURAL LAW. "A judge is tethered to the positive law but should not be shackled to it." Patrick Devlin, The Enforcement of Morals 94 (1968).

positive misprision. See MISPRISION. positive notice. See direct notice under NOTICE. positive prescription. See PRESCRIPTION (5). positive proof. See PROOF.

possession

1281

positive reprisal. See REPRISAL. positive right. See RIGHT. positive servitude. See SERVITUDE (2). positive testimony. See affirmative testimony under TES­ TIMONY. positive wrong. See WRONG. positivi juris (pOZ-~-tI-vI joor-is). [Law Latin] Ofpositive law. See POSITIVE LAW. positivism. (1846) The doctrine that all true knowl­ edge is derived from observable phenomena, rather than speculation or reasoning. See LEGAL POSITIVISM; LOGICAL POSITIVISM; positivist jurisprudence under JURISPRUDENCE. positivistic, adj. Of or relating to legal positivism. See LEGAL POSITIVISM. positivistic jurisprudence. See positivist jurisprudence under JURISPRUDENCE. positivist jurisprudence. See JURISPRUDENCE. posse (pos-ee). [Latin] (16c) 1. A possibility. See IN POSSE. Cf. IN ESSE. 2. Power; ability. 3. POSSE COMITATUS. posse comitatus (pos-ee kom-220.) civil possession. 1. Civil law. Possession existing by virtue of a person's intent to own property even though the person no longer occupies or has physical control of it. 2. Louisiana law. The continuation of possession through the possessor's presumed intent to continue holding the thing as his or her own, after the possessor' ceases to the thing corporeally. - Civil possession may La. Civ. Code arts. be evidenced by such things as paying taxes on the property or granting rights of interest in it. [Cases: Property (;:::> 1O.J constructive possession. (18c) 1. Control or dominion over a property without actual possession or custody of it. - Also termed effective possession. [Cases: Property (;=·'10.] 2. Civil law. Possession by operation oflaw of an entirety by virtue of corporeal possession of a part .• When a possessor holds title to a property and physically possesses part of it, the law will deem the possessor to hold constructive possession of the rest of the property described in the title. La. Civ. Code art. 3426. Also termed possessio fictitia; pos­ session in law. Cf. actual possession. corporeal possession. Possession of a material object, such as a farm or a coin. Also termed natural pos­ session; possessio corporis; (Ger.) Sachenbesitz. [Cases: Property criminal possession. (1811) The unlawful possession of certain prohibited articles, such as illegal drugs or drug paraphernalia, firearms, or stolen property. Receiving [Cases: Controlled Substances Stolen Goods Weapons derivative possession. (1851) Lawful possession by one (such as a tenant) who does not hold title. direct possession. See immediate possession. double possession. The doctrine that, in a bailment, both the bailor and the bailee have possession of the item that has been bailed .• This doctrine does not apply in most Anglo-American jurisdictions. "It has been suggested that the essence of bailment is that the bailee secures possession and therefore that the bailor loses possession. This elementary proposition is some' times obscured by the fact that some dicta treat the pos­ session of the bailee as the possession of the bailor. The theoretical justification for this is the doctrine of 'double possession' - a principal may have possession through the

1282 possession of an agent, This view is in accord with some foreign systems, but it does not suit the basic principles of English law which treats possession as exclusive," GW. Paton, Bailment in the Common Law 6 (1952).

effective possession. See constructive possession. exclusive possession. (l8c) The exercise of exclusive dominion over property, including the use and benefit of the property. hostile possession. (1812) Possession asserted against the claims of all others, esp. the record owner. See ADVERSE POSSESSION. [Cases: Adverse Possession C~ 58-85.] immediate possession. (I7c) Possession that is acquired or retained directly or personally. - Also termed direct possession. immemorial possession. Possession that began so long ago that no one still living witnessed its beginning. incorporeal possession. (1964) Possession ofsomething other than a material object, such as an easement over a neighbor's land, or the access of light to the windows of a house. Also termed possessio juris; quasi-possession. "It is a question much debated whether incorporeal posses­ sion is in reality true possession at all. Some are of opinion that all genuine possession is corporeal, and that the other is related to it by way of analogy merely, They maintain that there is no single generic conception which includes possessio corporiS and possessio juris as its two specific forms. The Roman lawyers speak with hesitation and even inconsistency on the point. They sometimes include both forms under the title of posseSSiO, while at other times they are careful to qualify incorporeal possession as quasi possessio - something which is not true possession, but is analogous to it. The question is one of no little difficulty, but the opinion here accepted is that the two forms do in truth belong to a single genus. The true idea of possession is wider than that of corporeal possession, just as the true idea of ownership is wider than that of corporeal owner­ ship." John Salmond, jurisprudence 288-89 (Glanville l. Williams ed., 10th ed. 1947).

indirect possession. See mediate possession. insular possession. An island territory of the United States, such as Guam. [Cases: Territories joint possession. Possession shared by two or more persons. mediate possession (mee-dee-it). Possession of a thing through someone else, such as an agent. _ In every instance of mediate possession, there is a direct pos­ sessor (such as an agent) as well as a mediate possessor (the principal). - Also termed indirect possession. "If I go myself to purchase a book, I acquire direct posses­ sion of it: but if I send my servant to buy it for me, I acquire mediate possession of it through him, until he has brought it to me, when my possession becomes immediate." John Salmond,jurisprudence 300 (Glanville L. Williams ed., 10th ed.1947),

naked possession. (16c) The mere possession of some­ thing, esp. real estate, without any apparent right or colorable title to it. [Cases: Estates in Property (;::::-1; Property 10.]

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possessory claim

natural possession. Civil law. The exercise of physical

possession ofa right. (17c) The continuing exercise and

detention or control over a thing, as by occupying a building or cultivating farmland .• Natural posses­ sion may be had without title, and may give rise to a claim of unlawful possession or a claim of owner­ ship by acquisitive prescription. The term "natural possession" has been replaced by the term "corporeal possession" in the Louisiana Civil Code, by virtue of a 1982 revision. La. Civ. Code Ann. art. 3425. See

enjoyment ofa right. • This type ofpossession is often unrelated to an ownership interest in property. For example, a criminal defendant possesses the right to demand a trial by jury. Also termed possessio juris;

corporeal possession; PRESCRIPTION (2). Cf. possessio naturalis under POSSESSIO. [Cases: Adverse Posses­ sion (;:.7> 14; Property (;::::> 1O.J notorious possession. (l8c) Possession or control that is evident to others; possession of property that, because it is generally known by people in the area where the property is located, gives rise to a presumption that the actual owner has notice of it.• Notorious pos­ session is one element of adverse possession. - Also termed open possession; open and notorious posses­ sion. See ADVERSE POSSESSION. [Cases: Adverse Pos­ session ~-::::28-33.1 open and notorious possession. See notorious posses­

sion. open possession. See notorious possession. peaceable possession. (16c) Possession (as of real property) not disturbed by another's hostile or legal attempts to recover possession; esp., wrongful pos­ session that the rightful possessor has appeared to tolerate. Cf. scrambling possession (1); ADVERSE pos­ SESSIOK.

pedal possession. (1839) Actual possession, as by living on the land or by improving it.• This term usu. appears in adverse-possession contexts. possession animo domini. Civil law. Possession with the intent to own a thing, movable or immovable; possession as an owner. See La. Civ. Code art. 3427. possession by relation oflaw. A person's legally rec­ ognized possession ofland despite the person's not having actual possession after being improperly or unlawfully dispossessed by another. possession in fact. (17c) Actual possession that may or may not be recognized by law.• For example, an employee's possession of an employer's property is for some purposes not legally considered possession, the term detention or custody being used instead. Also termed possessiO naturalis. possession in law. (16c) 1. Possession that is recognized by the law either because it is a specific type ofposses­ sion in fact or because the law for some special reason attributes the advantages and results ofpossession to someone who does not in fact possess. 2. See construc­ tive possession. - Also termed possessio civilis. "There is no conception which will include all that amounts to possession in law, and will include nothing else, and it is impossible to frame any definition from which the concrete law of possession can be logically deduced." John Salmond, jurisprudence 287 (Glanville L. Williams ed., 10th ed.1947).

(Ger.) Rechtsbesitz.

precarious possession. Civil law. Detention ofproperty by someone other than the owner or possessor on behalf of or with permission of the owner or pos­ sessor.• A lessee has precarious possession of the leased property. "[Article 3437 of the LouiSiana Civil Code defines precari­ ous possession as) 'exercise of possession over a thing with the permission of or on behalf of the owner or possessor.' The definition indicates the difference between possession in the proper sense of the word and precarious posses­ sion, that is, detention. A possessor is one who possesses as owner, whereas a precarious possessor or detainer is one who exercises factual authority over a thing with the permission of or on behalf of another person." A.N. Yian­ nopoulos, Civil Law Pl"Operty § 319, at 629 (4th ed. 2001).

quasi-possession. See incorporeal possession. scrambling possession. (1823) 1. A wrongful posses­ sion that the rightful possessor has not appeared to tolerate. Cf. peaceable possession. 2. Possession that is uncertain because it is in dispute.• With scram­ bling possession, the dispute is over who actually has posseSSion - not over whether a party's posseSSion is lawful. substantial possession. See pedis possessio under posSESSIO.

possession unity. See unity ofposseSSion under UNITY. possessio pedis. See pedis possessio under POSSESSIO. possessor. (15c) One who has possession of real or personal property; esp., a person who is in occupancy ofland with the intent to control it or has been but no longer is in that position, but no one else has gained occupancy or has a right to gain it. - possessorial (pos- 103.] 3. A measure of weight equal to 16 avoirdupois ounces or 7,000 grains. [Cases: Weights and Measures C=> 3.] 4. The basic monetary unit of the United Kingdom, equal to 100 pence.• A pound was worth 20 shillings until deci­ malization in 1968. Also termed (in sense 4) pound sterling. poundage fee. (18c) A percentage commission awarded to a sheriff for moneys recovered under judicial process, such as execution or attachment. [Cases: Sheriffs and Constables pound-breach. Hist. The offense of breaking a pound for the purpose of taking out something that has been impounded. pound ofland. (16c) An uncertain quantity ofland, usu. thought to be about 52 acres. pound sterling. See POUND (4). pour acquit (poor a-kee), n. [French "for acquittance"] French law. The formula that a creditor adds when signing a receipt. pour appuyer (poor a-poo-yay). [Law French] For the support of; in the support of. pour autrui (poor oh-troo-ee). [Law French] For others. [Cases: Contracts C-=> 187.1 pour faire proclaimer (poor fair prJ-klay-mJr), n. [Law French "for making a proclamation"] Hist. A writ addressed to the mayor or bailiff of a city or town, requiring that official to make a proclamation about some matter, such as a nuisance. pour out, vb. (1978) Slang. To deny (a claimant) damages or relief in a lawsuit . See PROTECTING POWER. 10. The military or unit of it, such as a troop of soldiers. power-delegating law. See LAW OF COMPETENCE. power given as security. See power coupled with an interest under POWER (3). power of alienation. (16c) The capacity to sell, transfer, assign, or otherwise dispose ofproperty. power of appointment. (18c) A power created or reserved by a person having property subject to dis­ position, enabling the donee of the power to designate transferees ofthe property or shares in which it will be received; esp., a power conferred on a donee by will or deed to select and determine one or more recipients of the donor's estate or income. - If the power is exercis­ able before the donee's death, it is exercisable wholly in favor of the donee. If the power is testamentary, it is exercisable wholly in favor of the donee's estate. ­ Often shortened to power. Also termed enabling power. [Cases: Powers (;:::::> 19; Wills (;:::::>589.] general power of appointment. (l8c) A power of appointment by which the donee can appoint that is, dispose of the donor's property - in favor of anyone at all, including oneself or one's own estate; esp., a power that authorizes the alienation of a fee to any alienee. - Often shortened to general power. [Cases: Powers (;:::::> 19; Wills (;:::::>589.] limited power of appointment. (1830) A power of appointment that either does not allow the entire estate to be conveyed or restricts to whom the estate may be conveyed; esp., a power by which the donee can appoint to only the person or class specified in the instrument creating the power, but cannot appoint to oneself or one's own estate. - Often shortened to limited power. Also termed special power of appointment. [Cases: Powers (;:::::> 19; Wills C':::>589.] special power of appointment. See limited power of appointment. testamentary power ofappointment (tes-t;,-men-t;,­ ree or -tree). (1858) A power of appointment created by a will. Often shortened to testamentary power. [Cases: Wills (;:::::>589.] power-of-appointment trust. See TRUST.

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power of attorney. (18c) 1. An instrument granting someone authority to act as agent or attorney-in-fact for the grantor. - An ordinary power of attorney is revocable and automatically terminates upon the death or incapacity of the principal. Also termed letter of attorney; warrant of attorney. See ATTORNEY (1). [Cases: Principal and Agent ,,":=51.] 2. The authority so granted; specif., the legal ability to produce a change in legal relations by doing whatever acts are authorized. PI. powers of attorney. durable power ofattorney. (1980) A power of attorney that remains in effect during the grantor's incompe­ tency. - Such instruments commonly allow an agent to make healthcare decisions for a patient who has become incompetent. [Cases: Principal and Agent general power ofattorney. (18c) A power of attorney that authorizes an agent to transact business for the principaL Cf. special power ofattorney. [Cases: Prin­ cipal and Agent 21.j power-of-sale foreclosure. See FORECLOSURE. power oftermination. (1919) A future interest retained by a grantor after conveying a fee simple subject to a condition subsequent, so that the grantee's estate termi­ nates (upon breach of the condition) only if the grantor exercises the right to retake it. - Also termed right of entry; right ofreentry; right ofentry for breach ofcondi­ tion; right ofentry for condition broken. See fee simple subject to a condition subsequent under FEE SIMPLE. Cf. POSSIBILITY OF REVERTER. [Cases: Deeds l59.] power over oneself. See CAPACITY (2). power over other persons. See AUTHORITY (1).

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practice of law

power politics. Int'llaw. An approach to foreign policy that encourages a nation to use its economic and military strength to enlarge its own power as an end in itself; a system in which a country is willing to bring its economic and (esp.) military strength to bear in an effort to increase its own power. power to inspect. Patents. The authority of a third party to review a patent application .• The power may be given by the applicant or an assignee, often to a poten­ tial buyer. It must specify which application the person is authorized to see, and it becomes part of the record of the application. See ACCESS (4), (5). [Cases: Patents C=>97.] p.p. abbr. 1. PER PROCURATIONEM. 2. PROPRIA PER­ SONA.

PPA. abbr. 1. See provisional application under PATENT APPLICATION.

2.

PLANT PATENT ACT.

PPI. abbr. POLICY PROOF OF INTEREST. PPO. abbr. 1. PREFERRED-PROVIDER ORGANIZATION. 2. See permanent protective order under PROTECTIVE ORDER.

p. pro. abbr. PER PROCURATIONEM. p. proc. abbr. PER PROCURATIONEM. PRo abbr. PUBLIC RELATIONS. practicable, adj. (I6c) (Of a thing) reasonably capable of being accomplished; feasible. practicably irrigable acreage. Land that is susceptible to prolonged irrigation, at reasonable cost. practical construction. See contemporaneous construc­ tion under CONSTRUCTION. practical finality. The situation in which a court order directs immediate delivery of physical property, sub­ jecting the losing party to irreparable harm ifan imme­ diate appeal were not possible .• Practical finality provides an exception to the usual rule that interlocu­ tory orders are not appealable. See FINALITY DOCTRINE. [Cases: Federal Courts (;::)572.1.] practical interpretation. See contemporaneous construc­ tion under CONSTRUCTION. practically avoidable. See AVOIDABLE. practice, n. (I5c) 1. The procedural methods and rules used in a court oflaw . 2. PRACTICE OF LAW <where is your practice?>. [Cases: Patents (;::)90(5).] practice, vb. Patents. 1. To make and use (a patented invention) . 2. To build a physical embodiment of an invention. See REDUCTION TO PRACTICE.

practice act. (1881) A statute governing practice and procedure in courts .• Practice acts are usu. supple­ mented with court rules such as the Federal Rules of Civil Procedure.

practice book. (1873) A volume devoted to the proce­ dures in a particular court or category of courts, usu. including court rules, court forms, and practice direc­ tions. practice court. 1. MOOT coeRT. 2. (cap.) BAIL COURT. practice goodwill. See GOODWILL. practice guide. A written explanation ofhow to proceed in a particular area oflaw or in a particular court or locality. practice oflaw. (l7c) The professional work of a duly licensed lawyer, encompassing a broad range ofservices such as conducting cases in court, preparing papers necessary to bring about various transactions from con­ veying land to effecting corporate mergers, preparing legal opinions on various points oflaw, drafting wills and other estate-planning documents, and advising clients on legal questions .• The term also includes activities that comparatively few lawyers engage in but that require legal expertise, such as drafting legislation and court rules. - Also termed legal practice. Cf. LAW PRACTICE. [Cases: Attorney and Client (;::) 11.] multidisciplinary practice o/law. See MULTIDISCI­ PLINARY PRACTICE.

unauthorized practice o/law. (1928) The practice of law by a person, typically a nonlawyer, who has not been licensed or admitted to practice law in a given jurisdiction. Abbr. UPL. [Cases: Attorney and Client G--;:, Il.J "The definitions and tests employed by courts to delineate unauthorized practice by non·lawyers have been vague or conclusory, while jurisdictions have differed significantly in describing what constitutes unauthorized practice in particular areas. "Certain activities, such as the representation of another person in litigation, are generally proscribed. Even in that area, many jurisdictions recognize exceptions for such matters as small·claims and landlord-tenant tribunals and certain proceedings in administrative agencies. Moreover, many jurisdictions have authorized law students and others not locally admitted to represent indigent persons or others as part of clinical legal education programs. "Controversy has surrounded many out·of-court activities such as advising on estate planning by bank trust officers, advising on estate planning by insurance agents, stock brokers, or benefit·plan and similar consultants, filling out or providing guidance on forms for property transactions by real estate agents, title companies, and closing·service companies, and selling books or individual forms contain­ ing instructions on self·help legal services accompanied by personal, non-lawyer assistance on filling them out in connection with legal procedures such as obtaining a marriage dissolution. The pOSition of bar associations has traditionally been that non·lawyer provisions of such services denies the person served the benefit of such legal measures as the attorney-client privilege, the benefits of such extraordinary duties as that of confidentiality of client information and the protection against conflicts of interest, and the protection of such measures as those regulating lawyer trust accounts and requiring lawyers to supervise non-lawyer personnel. Several jurisdictions recognize that many such services can be provided by non·lawyers without Significant risk of incompetent service, that actual experience in several states with extensive non·lawyer pro­ vision of traditional legal services indicates no significant risk of harm to consumers of such services, that persons in

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practicks need of legal services may be significantly aided in obtain­ ing assistance at a much lower price than would be entailed by segregating out a portion of a transaction to be handled by a lawyer for a fee, and that many persons can ill afford, and most persons are at least inconvenienced by, the typi· cally higher cost of lawyer services." Restatement (Third) of the law Governing lawyers § 4 cmt. c (1998).

practicks (prak-tiks). Hist. Scots law. (usu. pi.) An old collection of notes about points of practice, decisions ofthe Court of Sessions, statutes, and forms, compiled by members of the court.• An example is Balfour's Practicks (1469-1579). A precursor oflaw reports, the notes remain historical legal literature of some author­ ity. practitioner. (16c) A person engaged in the practice of a profession, esp. law or medicine. praebentes causam mortis (pri-ben-teez kaw-z 139.] PRe. abbr. POSTAL RATE COMMISSION. preamble (pree-am-bal), n. (14c) 1. An introductory statement in a constitution, statute, or other document explaining the document's basis and objective; esp., a

1295

precedent

statutory recital of the inconveniences for which the statute is designed to provide a remedy.• A preamble often consists of a series of clauses introduced by the conjunction whereas. Such a preamble is sometimes called the whereas clauses. [Cases: Statutes C;;>21O.j "The preamble cannot control the enacting part of the statute, in cases where the enacting part is expressed in clear, unambiguous terms; but in case any doubt arises on the enacting part, the preamble may be resorted to to explain it, and show the intention of the law maker." Den v. Urison, 2 N.Jl. 212 (1807).

2. Patents. The first words of a patent claim, often a single phrase indicating the field of art. • The preamble is typically nonlimiting unless it "breathes life and meaning into the claims." Corning Glass Works v. Sumitomo Elec. U.S.A., Inc., 868 F.2d 1251, 1257 (Fed. Cir. 1989). Elements, the later parts ofthe claim, narrow this broad identification more and more specifically. Cf. BODY OF A CLAIM; TRANSITION PHRASE. [Cases: Patents \.~:) 165(4).) - preambulary (pree-am-bY;:l-ler-ee), pre­ ambular (pree-am-bY;:l-I;:lr), adj.

preappointed evidence. See EVIDENCE. preargument-conference attorney. See

CIRCUIT

MEDIATOR.

preaudience. English law. The right of a senior barrister to be heard in court before other barristers. prebankruptcy, adj. Occurring before the filing of a bankruptcy petition <prebankruptcy transactions>. prebend (preb-;md), n. 1. A stipend granted in a cathedral church for the support of the members of the chapter. 2. The property from which the stipend comes. prebendary (preb-;:ln-der-ee). A person serving on the staff of a cathedral who receives a stipend from the cathedral's endowment. prebut (pree-b 88.] precedent sub silentio (s;:lb s;:l-len-shee-oh). (1825) A legal question that was neither argued nor explicitly discussed in a judicial decision but that seems to have been silently ruled on and might therefore be treated as a precedent. superprecedent. 1. A precedent that defines the law and its requirements so effectively that it prevents diver­ gent holdings in later legal decisions on similar facts or induces disputants to settle their claims without litigation.• This sense was posited by W. Landes and Richard Posner in Legal Precedent: A Theoretical and Empirical Analysis, 191. Law & Econ. 249, 251 (1976). 2. A precedent that has become so established in the law by a long line of reaffirmations that it is very dif­ ficult to overturn it; specif., a precedent that has been reaffirmed many times and whose rationale has been extended to cover cases in which the facts are dissimi­ lar, even wholly unrelated, to those of the precedent. • For example, Roe v. Wade has been called a super­ precedent because it has survived more than three dozen attempts to overturn it and has been relied on in decisions protecting gay rights and the right to die. Cf. super stare decisis under STARE DECISIS. 3. DOCTRINE OF PRECEDENT. 4. A form of pleading or property-conveyancing instrument. • Precedents are often compiled in book form and used by lawyers as guides for preparing similar documents. "Collections of Precedents have existed from very early times. In this connection precedents must not be confused with judicial precedents or case law. We refer here simply to common-form instruments compiled for use in practice, whereby the lawyer can be more or less certain that he is using the correct phraseology for the particular case before him. They were used both in conveyancing and liti· gation.... It is interesting to note that these precedents were apparently among the first legal works to be pub· lished after printing was introduced. Collections of convey· ancing precedents continued to be brought up to date or new volumes issued ...." A.K.R. Kiralfy, Potter's Outlines of English Legal History 42-43 (5th ed. 1958).

prece partium (pree-see pahr-sbee-3m). [Law Latin) On the prayer of the parties.

1296

precept (pree-sept). (14c) 1. A standard or rule ofconduct; a command or principle <several legal precepts govern here>. [Cases: Courts (;:::>87-100.J 2. A writ or warrant issued by an authorized person demanding another's action, such as a judge's order to an officer to bring a party before the court . preceptive statute. See STATUTE. preceptum amissionis superioritatis (pri-sep-tdm d-mis[h)-ee-oh-nis suu-peer-ee-or-d-tay-tis). [Law Latin "a precept of a lost superiority"] Hist. A precept to force a superior to give a vassal's disponee entry to the land. preces (pree-seez), n. [Latin "prayers"] Roman law. A petition, esp. one addressed to the emperor by a private person. Cf. RESCRIPT (3). preces primariae (pree-seez prr-mair-ee-ee). [Latin) Hist. The right of the sovereign to appoint a person to fill a vacant prebendary office after the sovereign's accession.• "Ibis right was exercised during the reign of Edward I. Also termed primae preces. See PREB­ ENDARY. precinct. A geographical unit of government, such as an election district, a police district, or a judicial district.

[Cases: Municipal Corporations (;:::>40.)

magisterial precinct. (1894) A county subdivision that

defines the territorial jurisdiction of a magistrate, constable, or justice ofthe peace. Also termed mag­ isterial district. [Cases: Justices of the Peace ¢"JS2.J precipe (pre-s;:l-pee). See PRAECIPE. precis (pray-see or pray-see), n. [French) (18c) A concise summary of a text's essential points; an abstract. PI. precis (pray-seez or pray-seez). precludi non debet (pri-kloo-dI non dee-bet or deb-et). [Latin "he ought not to be barred"] Hist. The beginning of a plaintiff's reply to a plea in bar in which the plaintiff objects to being barred from maintaining the action. ­ Sometimes shortened to precludi non. preclusion order. See ORDER (2). precognition (pree-kog-nish-;:ln). Scots law. 1. A pre­ liminary examination under oath of persons believed to have knowledge about the facts of a case, esp., in a criminal case, to determine whether there is sufficient evidence for a trial. 2. The written record of the state­ ment that a prospective witness can as evidence. precompounded prescription drug. See DRUG. preconceived malice. See MALICE AFORETHOUGHT. precondition. See CONDITION (1). precontract. See CONTRACT. predate, vb. See ANTEDATE. predation. See PREDATORY PRICING. predator. See SEXUAL PREDATOR. predatory crime. See CRIME. predatory intent. See INTENT (1).

1297

preemptive right

predatory pricing. Unlawful below-cost pricing intended to eliminate specific competitors and reduce overall competition; pricing below an appropriate measure of cost for the purpose of eliminating competitors in the short run and reducing competition in the long run. Also termed predation. See ANTITRUST. [Cases: Anti­ trust and Trade Regulation (::;>832.] "In its most orthodox form, 'predatory pricing' refers to a practice of driving rivals out of business by selling at a price below cost. The predator's intent and the only intent that can make predatory pricing rational, profit·maximizing behavior is to charge monopoly prices after rivals have been dispatched or disciplined. Predatory pricing is analyzed under the antitrust laws as illegal monopolization or attempt to monopolize under § 2 of the Sherman Act, or sometimes as a violation of the Clayton Act § 2, generally called the Robinson- Patman Act." Herbert Hovenkamp, Federal Antitrust Policy 335 (2d ed. 1999).

predecease, vb. To die before (another) <she predeceased her husband>. predecessor. 1. One who precedes another in an office or position. 2. An ancestor. predecisional, adj. Of, relating to, or occurring during the time before a decision. predial (pree-dee-dl), adj. (I5c) Of, consisting of, relating to, or attached to land <predial servitude>. - Also spelled praedial. predial servitude. See servitude appurtenant under SER­ VITUDE (2).

predial tithe. See TITHE. predicate act. (1977) 1. See predicate offense under OFFENSE (1). 2. See lesser included offense under OFFENSE (1). 3. Under RICO, one of two or more related acts ofracketeering necessary to establish a pattern. See RACKETEER INFLUENCED AND CORRUPT ORGANIZA­ TIONS ACT. 4. See predicate act under ACT (2). [Cases:

Racketeer Influenced and Corrupt Organizations 5,103.] predicate fact. See FACT. predicate offense. See lesser included offense under OFFENSE (1).

prediction theory. 1. See BAD-MAN THEORY. 2. See PRE­ DICTIVE THEORY OF LAW.

predictive theory oflaw. (1956) The view that the law is nothing more than a set of predictions about what the courts will decide in given circumstances. - This theory is embodied in Holmes's famous pronounce­ ment, "The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law." Oliver Wendell Holmes, The Path ofthe Law, 10 Harv. L. Rev. 457, 460-61 (1897). Also termed prediction theory. Cf. BAD-MAN THEORY. predisposition. (17c) A person's inclination to engage in a particular activity; esp., an inclination that vitiates a criminal defendant's claim of entrapment. [Cases: Criminal LawC=>37(4).] predominant-aspect test. See PREDOMINANT-PURPOSE TEST.

predominant-purpose test. An assessment of whether Article 2 of the UCC applies to an exchange, conducted by considering whether the exchange's chief aspect, viewed in light of all the circumstances, is the sale of goods. - If goods account for most of the exchange's value, it is probably a sale; if services account for most of the value, it probably is not. The leading case is Bone­ brake v. Cox, 499 F.2d 951, 960 (Sth Or. 1974). - Also termed predominant-aspect test. [Cases: Sales preemption (pree-emp-shan), n. (lSc) 1. The right to buy before others. See RIGHT OF PREEMPTION. [Cases: Con­ tracts (;=·16.5; Sales (;='24; Vendor and Purchaser C=> 18(.5).]2. The purchase of something under this right. 3. An earlier seizure or appropriation. 4. The occupa­ tion of public land so as to establish a preemptive title. 5. Constitutional law. The [Cases: Public Lands principle (derived from the Supremacy Clause) that a federal law can supersede or supplant any inconsis­ tent state law or regulation. - Also termed (in sense 5) federal preemption. See COMPLETE-PREEMPTION DOCTRINE. [Cases: States C;:. 18.3.] preempt, vb. ­ preemptive, adj. conflict preemption. See obstacle preemption. Garmon preemption. Labor law. A doctrine prohib­ iting state and local regulation of activities that are actually or arguably (1) protected by the National Labor Relations Act's rules relating to the right of employees to organize and bargain collectively, or (2) prohibited by the National Labor Relations Act's pro­ vision that governs unfair labor practices. San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 79 S.Ct. 773 (1959). Also termed Garmon doctrine. See COLLECTIVE BARGAINING; UNFAIR LABOR PRACTICE.

[Cases: Labor and Employment C-~968, 1670; States (>18,46.] Machinists preemption. Labor law. The doctrine pro­ hibiting state regulation of an area oflabor activity or management-union relations that Congress has intentionally left unregulated. Lodge 76, Int'l Ass'n of IHachinists v. Wisconsin Employment Relations Comm'n, 427 U.S. 132,96 S.Ct. 2548 (1976). [Cases: Labor and Employment (,.'-=968.] obstacle preemption. The principle that federal or state law can supersede or supplant state or local law that stands as an obstacle to accomplishing the full purposes and objectives of the overriding federal or state law. - Also termed conflict preemption. [Cases: States C=> 185.] preemption claimant. (lS24) One who has settled on land subject to preemption, intending in good faith to acquire title to it. preemption right. (lSc) The privilege to take priority over others in claiming land subject to preemption .• The privilege arises from the holder's actual settlement of the land. See PREEMPTION (3). preemptive right. A shareholder's privilege to purchase newly issued stock - before the shares are offered to the public - in an amount proportionate to the

preexisting condition

shareholder's current holdings in order to prevent dilution ofthe shareholder's ownership interest - This right must be exercised within a fixed period, usu. 30 to 60 days. - Also termed subscription privilege. See SUB­ SCRIPTION RIGHT. Cf. rights offering under OFFERING. [Cases: Corporations 0158.] preexisting condition. See CONDITION (2). preexisting duty. See DUTY (1). preexisting-duty rule. (1990) Contracts. The rule that if a party does or promises to do what the party is already or refrains or promises to legally obligated to do refrain from doing what the party is already legally obligated to refrain from doing the party has not incurred detriment. - This rule's result is that the promise does not constitute adequate consideration for contractual purposes. For example, if a builder agrees to construct a building for a specified price but later threatens to walk off the job unless the owner promises to pay an additional sum, the owner's new promise is not enforceable because, under the preexisting-duty rule, there is no consideration for that promise. Also termed preexisting-Legal-duty rule. [Cases: Contracts 075.] prefect (pree-fekt), n. 1. A high official or magistrate put in charge of a particular command, department, or region. 2. In New Mexico, a probate judge. prefect of the city. See PRAEFECTUS URBI. prefer, vb. (l4c) 1. To put forward or present for con­ sideration; esp. (of a grand jury), to bring (a charge or indictment) against a criminal suspect . 2. To give priority to, such as to one creditor over another . preference. 1. The act of favoring one person or thing over another; the person or thing so favored. 2. Priority of payment given to one or more creditors by a debtor; a creditor's right to receive such priority. 3. Bankruptcy. PREFERENTIAL TRANSFER.

insider preference. A transfer of property by a bank­ ruptcy debtor to an insider more than 90 days before but within one year after the filing of the bankruptcy petition. [Cases: Bankruptcy 02608(2).] liquidation preference. A preferred shareholder's right, once the corporation is liquidated, to receive a speci­ fied distribution before common shareholders receive anything. [Cases: Corporations 0629.] voidable preference. See PREFERENTIAL TRANSFER. preference case. See preferred cause under CAUSE (3). preference cause. See preferred cause under CAUSE (3). preference in being recognized. See PRECEDENCE (4). preference shares. See preferred stock under STOCK. preferential assignment. See PREFERENTIAL TRANSFER. preferential ballot. See preferential vote under VOTE (1).

1298

preferential debt. See DEBT.

preferential nonunion shop. See SHOP.

preferential rule. (1959) Evidence. A rule that prefers

one kind of evidence to another. _ It may work pro­ viSionally, as when a tribunal refuses to consider one kind ofevidence until another kind (presumably better) is shown to be unavailable, or it may work absolutely, as when the tribunal refuses to consider anything but the better kind of evidence. [Cases: Criminal Law 0 398.] "There are only three or four ... sets of [preferential] rules. There is a rule preferring the production of the original of a document, in preference to a copy. There is a rule requiring the attesting witness to a will to be summoned to evidence its execution. And there is a rule preferring the magis­ trate's official report of testimony taken before him. Then there are a few miscellaneous rules, such as the offiCially certified enrollment of a statute, etc." John H. Wigmore, A

Students' Texrbook of the Law of Evidence 219 (1935).

preferential shop. See preferential union shop under SHOP.

preferential tariff. See TARIFF (2). preferential transfer. Bankruptcy. A prebankruptcy transfer made by an insolvent debtor to or for the benefit of a creditor, thereby allowing the creditor to receive more than its proportionate share of the debtor's assets; specif., an insolvent debtor's transfer of a property interest for the benefit of a creditor who is owed on an earlier debt, when the transfer occurs no more than 90 days before the date when the bankruptcy petition is filed or (if the creditor is an insider) within one year of the filing, so that the creditor receives more than it would otherwise receive through the distribu­ tion of the bankruptcy estate. - Under the circum­ stances described in 11 USCA § 547, the bankruptcy trustee may recover for the estate's benefit - a pref­ erential transfer from the transferee. Also termed preference; voidable preference; voidable transfer; pref erential aSSignment. Cf. FRAUDULENT CONVEYANCE (2). [Cases: BankruptcyG---::>260l-2623.) preferential union shop. See SHOP. preferential vote. See VOTE (1). preferential voting. See VOTING. preferred, adj. Possessing or accorded a priority or privi­ lege . preferred cause. See CAUSE (3). preferred creditor. See CREDITOR. preferred dividend. See DIVIDEND. preferred docket. See DOCKET (2). preferred-provider organization. (1984) A group of healthcare providers (such as doctors, hospitals, and pharmacies) that agree to provide medical services at a discounted cost to covered persons in a given geo­ graphic area. - Abbr. PPO. Cf. HEALTH-MAINTENANCE ORGANIZATION; MANAGED-CARE ORGANIZATION.

[Cases: Health Insurance preferred stock. See STOCK.

2501.]

1299

preferring of charges. A1ilitary law. The formal com­ pletion of a charge sheet, which includes signing and swearing to the charges and specifications. - Only a person subject to the Uniform Code of Military Justice can prefer charges. Cf. INITIATION OF CHARGES. [Cases: Military Justice ~-:;;951.1 prefiled bill. See BILL (3). Pregnancy-Discrimination Act. A federal statute that prohibits workplace discrimination against a pregnant woman or against a woman affected by childbirth or a related medical condition. 42 USCA § 2000. _ The Pregnancy-Discrimination Act is part of Title VII of the Civil Rights Act of 1964. Abbr. PDA. [Cases: Civil Rights (;:) 1176.] pregnant chad. See dimpled chad under CHAD. prehearing conference. (1946) An optional conference for the discussion of procedural and substantive matters on appeal, usu. held in complex civil, criminal, tax, and agency cases. - Those attending are typically the attor­ neys involved in the case as well as a court represen­ tative such as a judge, staff attorney, or deputy clerk. Fed. R. App. P. 33. lCases: Appeal and Error {~808; Criminal Law 0=>632(5); Federal Courts "The prehearing conference, if held, generally is scheduled after the time for appeal and cross-appeal has passed, and as soon as it becomes apparent that the case is complex due to the legal issues, the length of the record, or the number of parties. In a complex or multiparty case, the conference provides a forum in which to discuss briefing responsibilities, timing, and handling the record and joint appendix. There may be some discussion of the amount of oral argument the parties desire and how that argument i will be divided ... ." Michael E. Tigar, Federal Appeals: i Jurisdiction and Practice § 8.06, at 309-10 (2d ed. 1993).

prehire agreement. An employment contract between a union and an employer, in which the employer agrees to hire union members. See closed shop under SHOP. prejudgment attachment. See ATTACHMENT (1). prejudgment interest. See INTEREST (3). prejudice, n. (14c) 1. Damage or detriment to one's legal rights or claims. See dismissal with prejudice and dis­ missal without prejudice under DISMISSAL. legal prejudice. (18c) A condition that, if shown by a party, will usu. defeat the opposing party's action; esp., a condition that, if shown by the defendant, will defeat a plaintiff's motion to dismiss a case without prejudice. - The defendant may show that dismissal will deprive the defendant of a substantive property right or preclude the defendant from raising a defense that will be unavailable or endangered in a second suit. [Cases: Federal Civil Procedure 0=> 1700; Pretrial Procedure (- .. 510.] undue prejudice. (17c) The harm resulting from a fact­ trier's being exposed to evidence that is persuasive but inadmissible (such as evidence of prior criminal conduct) or that so arouses the emotions that calm and logical reasoning is abandoned.

preliminary statement

2. A preconceived judgment formed with little or no factual basis; a strong bias. [Cases: Judges 0=>49.] ­ prejudice, vb. - prejudicial, adj. prejudicial error. See reversible error under ERROR (2). prejudicial publicity. (1935) Extensive media atten­ tion devoted to an upcoming civil or criminal trial. _ Under the Due Process Clause, extensive coverage of a criminal trial may deprive the defendant of a fair triaL [Cases: Criminal Law C~:)633(1); Federal Civil Proce­ dure 0=> 1951; Trial preliminary, adj. Coming before and usu. leading up to the main part of something <preliminary negotia­ tions>. preliminary amendment. See PATENT-APPLICATION AMENDMENT.

preliminary availability search. Trademarks. A cursory or moderate search of registered trademarks and com­ mon-law uses of proposed-trademark names or phrases, done to narrow the list of names phrases before con­ ducting a thorough search. preliminary complaint. See COMPLAINT. preliminary crime. See inchoate offense under OFFENSE (1).

preliminary evidence. See EVIDENCE. preliminary examination. 1. See EXAMINATION (3). 2. See PRELIMINARY HEARING. preliminary hearing. A criminal hearing (usu. con­ ducted by a magistrate) to determine whether there is sufficient evidence to prosecute an accused person. ­ If sufficient evidence exists, the case will be set for trial or bound over for grand-jury review, or an information will be filed in the trial court. - Also termed prelimi­ nary examination; probable-cause hearing; bindover hearing; examining trial. Cf. ARRAIGNMENT. [Cases: Criminal LawC=)222-238.] preliminary injunction. See INJUNCTION. preliminary inquiry. Military law. The initial investiga­ tion of a reported or suspected violation of the Uniform Code of Military Justice. Cf. PRETRIAL INVESTIGA­ TION.

preliminary-inquiry officer. See OFFICER (2). preliminary letter. See INVITATION TO NEGOTIATE. preliminary objection. Int'llaw. In a case before an international tribunal, an objection that, if upheld, would render further proceedings before the tribunal impossible or unnecessary. _ An objection to the court's jurisdiction is an example of a preliminary objection. preliminary proof. See PROOF. preliminary prospectus. See PROSPECTUS. preliminary protective hearing. See shelter hearing under HEARING. preliminary statement. (1834) The introductory part of a brief or memorandum in support of a motion, in which the advocate summarizes the essence of what follows. - In at least two jurisdictions, New York and

preliminary warrant

New Jersey, the preliminary statement is a standard part ofcourt papers. In many other jurisdictions, advo­ cates do not routinely include it. But preliminary state­ ments are typically allowed, even welcomed, though not required. Also termed summary ofargument. preliminary warrant. See WARRANT (1). premarital, adj. Of, relating to, or occurring before marriage. Cf. POSTMARITAL. premarital agreement. See PRENUPTIAL AGREEMENT. premarital asset. See ASSET. prematurity. 1. The circumstance existing when the facts underlying a plaintiff's complaint do not yet create a live claim. Cf. RIPENESS. [Cases: Action (;::::>6,62; Federal Courts 12.1.] 2. The affirmative defense based on this circumstance. premeditated, adj. (16c) Done with willful deliberation and planning; consciously considered beforehand . [Cases: Homicide Sen­ tencing and Punishment (;::::> 1676.] premeditated malice. See MALICE AFORETHOUGHT. premeditation, n. (l5c) Conscious consideration and planning that precedes some act (such as committing a crime). [Cases: Homicide (;:::·535; Sentencing and Pun­ ishment (;::::> 1676.] premeditate, vb. premier serjeant. See SERJEANT-AT-LAW. premise (prem-is), n. (l4c) A previous statement or con­ tention from which a conclusion is deduced. Also spelled (in BrE) premiss. - premise (prem-is or pri­ mlZ), vb. premises (prem-. 2. The part of a deed that describes the land being conveyed, as well as naming the parties and identifying relevant facts or explaining the reasons for the deed. 3. A house or building, along with its grounds <smoking is not allowed on these premises>. (~ a house or building) has a curious history in legal usage. Originally. in the sense of things mentioned previously. it denoted the part of a deed that sets forth the names of the grantor and grantee, as well as the things granted and the consideration. Then. through hypal­ lage in the early 18th century, it was extended to refer to the subject of a conveyance or bequest as specified in the premises of the deed. Finally. it was extended to refer to a house or building along with its grounds. In short, someone who says, "No alcohol is allowed on these premises." is engaging unconsciously in a popularized legal technicality: Bryan A. Garner, A Dictionary of Modern Legal Usage 685 (2d ed. 1995).

"Premises

demised premises. Leased property. - Also termed premises demised. premises liability. (1950) A landowner's or landholder's tort liability for conditions or activities on the premises. [Cases: Negligence 1000,1001.] premises rnle. See PARKING-LOT RULE.

1300

premium, n. 1. The periodic payment required to keep an insurance policy in effect. - Also termed insurance premium. [Cases: Insurance (;::::>2000.] advance premium. A payment made before the start of the period covered by the insurance policy. lCases: Insurance (;::::> 1760.] earned premium. The portion of an insurance premium applicable to the coverage period that has already expired. _ For example, ifthe total premium for a one-year insurance policy is $1,200, the earned premium after three months is $300. [Cases: Insur­ ance (;::::>2000.] gross premium. 1. The net premium plus expenses (Le., the loading), less the interest factor. See LOADING; INTEREST FACTOR. [Cases: Insurance 2005.] 2. The premium for participating life insurance. See participating insurance under INSURANCE. natural premium. Ihe actual cost oflife insurance based solely on mortality rates. - This amount will be less than a net premium. See net premium. net level annual premium. A net premium that stays the same each year. net premium. 1. Generally, the premium amount for an insurance policy less agent commissions. [Cases: Insurance (;::::> 16S2. 2000.] 2. The portion of the premium that covers the estimated cost of claims. 3. The money needed to provide benefits under an insur­ ance policy. - The net premium in a life-insurance policy is calculated by using an assumed interest and mortality-table rate; it does not include additional expense amounts that will be charged to the policy­ holder. - Also termed net valuation premium. net single premium. The money that must be col­ lected from a policyholder at one time to guarantee enough money to pay claims made on an insurance policy. - This amount assumes that interest accrues at an expected rate and is based on a prediction of the likelihood of certain claims. [Cases: Insurance (;::::>2037.] net valuation premium. See net premium. unearned premium. The portion of an insurance premium applicable to the coverage period that has not yet occurred. _ In the same example as above under earned premium, the unearned premium after 1371, three months is $900. [Cases: Insurance 1930,2046.] 2. A sum of money paid in addition to a regular price, salary, or other amount; a bonus. 3. The amount by which a security's market value exceeds its face value. - Also termed (sped£.) bond premium. Cf. DISCOUNT

(3).

control premium. A premium paid for shares carrying the power to control a corporation. - The control premium is often computed by comparing the aggre­ gate value of the controlling block of shares with the cost that would be incurred if the shares could be

prerogative of mercy

1301

acquired at the going market price per share. [Cases: Corporations 0174.] 4. The amount paid to buy a securities option. - Also termed (in sense 4) option premium. premium bond. See BOND (3). premium loan. See LOAN. premium note. See NOTE (1). premium on capital stock. See paid-in surplus under SURPLUS.

premium pudoris. See PRAEMIUM PUDIClTIAE. premium rate. Insurance. The price per unit oflife insur­ ance.• It is usu. expressed as a cost per thousands of dollars of coverage. Life insurers use three factors ­ the interest factor, the mortality factor, and the risk factor - to calculate premium rates. Sometimes shortened to rate. See INTEREST FACTOR; MORTALITY FACTOR; RISK FACTOR. [Cases: Insurance 1541­ 1546.] premium stock. See STOCK. premium tax. See TAX. prenatal injury. Harm to a fetus or an embryo. Cf. BIRTH INJURY.

prenatal tort. See TORT. prender. The right to take a thing before it is offered. ­ Also spelled prendre. prender de baron (pren-dar da bar-an). [Law French "a taking of husband"] Hist. A plea asserting that the former wife of a murder victim should not be allowed to appeal a murder case against the alleged killer because she has since remarried. prendre. See PRENDER. prenup, n. Slang. See PRENUPTIAL AGREEMENT. prenuptial (pree-nap-shal), adj. (1857) Made or occur­ ring before marriage; premaritaL - Also termed ante­ nuptial (an-tee-nap-shal). Cf. POSTNUPTIAL. prenuptial agreement. (1882) An agreement made before marriage usu. to resolve issues of support and property division if the marriage ends in divorce or by the death of a spouse. Also termed antenuptial agreement; antenuptial contract; premarital agreement; premarital contract; marriage settlement. - Sometimes shortened to prenup. Cf. POSTNUPTIAL AGREEMENT; COHABITATION AGREEMENT. [Cases: Husband and Wife 029,31.J prenuptial gift. See GIFT. prenuptial will. See WILL. prepaid card. See STORED-VALUE CARD. prepaid expense. See EXPENSE. prepaid income. See INCOME. prepaid interest. See INTEREST (3). prepaid legal services. (1963) An arrangement usu. serving as an employee benefit - that enables a person

to make advance payments for future legal services. [Cases: Attorney and Client 0137.] preparation. Criminal law. The act or process of devising the means necessary to commit a crime. Cf. ATTEMPT.

prepayment clause. (1935) A loan-document provision that permits a borrower to satisfy a debt before its due date.• Although any interest not yet due is waived, the lender may impose a penalty for prepayment. [Cases: Bills and Notes C~') 129,429.] prepayment penalty. See PENALTY (2). prepense (pree-pens), ad). Rare. Planned; deliberate <malice prepense>. prepetition (pree-pa-tish-an), adj. (I938) Occurring before the filing of a petition (esp. in bankruptcy) <prepetition debts>. preponderance (pri-pon-d 1.) liberative prescription (lib-;:l-rJ-tiv). Civil law. A bar to a lawsuit resulting from its untimely filing. La. Civ. Code art. 3447. - This term is essentially the civil-law equivalent ofa statute oflimitations. See STATUTE OF LIMITATIONS. [Cases: Limitation of Actions prescription in a que estate (ah kee). [Law French "pre­ scription in whose estate"] A claim of prescription based on the immemorial enjoyment of the right by the claimant and the former owners whose estate the claimant has succeeded to. prescription ofnonuse. Civil law. A mode ofextinction of a real right other than ownership (such as a servi­ tude) as a result of failure to exercise the right for a

1302

speCified period of time. [Cases: Adverse Possession EasementsC=30.j prescriptive easement. See EASEMENT. prescriptive right. (17c) A right obtained by prescription . [Cases: Nuisance ~1l-17.] presence, n. 1. The state or fact of being in a particular place and time . 2. Close physical proximity coupled with aware­ ness . constructive presence. 1. Criminal law. Legal imputa­ tion of having been at a crime scene, based on having been close enough to the scene to have aided and abetted the crime's commission. See CONSPIRACY. [Cases: Criminal Law C=59(3).] 2. Wills & estates. Legal imputation of a witness's having been in the room when a will was signed, based on the fact that the testator and the witness were able to see each other at the time of the signing. _ This principle was commonly employed until the 20th century, when the presence-of-the-testator rule became dominant. See PRESENCE-OF-THE-TESTATOR RULE. [Cases: Wills ~109;

~123(5).]

presence-of-defendant rule. The principle that a felony defendant is entitled to be present at every major stage ofthe criminal proceeding. Fed. R. Crim. P. 43. [Cases: Criminal Law ~636.J presence of the court. (l8e) The company or proximity of the judge or other courtroom official. - For purposes of contempt, an action is in the presence of the court if it is committed within the view of the judge or other person in court and is intended to disrupt the court's business. "Some deCisions indicate that the term 'in the presence of the court' is to be given a liberal interpretation. that 'the court' consists not of the judge, the courtroom, the jury, or the jury room individually. but of all of these combined, and that the court is present wherever any of its constitu­ ent parts is engaged in the prosecution of the business of the court according to law." 17 Am. Jur. 2d Contempt § 19 (1990).

presence-of-the-testator rule. The principle that a testator must be aware (through Sight or other sense) that the witnesses are signing the will. - Many juris­ dictions interpret this requirement liberally, and the Uniform Probate Code has dispensed with it. [Cases: Wills 117.1 present, adj. (14c) 1. Now existing; at hand . 2. Being considered; now under discussion . 3. In attendance; not elsewhere . present ability. See ABILITY. present and voting. Parliamentary law. (Of a member) casting a vote. - The result of a vote is ordinarily determined with reference to the members voting (often termed, somewhat redundantly, as "present and

voting"). An answer of "present" when casting a vote amounts to an abstention because the voter is indicat­ ing that he or she is present but not voting. See ABSTAIN (1).

presentation. (I5c) 1. 1he delivery of a document to an issuer or named person for the purpose of initiat­ ing action under a letter of credit; PRESENTMENT (3). [Cases: Banks and Banking 191.J 2. Hist. Eccles. law. A benefice patron's nomination of a person to fill a vacant benefice.• Ifthe bishop rejected the appointee, the patron could enforce the right to fill the vacancy by writ of quare impedit in the Court of Common Pleas. See QUARE IMPEDIT. Cf. ADVOWSON; INSTITUTION (5). next presentation. Hist. Eccles. law. In the law of advowsons, the right to present to the bishop a clerk to fill the first vacancy that arises in a church or other ecclesiastical office. present case. See case at bar under CASE. present conveyance. See CONVEYANCE. present covenant. See COVENANT (4). presentence hearing. (1940) A proceeding at which a judge or jury receives and examines all relevant infor­ mation regarding a convicted criminal and the related offense before passing sentence. Also termed sen­ tencing hearing. [Cases: Sentencing and Punishment 325.) presentence-investigation report. (1943) A probation officer's detailed account of a convicted defendant's educational, criminal, family, and social background, conducted at the court's request as an aid in passing sentence. See Fed. R. Crim. P. 32(c). - Abbr. PSI; PIR. - Often shortened to presentence report. [Cases: Sentencing and Punishment C=-.c275-30l.) present enjoyment. See ENJOYMENT. presenter. Commercial law. Any person presenting a document (such as a draft) to an issuer for honor. VCC § 5-102. present estate. 1. ESTATE (1). 2. See present interest under INTEREST (2). presenting bank. See BANK. presenting jury. See GRAND JURY. present interest. See INTEREST (2). presentment (pri-zent-m;:mt). (15c) 1. The act ofpresent­ ing or laying before a court or other tribunal a formal statement about a matter to be dealt with legally. 2. Criminal procedure. A formal written accusation returned by a grand jury on its own initiative, without a prosecutor's previous indictment request. • Present­ ments are obsolete in the federal courts. [Cases; Grand Jury 42.] "A grand jury has only two functions, either to indict or to return a 'no bill.' The Constitution speaks also of a 'present­ ment,' but this is a term with a distinct historical meaning now not well understood. Historically presentment was the process by which a grand jury initiated an independent investigation and asked that a charge be drawn to cover the facts should they constitute a crime. With United States attorneys now always available to advise grand juries,

proceeding by presentment is an outmoded practice." 1 Charles Alan Wright, Federal Practice and Procedure § 110, at 459 (3d ed. 1999).

3. 'The formal production of a negotiable instrument for acceptance or payment. - Also termed (in sense 3) presentation. [Cases; Bills and Notes 385-407.] "Presentment and dishonor occur, for instance, when the holder of a check attempts to cash it at the drawee bank, but payment is refused because the drawer lacks sufficient funds on deposit. The demand for payment is presentment. The bank's refusal to pay is dishonor." 2 James J. White & Robert S. Summers, Uniform Commercial Code § 16-8. at 100 (4th ed. 1995).

presentmentfor acceptance. (i8c) Production of an instrument to the drawee, acceptor, or maker for acceptance.• This type of presentment may be made anytime before maturity, except that with bills payable at Sight, after demand, or after sight, present­ ment must be made within a reasonable time. [Cases: Bills and Notes 388.J presentment for payment. (18c) Production of an instrument to the drawee, acceptor, or maker for payment. • This type of presentment must be made on the date when the instrument is due. [Cases: Bills and Notes C:::::o399.] presentment of Englishry. Hist. The offering of proof that a slain person was English rather than (before the Conquest) a Dane or (after the Conquest) a Norman. • 1his requirement was issued first by the conquering Danes and then by the Normans to protect these groups from the English by the threat of a village- or hundred­ wide amercement if the inhabitants failed to prove that a dead person found among them was English. presentment warranty. See WARRANTY (2). present recollection refreshed. (1908) Evidence. A wit­ ness's memory that has been enhanced by shOWing the witness a document that describes the relevant events. • The document itself is merely a memory stimulus and is not admitted in evidence. Fed. R. Evid. 612. ­ Also termed refreshing recollection; refreshing memory; present recollection revived. Cf. PAST RECOLLECTION RECORDED. [Cases: Witnesses 253.] presents, n. pI. (14c) Archaic. 1he instrument under consideration.• This is usu. part of the phrase these presents, which is part of the longer phrase know all men by these presents (itself a loan translation from the Latin noverint universi per praesentes). See KNOW ALL MEN BY THESE PRESENTS. present sale. See SALE. present sense impression. (1942) Evidence. One's percep­ tion ofan event or condition, formed during or imme­ diately after the fact. • A statement containing a present sense impression is admissible even if it is hearsay. Fed. R. Evid. 803(1). Cf. EXCITED UTTERANCE. [Cases: Criminal Law 419(2.15); Evidence (...'-:> 120.] present use. See USE (4). present value. 1he sum of money that, with compound interest, would amount to a specified sum at a specified

preservation order

future date; future value discounted to its value today. Also termed present worth. adjusted present value. An asset's value determined by adding together its present value and the value added by capital-structure effects. - Abbr. APV. net present value. The present value of net cash flow from a project, discounted by the cost of capital. • This value is used to evaluate the project's investment potential. Abbr. NPV. preservation order. A direction to a property owner to maintain a historic building or conserve a natural habitat. preside, vb. (1Sc) 1. To occupy the place ofauthority, esp. as a judge during a hearing or trial <preside over the proceedings>. 2. To exercise management or control <preside over the estate>. president, n. 1. The chief political executive of a govern­ ment; the head of state. [Cases: United States C=:;26.] 2. The chief executive officer of a corporation or other organization. 3. CHAIR (1). 4. CHAIR (3). See (in senses 3 & 4) presiding officer (3) under OFFICER (2). - presi­ dential, adj. immediate past president. The last president who held office before the incumbent. See EMERITUS. president-elect. An officer who automatically succeeds to the presidency when the incumbent president's term expires .• Ifthe organization's governing docu­ ments so provide, the president-elect may act as presi­ dent in the incumbent president's absence, or may assume the presidency early if the incumbent does not finish the term. president emeritus. See EMERITUS. presidential elector. See ELECTOR (1). Presidential message. See MESSAGE. president judge. See presiding judge under rUDGE. president of a court-martial. AIilitary law. The senior member in rank present at a court-martial trial. [Cases: Military Justice C=:;870.j President of the United States. The highest execu­ tive officer of the federal government of the United States.• The President is elected to a four-year term by a majority of the presidential electors chosen by popular vote from each of the states. The President must be a natural citizen, must be at least 3S years old, and must have been a resident for 14 years within the United States. U.S. Const. art. II, § 1. [Cases: United States C=:;26.] presiding judge. See JUDGE. presiding juror. See JUROR. presiding officer. See OFFICER (2). press, n. I. The news media; print and broadcast news organizations collectively. [Cases: Constitutional Law ~90(2).1 'The Constitution specifically selected the press, which includes not only newspapers, books, and magazines, but also humble leaflets and circulars, to play an important role

1304 in the discussion of public affairs." Mills v. Alabama, 384 U.S. 214,219,86 S.Ct. 1434, 1437 (1966).

"'Press' could refer to one or more subsets of media, defined either by function or form. To the extent that existing law defines 'the press' at all, it does so mostly in terms of specific media forms. The Supreme Court has addressed the matter only obliquely .... [lIt has never had to decide whether a particular litigant was 'press.' In most cases the question does not arise because the claimed right would be protected as fully by the Speech Clause as by the Press Clause. The cases in which the Court seems to rely on the Press Clause have involved newspapers or magazines whose status as press was unquestioned. The Court on other occasions has mentioned 'publishers and broadcasters,' 'the media,' 'editorial judgment,' 'editorial control,' 'journalistic discretion,' and 'newsgathering' as possible objects of protection. The most famous discus­ sion of the meaning of the Press Clause, a 1974 speech by Justice Stewart, identified its beneficiaries as 'the daily newspapers and other established media,' or 'newspapers, television, and magazines.'" David A. Anderson, Freedom of the Press, 80 Texas L. Rev. 429, 436 (2002).

2. Rist. A piece of parchment, as one sewed together to make up a roll or record of judicial proceedings. Press Clause. The First Amendment provision that "Congress shall make no law ... abridging the freedom ... of the press." U.S. Const. amend l. - Also termed Freedom of the Press Clause. [Cases: Constitu­ tional LawC=:;2070-2081.] prest (prest). Rist. A duty to be paid by the sheriff upon his account in the Exchequer or for money remaining in his custody. prestable (pres-ta-bal), adj. Scots law. 1. Payable. 2. Enforceable; exigible .• This term appears generally in reference to a debt. Cf. EXIGIBLE. prestation ( pre-stay-shan). Rist. 1. A payment (or presting) of money. 2. The rendering of a service. prest money. Rist. A monetary payment made to a soldier or sailor on enlistment. presume, vb. To assume beforehand; to suppose to be true in the absence of proof. presumed bias. See implied bias under BIAS. presumed crime. See constructive crime under CRIME. presumed fact. See FACT. presumed father. See FATHER. presumed-seller test. A method of imposing product liability on a manufacturer if the manufacturer, having full knowledge of the product's dangerous propensi­ ties, would be negligent in placing the product on the market. presumption. (ISc) A legal inference or assumption that a fact exists, based on the known or proven existence of some other fact or group of facts.• Most presump­ tions are rules of evidence calling for a certain result in a given case unless the adversely affected party over­ comes it with other evidence. A presumption shifts the burden of production or persuasion to the opposing party, who can then attempt to overcome the presump­ tion. See BURDEN OF PRODUCTION. [Cases: Criminal Law Evidence C=:;S3-89.]

"A presumption may be defined to be an inference as to the existence of one fact from the existence of some other fact founded upon a previous experience of their connec­ tion." William P. Richardson, The Law of Evidence § 53, at 25 (3d ed. 1928).

absolute presumption. See conclusive presumption. adverse presumption. See adverse inference under INFERENCE.

artificial presumption. See presumption oflaw. conclusive presumption. (I8c) A presumption that cannot be overcome by any additional evidence or argument . Also termed absolute presumption; irre­ buttable presumption; mandatory presumption; pre­ sumption juris et de jure. Cf. rebuttable presumption. [Cases: Constitutional Law (;:::::>253(5); Evidence 53-89.] '''Conclusive presumptions' or 'irrebuttable presumptions' are usually mere fictions, to disguise a rule of substantive law (e.g., the conclusive presumption of malice from an unexcused defamation); and when they are not fictions, they are usually repudiated by modern courts." John H. Wigmore, A Students' Textbook of the Law of Evidence 454 (1935). "Conclusive presumptions, sometimes called irrebuttable presumptions of law, are really rules of law. Thus it is said that a child under the age of fourteen years is conclusively presumed to be incapable of committing rape. This is only another way of saying that such a child cannot be found guilty of rape." Richard Eggleston, Evidence, Proof and Probability 92 (1978).

conditional presumption. See rebuttable presump­ tion. conflicting presumption. (1830) One of two or more presumptions that would lead to opposite results. ­ Also termed inconsistent presumption. [Cases: Criminal Law (:::;:'325; Evidence (::::>88.] '''Conflicting presumptions' are simply two ordinary pre­ sumptions that would give opposite results; usually they are really successive presumptions. E.g., where A proves himself to be the son of N, wife of M, but M and N were already separated, and later M married P, and had a son B, the later marriage of M might presume a prior divorce from N before separation to make it valid, and yet the birth of A from a married mother might be presumed legitimate, and thus the question whether A or B was the legitimate son would be attended by opposing presumptions. But in this aspect the doctrine of presumptions is clouded with difficulties and leads to much vain speculation and logical unrealism." John H. Wigmore, A Students' Textbook of the Law of Evidence 454 (1935).

disputable presumption. See rebuttable presumption. dry presumption. A presumption that has no proba­ tive value unless the party with the burden of proof presents evidence to support the presumption. [Cases: Evidence (:::;:53.] factual presumption. See presumption offact. heeding presumption. (1990) A rebuttable presumption that an injured product user would have followed a warning label had the product manufacturer provided one. [Cases: Products Liability

inconsistent presumption. See conflicting presump­ tion. irrebuttable presumption. See conclusive presump­ tion. legal presumption. See presumption oflaw. mandatory presumption. See conclusive presump­ tion. McClanahan presumption. See MCCLANAHA>I PRE­ SUMPTION.

mixed presumption. (1838) A presumption containing elements of both law and fact. Morgan presumption. See MORGAN PRESUMPTION. natural presumption. (16c) A deduction of one fact from another, based on common experience. [Cases: Criminal Law 53.J permissive presumption. (1827) A presumption that a trier of fact is free to accept or reject from a given set of facts. Also termed permissive inference. [Cases: Criminal Law (;:::::>306,324; Evidence (;:::::>53,87.] presumption juris et de jure. See conclusive presump­ tion. presumption ofa quorum. Parliamentary law. The pre­ sumption that a quorum, once established, is present until the chair or a member notices otherwise. presumption offact. A type of rebuttable presumption that may be, but as a matter oflaw need not be, drawn from another established fact or group of facts . - Also termed factual presumption. [Cases: Criminal LawC:::.:;,306.; Evidence (::::'53,87.] presumption ofgeneral application. A presumption that applies across the board to all legislation, as a result ofwhich lawmakers need not list each such pre­ sumption in all bills. [Cases: Criminal Law (:::;:'305; Evidence "One function of the word 'presumption' in the context of statutory interpretation is to state the result of this leg­ islative reliance (real o( assumed) on firmly established legal principles. There is a 'presumption' that mens rea is required in the case of statutory crimes, and a 'presump­ tion' that statutory powers must be exercised reasonably. These presumptions apply although there is no question of linguistic ambiguity in the statutory wording under con­ struction, and they may be described as 'presumptions of general application: At the level of interpretation, their function is the promotion of brevity on the part of the draftsman. Statutes make dreary enough reading as it is, and it would be ridiculous to insist in each instance upon an enumeration of the general principles taken for granted." Rupert Cross, Statutory Interpretation 142-43 (1976)_

presumption o/innocence. See PRESUMPTION OF INNO­ CENCE.

presumption ofintent. (18c) A permissive presumption that a criminal defendant who intended to commit an act did so. [Cases: Criminal Law presumption a/law. (16c) A legal assumption that a court is required to make if certain facts are estab­ lished and no contradictory evidence is produced . - Also termed legal presumption; artificial presumption; praesumptio juris; pseudopresumption of law. [Cases: Criminal Law C:>305; Evidence C':::' 86.] presumption of maternity. See PRESUMPTION OF MATERNITY.

presumption ofnatural and probable consequences. See PRESUMPTION OF NATURAL AND PROBABLE CON­ SEQUENCES.

presumption ofpaternity. See PRESUMPTION OF PATER­ NITY.

presumption ofsurvivorship. See PRESUMPTION

OF

SURVIVORSHIP.

presumption of validity. See

PRESUMPTIONO OF

VALIDITY.

prima jacie presumption. See rebuttable presump­ tion. procedural presumption. A presumption that may be rebutted by credible evidence. [Cases: Criminal Law C:>305; Evidence (;::::=-53.] pseudopresumption oflaw. See presumption oflaw. rebuttable presumption. (1852) An inference drawn from certain facts that establish a prima facie case, which may be overcome by the introduction of contrary evidence. - Also termed prima faCie pre­ sumption; disputable presumption; conditional presumption; praesumptio juris. Cf. conclusive pre­ Evidence sumption. [Cases: Criminal Law C~89.]

statutory presumption. (1819) A rebuttable or conclu­ sive presumption that is created by statute. [Cases: Criminal Law C':::' 305; Evidence C':::'53.] Thayer presumption. See THAYER PRESUMPTION. presumption of death. (18c) A presumption that arises on the unexpected disappearance and continued absence of a person for an extended period, commonly seven years. [Cases: Damages C':::'2.] presumption-of-fertility rule. See FERTILE-OCTOGE­ NARIAN RULE.

presumption-of-identity rule. The common-law rule that unless there is a specific, applicable statute in another state, a court will presume that the common law has developed elsewhere identically with how it has developed in the court's own state, so that the court may apply its own state's law. _ Today this rule applies primarily in Georgia. See Shorewood Packaging Corp. v. Commercial Union Ins., 865 F. Supp. 1577 (N.D. Ga. 1994). [Cases: Criminal Law (::::> 320; Evidence 80.] presumption of innocence. (18c) Criminal law. The fun­ damental principle that a person may not be convicted of a crime unless the government proves guilt beyond a reasonable doubt, without any burden placed on the

accused to prove innocence. [Cases: Criminal Law (;::::=­ 308; Evidence (;::::=-60.] presumption oflegitimacy. See PRESUMPTION OF PATER­ NITY.

presumption of maternity. Family law. The presumption that the woman who has given birth to a child is both the genetic mother and the legal mother ofthe child. ­ Also termed maternity presumption. Cf. PRESUMPTION OF PATERNITY.

presumption of natural and probable consequences. (1980) Criminal law. The presumption that mens rea may be derived from proof ofthe defendant's conduct. [Cases: Criminal LawC':::"312.] presumption of paternity. (1829) Family law. The pre­ sumption that the father of a child is the man who (1) is married to the child's mother when the child was conceived or born (even though the marriage may have been invalid), (2) married the mother after the child's birth and agreed either to have his name on the birth certificate or to support the child, or (3) welcomed the child into his home and later held out the child as his own. Also termed paternity presumption; presump­ tion oflegitimacy; legitimacy presumption. See presumed father under FATHER. [Cases: Children Out-of-Wedlock C='3.] presumption of survivorship. (1844) The presumption that one of two or more victims of a common disaster survived the others, based on the supposed survivor's youth, good health, or other reason rendering survivor­ ship likely. [Cases: Death presumption of validity. Patents. The doctrine that the holder of a patent is entitled to a statutory presump­ tion that the patent is valid and that the burden is on a challenger to prove invalidity. See BORN VALID. [Cases: Patents C:> 112.1.1 presumptive (pri-zamp-tiv), adj. (15c) 1. Giving reason­ able grounds for belief or presumption. 2. Based on a presumption. [Cases: Criminal Law (;::::=-305.1; Evidence (:::::53.] presumptively, adv. presumptive authority. See implied authority under AUTHORITY (1).

presumptive damages. See punitive damages under DAMAGES.

presumptive death. See DEATH. presumptive evidence. See EVIDENCE. presumptive heir. See heir presumptive under HEIR. presumptive notice. See implied notice under NOTICE. presumptive proof. See conditional proof under PROOF. presumptive sentence. See SENTENCE. presumptive sentencing. See SENTENCING. presumptive taker. See TAKER. presumptive title. See TITLE (2). presumptive trust. See resulting trust under TRUST. pret a usage. Civil law. A gratuitous loan for use.

1307

pretax, adj. Existing or occurring before the assessment or deduction of taxes <pretax income>. [Cases: Internal Revenue (;=3110; Taxation (;=3446.] pretax earnings. See EARNINGS. prete-nom (pret-nohm). [French] One who lends his name. pretensive joinder. See JOINDER. preterlegal (pree-t~r-Iee-gal), adj. Rare. Beyond the range of what is legal; not according to law <preterle­ gal customs>. pretermission (pree-tdr-mish-~n). (lSc) 1. The condition of one who is pretermitted, as an heir of a testator. 2. The act of omitting an heir from a will. [Cases: Descent and Distribution (;=47.] pretermission statute. See PRETERMITTED-HEIR STATUTE.

pretermit (pree-tar-mit), vb. (I5c) 1. To ignore or dis­ regard purposely . 2. To neglect, overlook, or omit acciden­ tally . ­ Although in ordinary usage sense 1 prevails, in legal contexts (esp. involving heirs) sense 2 is usual. [Cases: Descent and Distribution (;=47.] pretermitted child. See pretermitted heir under HEIR. pretermitted defense. See DEFENSE (1). pretermitted heir. See HEIR. pretermitted-heir statute. (1955) A state law that, under certain circumstances, grants an omitted heir the right to inherit a share of the testator's estate, usu. by treating the heir as though the testator had died intestate. ­ Most states have a pretermitted-heir statute, under which an omitted child or spouse receives the same share of the estate as if the testator had died intestate, unless the omission was intentional. The majority rule, and that found in the Uniform Probate Code, is that only afterborn children that is, children born receive protection as after th~ execution of a will pretermitted heirs. Under that circumstance, an infer­ ence arises that their omission was inadvertent rather than purposeful. - Also termed pretermission statute. [Cases: Descent and Distribution (;=47.] pretermitted spouse. See pretermitted heir under HEIR.

pretext (pree-tekst), n. (16c) A false or weak reason or motive advanced to hide the actual or strong reason or motive. [Cases: Civil Rights (;= 1033(1), 1137.] pretextual (pree-teks-choo-al), adj. pretextual arrest. See ARREST. pretextus (pree-teks-t"s). [Latin] A pretext. pretium (pree-shee-am). [Latin) Price; value; worth. pretium affectionis (pree-shee-am ,,-fek-shee-oh-nis). An enhanced value placed on a thing by the fancy of its owner, growing out of an attachment for the specific article and its associations; sentimental value.

prevention doctrine

- This value is not taken as a basis for measuring damages. pretium periculi (pree-shee-"m pa-rik-ya-lr). The price of the risk, such as the premium paid on an insur­ ance policy. pretorial court (pri-tor-ee-"l). See COURT. pretrial conference. (1938) An informal meeting at which opposing attorneys confer, usu. with the judge, to work toward the disposition of the case by discuss­ ing matters of evidence and narrowing the issues that will be tried. See Fed. R. Civ. P. 16; Fed. R. Crim. P. 17.1. - The conference takes place shortly before trial and ordinarily results in a pretrial order. - Often short­ ened to pretrial. - Also termed pretrial hearing. [Cases: Federal Civil Procedure (;= 1921; Pretrial Procedure (;=741.] pretrial detention. See DETENTION. pretrial discovery. See DISCOVERY. pretrial diversion. See DIVERSION PROGRAM (1). pretrial hearing. See PRETRIAL CONFERENCE. pretrial intervention. 1. DIVERSION PROGRAM (1). 2. See deferred judgment under JUDGMENT. pretrial investigation. Military law. An investigation to decide whether a case should be recommended for forwarding to a general court-martial. [Cases: Military Justice (;=921.) pretrial order. (1939) A court order setting out the claims and defenses to be tried, the stipulations of the parties, and the case's procedural rules, as agreed to by the parties or mandated by the court at a pretrial con­ ference. See Fed. R. Civ. P. 16(e). - In federal court, a pretrial order supersedes the pleadings. [Cases: Federal Civil Procedure C=, 1935; Pretrial Procedure (;=747.) prevail, vb. (17c) 1. To obtain the relief sought in an action; to win a lawsuit . 2. To be commonly accepted or pre­ dominant 168,303(4).] preventive custody. See CUSTODY (1). preventive detention. See DETENTION. preventive injunction. See INJUNCTION. preventive justice. See JUSTICE (1). preventive law. A practice oflaw that seeks to minimize a client's risk oflitigation or secure more certainty with regard to the client's legal rights and duties. - Empha­ sizing planning, counseling, and the nonadversarial resolution of disputes, preventive law focuses on the lawyer's role as adviser and negotiator. Also termed (less correctly) preventative law. preventive punishment. See PUNISHMENT. previously taxed income. See INCOME. previous notice. See NOTICE (6). previous question. See CLOSE DEBATE. price. The amount ofmoney or other consideration asked for or given in exchange for something else; the cost at which something is bought or sold. [Cases: Contracts (::::>229(1); Sales C=:) 74.1.] agreed price. The price for a sale, esp. ofgoods, arrived at by mutual agreement. Cf. open price. [Cases: Sales (::::>75.J arm's-length price. The price at which two unre­ lated, unaffiliated, and nondesperate parties would freely agree to do business. See arm's-length trans­ action under TRANSACTloN;fair market value under VALUE. asked price. The lowest price at which a seller is willing to sell a security at a given time. See SPREAD (2). asking price. Ihe price at which a seller lists property for sale, often implying a Willingness to sell for less. ­ Also termed ask price; offering price. at-the-market price. A retail price that store owners in the same vicinity generally charge. bid price. The highest price that a prospective buyer is willing to pay for a security at a given time. See SPREAD (2). call price. 1. The price at which a bond may be retired before its maturity. [Cases: Corporations C:::;468.1.] 2. See strike price. ceiling price. 1. The highest price at which a buyer is willing to buy. 2. The highest price allowed by a gov­ ernment agency or by some other regulatory institu­ tion. [Cases: War and National Emergency (::::> 108.] closing price. The price of a security at the end of a given trading day. - Also termed close. exercise price. See strike price. ex-works price. The price of goods as they leave the factory. See EX WORKS. fixed price. A price that is agreed upon by a wholesaler and a retailer for the later sale or resale of an item. _

1308

Agreements to fix prices are generally prohibited by state and federal statutes. floor price. The lowest price at which a seller is willing to sell. liquidating price. See redemption price. liquidation price. A price that is paid for property sold to liquidate a debt. - Liquidation price is usu. below market price. - Also termed liquidation value. list price. A published or advertised price of goods; retail price. market price. The prevailing price at which something is sold in a specific market. See fair market value under VALUE (2). mean trading price. Securities. The average of the daily trading price of a security determined at the close of the market each day during a 90-day period. net price. The price ofsomething, after deducting cash discounts. offering price. See asking price. open price. The price for a sale, esp. of goods, that has not been settled at the time ofa sale's conclusion. UCC § 2-305. Cf. agreed price. [Cases: Sales (::::>78.] predatory price. See PREDATORY PRICING.

put price. See strike price.

redemption price. 1. The price of a bond that has not

reached maturity, purchased at the issuer's option. 2. The price of shares when a mutual-fund shareholder sells shares back to the fund. - Also termed liqui­ dating price; repurchase price. [Cases: Corporations (::::>468.1.] reserve price. In an auction, the amount that a seller of goods stipulates as the lowest acceptable offer. - The reserve price mayor may not be announced. See WITH RESERVE; WITHOUT RESERVE. sales price. The total amount for which property is sold, often including the costs of any services that are a part of the sale. - Under sales-tax statutes, the amount is typically valued in money even if the value is not received in money. Also termed selling price. spot price. The amount for which a commodity is sold in a spot market. strike price. Securities. The price for which a security will be bought or sold under an option contract if the option is exercised. - Also termed striking price; exercise price; call price; put price. See OPTION. subscription price. See SUBSCRIPTION PRICE. suggested retail price. The sales price recommended to a retailer by a manufacturer of the product. support price. A minimum price set by the federal government for a particular agricultural commod­ ity. [Cases: Agriculture (::::>3.5.J target price. A price set by the federal government for particular agricultural commodities. - Ifthe market price falls below the target price, farmers receive a

subsidy from the government for the difference. [Cases: Agriculture (;::::>3.5.] trade price. The price at which a manufacturer or wholesaler sells to others in the same business or industry. transfer price. The price charged by one segment of an organization for a product or service supplied to another segment of the same organization; esp., the charge assigned to an exchange of goods or services between a corporation's organizational units. unit price. A price of a food product expressed in a well-known measure such as ounces or pounds. upset price. The lowest amount that a seller is willing to accept for property or goods sold at auction. [Cases: Auctions and Auctioneers wholesale price. The price that a retailer pays for goods purchased (usu. in bulk) from a wholesaler for resale to consumers at a higher price. price amendment. Securities. A change in a registration statement, prospectus, or prospectus supplement affect­ ing the offering price, the underwriting and selling dis­ counts or commissions, the amount of proceeds, the conversion rates, the call prices, or some other matter relating to the offering price. price!cost analysis. A technique of determining, for anti­ trust purposes, whether predatory pricing has occurred by examining the relationship between a defendant's prices and either its average variable cost or its average total cost. price discrimination. (1915) The practice of offering identical or similar goods to different buyers at differ­ ent prices when the costs of producing the goods are the same.• Price discrimination can violate antitrust laws if it reduces competition. It may be either direct, as when a seller charges different prices to different buyers, or indirect, as when a seller offers special con­ cessions (such as favorable credit terms) to some but not all buyers. [Cases; Antitrust and Trade Regulation (;::::>,839.J persistent price discrimination. A monopolist's sys­ tematic policy of obtaining different rates of return from different sales groupings. price-earnings ratio. The ratio between a stock's current share price and the corporation's earnings per share for the last year.• Some investors avoid stocks with high price-earnings ratios because those stocks may be overpriced. - Abbr. PIE ratio. Cf. earnings yield under YIELD. price-erosion theory. Patents. A theory oflost-profits remedy that measures the difference between what an item could have sold for with patent protection and what it actually sold for while having to compete against an infringing item. [Cases: Patents (;::::>318(3).] price expectancy. See EXHIBITION VALUE. price-fixing. (l889) The artificial setting or maintenance of prices at a certain level, contrary to the workings of the free market. • Price-fixing is usu. illegal per se i

under antitrust law. See FIX (3). [Cases: Antitrust and Trade Regulation (;::::>821.] "Price-fixing agreements mayor may not be aimed at complete elimination of price competition. The group making those agreements mayor may not have the power to control the market. But the fact that the group cannot control the market prices does not necessarily mean that the agreement as to prices has no utility to the members of the combination. The effectiveness of price-fixing agree­ ments is dependent on many factors, such as competitive tactics, pOSition in the industry, the formula underlying price policies. Whatever economic justification particular price-fixing agreements may be thought to have, the law does not permit an inquiry into their reasonableness. They are all banned because of their actual or potential threat to the central nervous system of the economy." United States v. Socony-Vawum Oil Co., 310 U.S. 150,225-26 n.59, 60 5.Ct. 811, 845 n.59 (1940).

horizontal price-fixing. (1935) Price-fixing among competitors on the same level, such as retailers throughout an industry. [Cases: Antitrust and Trade Regulation (;;::;822.] vertical price-fixing. (1936) Price-fixing among parties in the same chain of distribution, such as manufac­ turers and retailers attempting to control an item's resale price. [Cases: Antitrust and Trade Regulation C:>821.] price index. An index of average prices as a percentage of the average prevailing at some other time (such as a base year). See CONSUMER PRICE INDEX; PRODUCER PRICE INDEX.

price leadership. (1942) A market condition in which an industry leader establishes a price that others in the field adopt as their own .• Price leadership alone does not violate antitrust laws without other evidence of an intent to create a monopoly. price-level-adjusted mortgage. See MORTGAGE. price memorandum. Securities. A document created by an underwriter to explain how securities are priced for a public offering and, typically, to show estimates and appraisals that are not allowed as part of the offering documents. price-renegotiation clause. Oil 6- gas. A provision in a gas contract allowing for price renegotiation from time to time or upon election of one of the parties. price squeeze. Antitrust. Discriminatory pricing prac­ ticed by a manufacturer or distributor who also supplies materials or products to a competitor, and charges a high wholesale price in an attempt to reduce or elimi­ nate a competitor's ability to make a retail profit. [Cases: Antitrust and Trade Regulation (;::::>8l1.] price support. (1927) The artificial maintenance of prices (as of a particular commodity) at a certain level, esp. by governmental action (as by subsidy). [Cases; Agri­ culture (;::::>3.5.] price war. (1895) A period of sustained or repeated price-cutting in an industry (esp. among retailers), deSigned to undersell competitors or force them out ofbusiness. priest-penitent privilege. See PRIVILEGE (3).

primae impressionis (pn-mee im-pres[b)-ee-oh-nis). [Law Latin) Of the first impression. See case offirst impression under CASE. primae preces. See PRECES PRIMARIAE. prima facie (pn-ma fay-sha orfay-shee), adv. [Latin] (l5c) At first sight; on first appearance but subject to further is prima facie evidence or information . [Cases: Evidence prima fade, adj. (18c) Sufficient to establish a fact or raise a presumption unless disproved or rebutted . prima fade case. (1805) I. The establishment of a legally required rebuttable presumption. [Cases: Evidence (;::=, 53,85.) 2. A party's production of enough evidence to allow the fact-trier to infer the fact at issue and rule in the party's favor. [Cases: Evidence (;;:)584(1).) prima fade evidence. See EVIDENCE. prima fade presumption. See rebuttable presumption under PRES{;MPTION. prima fade privilege. See qualified immunity under IMMlJNITY (1). prima fade tort. See TORT. primage (pn-mij). See HAT MONEY. primary, n. See primary election under ELECTION (3). primary activity. Labor law. Concerted action (such as a strike or picketing) directed against an employer with which a union has a dispute. Cf. SECONDARY ACTIVITY.

primary agent. See AGENT (2). primary allegation. See ALLEGATION. primary amendment. See AMENDMENT (3). primary assumption of the risk. See ASSUMPTION OF THE RISK.

primary authority. See AUTHORITY (4). primary beneficiary. See BENEFICIARY. primary boycott. See BOYCOTT. primary caregiver. Family law. 1. The parent who has had the greatest responsibility for the daily care and rearing of a child. See TENDER-YEARS DOCTRINE; PRI­ MARY-CAREGIVER DOCTRINE. [Cases: Child Custody G---= 44, 459.] 2. The person (induding a nonparent) who has had the greatest responsibility for the daily care and rearing of a child. Also termed primary caretaker. primary-caregiver doctrine. Family law. 1he presump­ tion that, in a custody dispute, the parent who is a child's main caregiver will be the child's custodian, assuming that he or she is a fit parent. • This doctrine includes the quality and the quantity of care that a parent gives a child - but excludes supervisory care by others while the child is in the parent's custody. Under this doctrine, courts sometimes divide children into three age groups: those under the age of 6, those 6 to 14, and those 14 and older. For children under the age of 6, an absolute presumption exists in favor of the primary caretaker

as custodian. For those 6 to 14, the trial court may hear the child's preference on the record but without the parents being present. For those 14 and older, the child may be allowed to choose which parent will be the custodian, assuming that both parents are fit. Also termed primary-caretaker doctrine; primary-caregiver presumption; primary-caretaker presumption; primary­ caregiver preference. Cf. MATERN AL- PREFERENCE PRE­ SUMPTION; TENDER-YEARS DOCTRINE. [Cases: Child Custody (;::='44,459.] primary caretaker. See PRIMARY CAREGIVER. primary cause. See proximate cause under CAUSE (1). primary committee. Bankruptcy. A group of creditors organized to help the debtor draw up a reorganization plan. [Cases: BankruptcyC:~)3024.] primary conveyance. See CONVEYANCE. primary devise. See DEVISE. primary domiciliary parent. See PARENT. primary-duty doctrine. Maritime law. The principle that a seaman cannot recover damages if the injury arose from an unseaworthy condition created by the seaman's breach of duty. [Cases: Seamen (;::=,29(4).] primary election. See ELECTION (3). primary evidence. See best evidence under EVIDENCE. primary fact. See FACT. primary insurance. See INSURANCE. primary insured. See INSURED. primary insurer. See INSURER. primary jurisdiction. See JURISDICTION. primary-jurisdiction doctrine. A judicial doctrine whereby a court tends to favor allowing an agency an initial opportunity to decide an issue in a case in which the court and the agency have concurrent jurisdiction. See primary jurisdiction under JURISDICTION. [Cases: Administrative Law and Procedure (;::=,228.1.] primary lease. See HEADLEASE. primary liability. See LIABILITY. primary-line competition. See horizontal competition under COMPETITION. primary-line injury. Antitrust. Under the price-dis­ crimination provisions of the Robinson-Patman Act, the practice of charging below-cost, predatory prices in an attempt to eliminate the seller's competition in the market. 15 USCA § 13(a).• A primary-line injury, which hinders or seeks to hinder competition among the seller's competitors, is distinguishable from a sec­ ondary-line injury, which refers to discriminatory pricing that hinders or seeks to hinder competition among the seller's customers, by favoring one customer over another in the prices the seller charges. Cf. SEC­ ONDARY-LINE INJURY.

"liggett contends that Brown & Williamson's discriminatory volume rebates to wholesalers threatened substantial com­ petitive injury by furthering a predatory pricing scheme designed to purge competition from the economy segment

primogenitureship

1311 of the cigarette market. This type of injury, which harms direct competitors of the discriminating seller, is known as a primary-line injury." Brooke Group Ltd. v. Brown & Wil­ liamson Tobacco Corp., 509 u.s. 209, 220, 113 S.Ct. 2578, 2586 (1993).

primary market. See MARKET. primary mortgage market. See MORTGAGE MARKET. primary obligation. See OBLIGATION. primary offering. See OFFERING. primary officer. See principal officer under (1).

OFFICER

primary plea. See primary allegation under ALLEGA­ TION.

primary powers. (1864) The chief powers given by a prin­ cipal to an agent to accomplish the agent's tasks. Cf. MEDIATE POWERS.

primary purpose or effect. Copyright. The main reason for or consequence of using a product, as a test for whether its sale amounts to contributory infringement. - The Supreme Court rejected the test in a landmark copyright case, but four justices said that ifthe primary purpose or effect of the product's sale or use infringes the copyrights of others, its manufacturer could be enjoined from selling the product or required to pay a reasonable royalty to the copyright owners. Sony Corp. ofAm. v. Universal City Studios, Inc., 464 U.S. 417,457-500, 104 S.Ct. 774, 796-818 (1984) (Blackmun, J., dissenting). Cf. COMMERCIALLY SIGNIFICANT NON­ INFRINGING USE.

primary receiver. See principal receiver under RECEIVER.

primary reserve ratio. See RESERVE RATIO. primary residential responsibility. See

RESIDENTIAL

RESPONSIBILITY.

primary right. See RIGHT. primary term. Oil & gas. The option period set by the habendum clause in an oil-and-gas lease during which the lessee has the right to search, develop, and produce from the property. _ The primary term should be long enough to allow the lessee to evaluate the property and make arrangements to drill. In practice, the primary term may extend for 24 hours or 25 years, depending on how much competition there is for leases in the area. See HABENDUM CLAUSE. Cf. SECONDARY TERM. [Cases: Mines and Minerals (;;:>73.5,78.1(9).] primate (prJ-mit). A chief ecclesiastic; an archbishop or bishop having jurisdiction over other bishops within a province. prime, n. See prime rate under INTEREST RATE. prime, vb. To take priority over <Watson's preferred mortgage primed Moriarty's lien>. prime contractor. See general contractor under TRACTOR.

prime cost. See COST (1).

CON­

prime lending rate. See prime rate under

INTEREST

RATE.

prime maker. See MAKER. prime minister. (often cap.) The chiefexecutive ofa par­ liamentary government; the head of a cabinet. - Abbr. PM.

primer (prim-Jr orprJ-mJr). [Law French] First; primary <primer seisin>. prime rate. See INTEREST RATE. primer election. A first choice; esp., the eldest copar­ cener's pick of land on division of the estate. See ELECTION.

primer fine (prim-;>r or prJ-mJr fm). [Latin] Hist. A fee payable to the Crown on the suing out of a writ of praecipe to begin a conveyance by fine. See FINE (1). ­ Also termed praefine. primer seisin. See SEISIN. prime serjeant. See premier serjeant under SERJEANT­ AT-LAW.

prime tenant. See TENANT. primitiae (pri-mish-ee-ee). [fro Latin primus "first"] See FIRST FRl7ITS (2). - primitial (pri-mish-;>l), adj. primitive obligation. See OBLIGATION. primo fronte (prJ-moh fron-tee). [Latin] Hist. At first Sight. primogeniture (pn-mJ-jen-J-chJr). (I5c) 1. The state of being the firstborn child among siblings. 2. The common-law right of the firstborn son to inherit his ancestor's estate, usu. to the exclusion of younger siblings. - Also termed (in sense 2) primogenitureship. See BOROUGH ENGLISH. [Cases: Descent and Distribu­ tion "If by primogeniture we only mean 'that the male issue shall be admitted before the female, and that, when there are two or more males in equal degrees, the eldest only shall inherit, but the females "all together'" [Blackstone's definitionl. then ancient records may indeed contain but scant references. But primogeniture embraces all the cases of single inheritance, and may indeed be defined as the prerogative enjoyed by an eldest son or occasionally an eldest daughter, through law or custom, to succeed to their ancestor's inheritance in preference to younger children. Nay, we might even make it more comprehensive, extend­ ing it to all cases of single succession depending upon priority in birth." Radhabinod Pal, The History of the Law of Primogeniture 11 (1929). "We might note here, parenthetically, that the English pref­ that is, the system erence for single-file male descent of descent known as primogeniture was never cordially received in this country. Our statutes of descent and distri­ bution uniformly provide for sons' and daughters' sharing the inheritance equally. Although this seems a fairer method than primogeniture, which was finally abolished in Britain with the 1925 reforms. the descent of property to an ever-expanding group of heirs can seriously compli­ cate the clearing of old titles." Thomas F. Bergin & Paul G. Haskell, Preface to Estates in Land and Future Interests 9 (2d ed_ 1984).

primogenitnreship. See PRIMOGENITURE (2).

1312

prim%co

primo loco (prJ-moh loh-koh). [Latin] Hist. In the first place. primo venienti (prJ-moh ven-ee-en-tr). [Latin] To the one first coming .• This refers to the former practice by estate executors of paying debts as they were presented without regard to whether the estate had enough assets to pay all the debts. primum decretum (prI-m;lm di-kree-t;lm). [Latin "first decree"] 1. Hist. Eccles. law. A preliminary decree granted in favor of the plaintiff on the nonappearance of a defendant. 2. Maritime law. A provisional decree. princeps (prin-seps), n. [Latin] Roman law. A leading person, esp. the emperor. principal, adj. Chief; primary; most important. principal, n. (14c) 1. One who authorizes another to act on his or her behalf as an agent. Cf. AGENT (2). [Cases: Principal and Agent 1, 130.] apparent principal. A person who, by outward mani­ festations, has made it reasonably appear to a third person that another is authorized to act as the person's agent. [Cases: Principal and Agent 99.] disclosed principal. (1858) A principal whose identity is revealed by the agent to a third party.• A disclosed principal is always liable on a contract entered into by the agent with the principal's authority, but the agent is usu. not liable. [Cases: Principal and Agent 92-137.] partially disclosed principal. (1934) A principal whose existence - but not actual identity - is revealed by the agent to a third party. [Cases: Principal and Agent 138-146.] undisclosed principal. (1835) A principal whose identity is kept secret by the agent; a principal for whom the other party has no notice that the agent is acting.• An undisclosed principal and the agent are both liable on a contract entered into by the agent with the principal's authority. [Cases: Principal and Agent 138-146.] 2. One who commits or participates in a crime. Cf. ACCESSORY (2); ACCOMPLICE (2). [Cases: Criminal Law 59-67.] "The student should notice that in criminal law the word 'principal' suggests the very converse of the idea which it represents in mercantile law. In the former, as we have seen, an accessory proposes an act, and the 'principal' carries it out. But in the law of contract, and in that of tort, the 'principal' only authorizes an act, and the 'agent' carries it out. Where the same transaction is both a tort and a crime, this double use of the word may cause confusion. For example, if, by an innkeeper's directions, his chamber· maid steals jewels out of a guest's portmanteau, the maid is the 'principal' in a crime, wherein her master is an acces· sory before the fact; whilst she is also the agent in a tort, wherein her master is the 'principal'." J.w. Cecil Turner, Kenny's Outlines of Criminal Law 89 (16th ed. 1952).

principal in the first degree. (18c) The perpetrator of a crime. - Also termed first-degree principal. [Cases: Criminal Law 61, 78.] "By a principal in the first degree, we mean the actual offender - the man in whose guilty mind lay the latest

blamable mental cause of the criminal act. Almost always, of course, he will be the man by whom this act itself was done. But occasionally this will not be so; for the felony may have been committed by the hand of an innocent agent who, having no blamable intentions in what he did, incurred no criminal liability by doing it. In such a case the man who instigates this agent is the real offender; his was the last mens rea that preceded the crime, though it did not cause it immediately but mediately." J.w. Cecil Turner, Kenny's Outlines of Criminal Law 85-86 (16th ed. 1952).

principal in the second degree. (18c) One who helped the perpetrator at the time of the crime. - Also termed accessory at the fact; second-degree principal. See ABETTOR. [Cases: Criminal Law 63, 78.] ''The distinction between principals in the first and second degrees is a distinction without a difference except in those rare instances in which some unusual statute has provided a different penalty for one of these than for the other. A principal in the first degree is the immediate perpetrator of the crime while a principal in the second degree is one who did not commit the crime with his own hands but was present and abetting the principal. It may be added, in the words of Mr.Justice Miller, that one may perpetrate a crime, not only with his own hands, but 'through the agency of mechanical or chemical means, as by instruments, poison or powder, or by an animal, child, or other innocent agent' acting under his direction." Rollin M. Perkins & Ronald N. Boyce, Criminal Law 736 (3d ed. 1982) (quoting Beausoliel v. United States, 107 F.2d 292, 297 (D.C. Cir. 1939)).

3. One who has primary responsibility on an obligation, as opposed to a surety or indorser. 4. The corpus of an estate or trust. [Cases: Trusts 1.]5. The amount of a debt, investment, or other fund, not including interest, earnings, or profits. principal action. See main demand under DEMAND (1). principal challenge. See CHALLENGE (2). principal contract. See CONTRACT. principal covenant. See COVENANT (1). principal creditor. See CREDITOR. principal demand. See main demand under DEMAND (1).

principal fact. 1. See fact in issue under FACT. 2. See ultimate fact under FACT. principal in the first degree. See PRINCIPAL (2). principal in the second degree. See PRINCIPAL (2). principalis (prin-s;l-pay-lis), adj. [Latin] Principal, as in principalis debitor ("principal debtor"). principal motion. See main motion under MOTION (2). principal obligation. See primary obligation (2) under OBLIGATION.

principal obligor. See OBLIGOR. principal officer. See OFFICER (1). principal place of business. See PLACE OF BUSINESS. principal receiver. See RECEIVER. Principal Register. Trademarks. The list of distinctive marks approved for federal trademark registration. • The register is maintained by the U.S. Patent and Trademark Office. Only marks that are strong, dis­ tinctive, and famous are listed. 15 USCA § 1052. Cf.

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SUPPLEMENTAL REGISTER. [Cases: Trademarks 1245.] principal right. See RIGHT. principle, n. A basic rule, law, or doctrine. principle of finality. See FINALITY DOCTRINE. principle oflegality. See LEGALITY (2). principle of nonintervention. See NONINTERVENTION. principle of retribution. See LEX TALIONIS. print. 1. Copyright. The impression made in a material by a die, mold, stamp, or the like; a distinctive stamped or printed mark or design. 2. FINGERPRINT. printed-matter doctrine. Patents. The rule that printed matter may not be patented unless it is a physical part of a patentable invention .• For example, the doctrine has been used to deny patents for systems of representing sheet music and for methods of compiling directories. But it cannot be used to deny a patent for computer software. [Cases: Patents G~5.] Printers Ink Statute. A model statute drafted in 1911 and adopted in a number of states making it a misde­ meanor to print an advertisement that contains a false or deceptive statement. prior, adj. (17c) 1. Preceding in time or order 90; Trademarks (;::;:> 1137) priority ofadoption. Trademarks. Priority in designing or creating a trademark .• Priority of adoption does not in itself confer the right to exclusive use ofa mark ifsomeone else was first to use it in commerce. - Also termed priority ofappropriation; priority ofinvention. Cf. priority ofuse. [Cases: Trademarks ::)4.J "Breach of prison by the offender himself, when commit­ ted for any cause, was felony at the common law: or even conspiring to break it. But this severity is mitigated by the statute de frangentibus prisonam, I Edw. II, which enacts that no person shall have judgment of life or member, for breaking prison, unless committed for some capital offence. So that to break prison, when lawfully committed for any treason or felony, remains still a felony as at the common law; and to break prison, when lawfully confined upon any other inferior charge, is still punishable as a high misdemeanor by fine and imprisonment." 4 William Blackstone, Commentaries on the Laws of England 130-31 (1769).

prison camp. (1864) A usu. minimum-security camp for the detention of trustworthy prisoners who are often employed on government projects. prisoner. 1. A person who is serving time in prison. 2. A person who has been apprehended by a law-enforce­ ment officer and is in custody, regardless of whether the person has yet been put in prison. Cf. CAPTIVE (1). "While breach of prison, or prison breach, means breaking out of or away from prison, it is important to have clearly in mind the meaning of the word 'prison.' If an officer arrests an offender and takes him to jail the layman does not think of the offender as being 'in prison' until he is safely behind locked doors, but no one hesitates to speak of him as a 'prisoner' from the moment of apprehension. He is a prisoner because he is 'in prison ... whether he were actually in the walls of a prison, or only in the stocks, or in the custody of any person who had lawfully arrested him ....., Rollin M. Perkins & Ronald N. Boyce, Criminal Law 566 (3d ed. 1982) (quoting 2 Hawk. P.c. ch. 18, § I (6th ed. 1788)).

prisoner at the bar. (16c) Archaic. An accused person who is on trial. prisoner of conscience. Human-rights law. A person who is imprisoned because of his or her beliefs, race, sex, ethnic origin, language, or religion. - The range of«beliefs" that fall within this definition is not settled but may include political ideologies and objections to military service, esp. in wartime. prisoner ofwar. A person, usu. a soldier, who is captured by or surrenders to the enemy in wartime. Also termed captive. Abbr. POW. [Cases: War and National Emergency C= 11.] prisoner's dilemma. A logic problem often used by law-and-ecol1omics scholars to illustrate the effect of cooperative behavior - involVing two prisoners who are being separately questioned about their participa­ tion in a crime: (1) ifboth confess, they will each receive a 5-year sentence; (2) if neither confesses, they will each receive a 3-year sentence; and (3) if one confesses but

1315

private international law

the other does not, the confessing prisoner will receive a I-year sentence while the silent prisoner will receive a lO-year sentence. See EXTERNALITY. Prison Litigation Reform Act. A federal statute designed to reduce the number offrivolous lawsuits and petitions filed by prisoners and to reduce the power of federal courts over state prison systems. 110 Stat. 1321-66­ 1321-77 (1996). prist (prist). [Law French] Hist. Ready. - In oral pleading, this term was used to express a joinder of issue. privacy. The condition or state ofbeing free from public attention to intrusion into or interference with one's acts or decisions. autonomy privacy. An individual's right to control his or her personal activities or intimate personal deci­ sions without outside interference, observation, or intrusion.• If the individual's interest in an activity or decision is fundamental, the state must show a com­ pe
ling public interest before the private interest can be overcome. If the individual's interest is acknowl­ edged to be less than fundamental or is disputed, then a court must apply a balancing test. Hill v. NCAA, 865 P.2d 633, 653, 654 (Cal. 1994). [Cases: Constitutional Law (;:::> 1210-1275.] informational privacy. Tort. A private person's right to choose to determine whether, how, and to what extent information about oneselfis communicated to others, esp. sensitive and confidential information. [Cases: Constitutional Law C~) 1227.] privacy, invasion of. See INVASION OF PRIVACY. privacy, right of. See RIGHT OF PRIVACY. privacy act. See PRIVACY LAW (1). Privacy Act of 1974. An act that regulates the govern­ ment's creation, collection, use, and dissemination of records that can identify an individual by name, as well as other personal information. 18 USCA § 552a. [Cases: Records (;:::>31.] privacy law. (1936) 1. A federal or state statute that protects a person's right to be left alone or that restricts public access to personal information such as tax returns and medical records. Also termed privacy act. [Cases: Records C=> 3L] 2. The area oflegal studies dealing with a person's right to be left alone and with restricting public access to personal information such as tax returns and medical records. privacy privilege. See PRIVILEGE (3). privata delicta (prr-vay-tJ di-lik-tJ). [Latin] Roman law. Private wrongs; torts. See DELICT. Cf. PUBLICA DELICTA.

privatae leges (prJ-vay-tee lee-jeez). [Law Latin] Scots law. Personal laws .• These were laws, such as a pardon, that affected a single individual, not a class of people. private, adj. (14c) 1. Relating or belonging to an individ­ ual, as opposed to the public or the government. 2. (Of a company) not having shares that are freely available on an open market. 3. Confidential; secret.

i

private act. See special statute under STATUTE. private action. See civil action under ACTION (4). private adoption. See ADOPTION. private agent. See AGENT (2). private annuity. See ANNUITY. private attorney. See ATTORNEY (1). private-attorney-general doctrine. The equitable prin­ ciple that allows the recovery of attorney's fees to a party who brings a lawsuit that benefits a significant number of people, requires private enforcement, and is important to society as a whole. [Cases: Costs 194.42; Federal Civil Procedure (;:::>2737.2.] private bank. See BANK. private benefit. Tax. The use of a tax-exempt organi­ zation's assets primarily to further the interests of a private individual or entity, rather than for a public interest. • Under most circumstances, this type of benefit is prohibited. See IRC (26 USCA) § 501(c)(3). Cf. private inurement under INUREMENT. qualitatively incidental private benefit. A permis­ sible private benefit arising from circumstances under which a benefit to the public cannot be achieved without necessarily also benefiting a private interest. quantitatively incidental private benefit. A permis­ sible private benefit that is a necessary but insubstan­ tial concomitant to a public benefit. private bill. See BILL (3). private boundary. See BOUNDARY. private brand. See BRAND. private carrier. See CARRIER. private contract. See CONTRACT. private corporation. See CORPORATION. private delict. See DELICT. private easement. See EASEMENT. privateer (pn-vJ-teer), n. 1. A vessel owned and operated by private persons, but authorized by a nation on certain conditions to damage the commerce of the enemy by acts of piracy. 2. A sailor on such a vessel. privateering, n. Int'llaw. The practice of arming pri­ vately owned merchant ships for the purpose ofattack­ ing enemy trading ships. _ Before the practice was outlawed, governments commissioned privateers by issuing letters of marque to their merchant fleets. Pri­ vateering was prohibited by the Declaration of Paris Concerning Naval Warfare of 1856, which has been observed by nearly all nations since that time. pri­ vateer, vb. private fact. See FACT. private foundation. See FOUNDATION. private grant. See GRANT. private injury. See personal injury (2) under INJl:RY. private international law. See INTERNATIONAL LAW.

private inurement

private inurement. See INUREMENT. private judging. (1979) A type of alternative dispute res­ olution whereby the parties hire a private individual to hear and decide a case. - This process may occur as a matter of contract between the parties or in connec­ tion with a statute authorizing such a process. Also termed rent-a-judging. "In contrast [to arbitration]. private judging is a less con· tractual, less privatized process. Party agreement, usually formed post-dispute, does send a case to private judging. And the parties have the freedom of contract to determine the time and place of trial, as well as the identity of the judge. Unlike arbitration, however, privately judged trials may ... be: (1) required to use the same rules of procedure and evidence used in ordinary litigation, (2) exposed to public view by court order, (3) adjudicated only by a former judge, and (4) subject to appeal in the same manner as othertrial verdicts. In sum, private judging is essentially an ordinary bench trial except that the parties select, and pay for, the judge," Stephen J, Ware, Alternative Dispute Resolution § 2.54, at 113 (2001).

private land grant. See LAND GRANT. private law. (18c) 1. The body oflaw dealing with private persons and their property and relationships. Cf. PUBtIC LAW (I). 2. See special law under LAW. private letter ruling. See LETTER RULING. private morality. See MORAtITY. private mortgage insurance. See mortgage insurance under INSURANCE. private necessity. See NECESSITY. private nonoperating foundation. See private founda­ tion under FOL'NDATION. private nuisance. See NUISANCE. private offering. See OFFERING. private operating foundation. See FOUNDATION. private person. See PERSON (I). private placement. L Family law. The placement of a child for adoption by a parent, lawyer, doctor, or private agency, rather than by a government agency. ­ At least eight states have prohibited private-placement adoptions. Also termed direct placement. [Cases: Adoption C=>6-7.8, 13, 16.] 2. Securities. See private offering under OFFERING. private-placement adoption. See private adoption under ADOPTION.

private power. See POWER (3). private prison. See PRISON. private property. See PROPERTY. private prosecution. See PROSECUTION. private prosecutor. See PROSECUTOR (2). private publication. See limited publication under PVB­ LICATION.

private reprimand. See REPRIMAND. private right. See RIGHT. private right-of-way. See EASEMENT. private river. See RIVER.

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private sale. See SALE. private school. See SCHOOL. private seal. See SEAL. private search. See SEARCH. private sector. (1930) The part of the economy or an industry that is free from direct governmental control. Cf. PUBLIC SECTOR. private servitude. See SERVITUDE (2). private signature. See SIGNATURE. private statute. See speCial statute under STATUTE. private stream. See STREAM. private treaty. See TREATY (3). private trust. See TRUST. private-use exception. Patents. An exception to the pub­ lic-use statutory bar, allowing the inventor to use the invention for personal benefit for more than one year without abandoning patent rights under the statutory bars. - Also termed prior-user right. [Cases: Patents C=>75.] private voluntary organization. See NONGOVERNMEN­ TAL ORGANIZATION.

private war. See WAR. private water. See WATER. private way. See WAY. private wharf. See WHARF. private wrong. See WRONG. private zoning. See ZONING. privation (pn-vay-sh,m). (15c) 1. The act oftaking away or withdrawing. 2. The condition of being deprived. privatization (pn-va-ta-zay-sh;m), n. (1942) The act or process of converting a business or industry from gov­ ernmental ownership or control to private enterprise. Cf. DENATIONALIZATION (2). privatize, vb. privatum (pn-vay-tam). [Latin] Private. - This term appeared in phrases such as jus privatum ("private law"). privies (priv-eez). See PRIVY. privigna (pn-vig-na), n. [Latin] Roman & civil law. A daughter of one's husband or wife by a previous marriage; a stepdaughter. privignus (pn-vig-n361.] judicial privilege. (1845) Defamation. l. The privilege protecting any statement made in the course of and with reference to a judicial proceeding by any judge, juror, party, witness, or advocate. 2. See litigation privilege. - Also termed courtroom privilege. [Cases: Libel and Slander C=38.] judicial-proceedings privilege. See litigation privi­ lege. legislative privilege. (1941) Defamation. The privilege protecting (1) any statement made in a legislature by one of its members, and (2) any paper published as part oflegislative business. - Also termed (in a par­ liamentary system) parliamentary privilege. [Cases: Libel and Slander C=~ 37.J litigation privilege. A privilege protecting the attor­ neys and parties in a lawsuit against tort claims based on certain acts done and statements made when related to the litigation .• The privilege is most often applied to defamation claims but may be extended to encompass other torts, such as invasion of privacy and disclosure oftrade secrets. The facts of each case determine whether the privilege applies and whether it is qualified or absolute. - Also termed judicial­ proceedings privilege; judicial privilege; defamation privilege. [Cases: Libel and Slander (...'-::>38.] official privilege. (1927) The privilege immunizing from a defamation lawsuit any statement made by one state officer to another in the course of official duty. [Cases: Libel and Slander C=39, 42.] parliamentary privilege. 1. See legislative privilege. 2. PRIVILEGE (5). privilege from arrest. (1840) An exemption from arrest, as that enjoyed by members of Congress during leg­ islative sessions. U.S. Const. art. I, § 6, cl. L [Cases: Arrest (;::::>60.J qualified privilege. (1865) A privilege that immunizes an actor from suit only when the privilege is properly exercised in the performance of a legal or moral duty. - Also termed conditional privilege. Cf. absolute privilege. [Cases: Libel and Slander C=41; Officers and Public Employees C= 114; Torts 121.) "Qualified privilege ... is an intermediate case between total absence of privilege and the presence of absolute privilege." R.F.V. Heuston, Salmond on the Law of Torts 165 (17th ed. 1977).

special privilege. (17c) 1. A privilege granted to a person or class of persons to the exclusion of others and in derogation of the common right. 2. See personal privi­ lege under PRIVILEGE (5). testimonial privilege. (1907) A right not to testify based on a claim of privilege; a privilege that overrides a witness's duty to disclose matters within the witness's knowledge, whether at trial or by deposition. [Cases: Witnesses (;::::297.) viatorial privilege (vI-a-tor-ee-al). (1904) A privi­ lege that overrides a person's duty to attend court in person and to testify. work-product privilege. See WORK-PRODUCT RULE. 2. An affirmative defense by which a defendant acknowledges at least part of the conduct complained ofbut asserts that the defendant's conduct was autho­ rized or sanctioned by law; esp., in tort law, a circum­ stance justifying or excusing an intentional tort. See 1USTIFICATION (2). Cf. IMMUNITY (2). [Cases: Torts 121.] 3. An evidentiary rule that gives a witness the option to not disclose the fact asked for, even though it might be relevant; the right to prevent disclosure of certain information in court, esp. when the informa­ tion was originally communicated in a profeSSional or confidential relationship.• Assertion of an evidentiary privilege can be overcome by proof that an otherwise privileged communication was made in the presence ofa third party to whom the privilege would not apply. [Cases: Privileged Communications and Confidential­ ity (.=:0 1, 17.J accountant-client privilege. (1956) The protection afforded to a client from an accountant's unauthor­ ized disclosure of materials submitted to or prepared by the accountant .• The privilege is not Widely rec­ ognized. [Cases: Privileged Communications and Confidentiality C=405.] antimarital-facts privilege. See marital privilege (2). attorney-client privilege. (1934) The client's right to refuse to disclose and to prevent any other person from disclosing confidential communications between the client and the attorney.• The privilege is not Widely recognized. Also termed lawyer-client privilege; client's privilege. [Cases: Privileged Com­ munications and Confidentiality C= 102.) 'There are a number of ways to organize the essential elements of the attorney-client privilege to provide for an orderly analysis. One of the most popular is Wigmore's schema: '(1) Where legal advice of any kind is sought (2) from a profeSSional legal adviser in his capacity as such, (3) the communications relating to that purpose (4) made in confidence (5) by the client (6) are at his instance perma­ nently protected (7) from disclosure by himself or by the legal adviser, (8) except the privilege be waived.' Though this organization has its virtues, there is some question as to whether it completely states the modern privilege." 24 Charles Alan Wright & Kenneth W. Graham Jr., Federal Practice and Procedure § 5473, at 103-04 (1986) (quoting 8 John Henry Wigmore, Evidence § 2292, at 554 Uohn T. McNaughton rev., 1961». "At the present time it seems most realistic to portray the attorney-client privilege as supported in part by its

privilege traditional utilitarian justification, and in part by the integral role it is perceived to play in the adversary system itself. Our system of litigation casts the lawyer in the role of fighter for the party whom he represents. A strong tra· dition of loyalty attaches to the relationship of attorney and client, and this tradition would be outraged by routine examination of the lawyer as to the client's confidential disclosures regarding professional business. To the extent that the evidentiary privilege, then, is integrally related to an entire code of professional conduct, it is futile to envision drastic curtailment of the privilege without sub­ stantial modification of the underlying ethical system to which the privilege is merely ancillary." John W. Strong. McCormick on Evidence § 87. at 121-22 (4th ed. 1992).

clergyman-penitent privilege. See priest-penitent privilege. client's privilege. See attorney-client privilege. doctor-patient privilege. (1954) The right to exclude from discovery and evidence in a legal proceeding any confidential communication that a patient makes to a physician for the purpose of diagnosis or treatment, unless the patient consents to the disclosure. - Also termed patient-physician privilege; physician-patient privilege; physician-client privilege. [Cases: Privileged Communications and Confidentiality . privy (priv-ee), n. pl. (15c) A person haVing a legal interest of privity in any action, matter, or property; a person who is in privity with another. - Traditionally, there were six types ofprivies: (1) privies in blood, such as an heir and an ancestor; (2) privies in representation, such as an executor and a testator or an administra­ tor and an intestate person; (3) privies in estate, such as grantor and grantee or lessor and lessee; (4) privies in respect to a contract the parties to a contract; (5) privies in respect ofestate and contract, such as a lessor and lessee where the lessee assigns an interest, but the contract between lessor and lessee continues because the lessor does not accept the assignee; and (6) privies in law, such as husband and wife. The term also appears in the context of litigation. In this sense, it includes someone who controls a lawsuit though not a party to it; someone whose interests are represented by a party to the lawsuit; and a successor in interest to anyone having a derivative claim. PI. privies. Privy Council. In Britain, the principal council of the sovereign, composed ofthe cabinet ministers and other persons chosen by royal appointment to serve as privy councillors. - The functions of the Privy Council are

probate

1321

now mostly ceremoniaL See JUDICIAL COMMITTEE OF THE PRIVY COUNCIL. Privy Councillor. A member of the Privy Council. Abbr. P.e. privy purse. English law. The income set apart for the sovereign's personal use. privy seal. 1. A seal used in making out grants or letters patent before they are passed under the great seal. 2. (cap.) LORD PRIVY SEAL. privy signet. Hist. The signet or seal used by the sover­ eign in making out grants and private letters. privy verdict. See VERDICT. prize. 1. Something ofvalue awarded in recognition of a person's achievement. 2. A vessel or cargo captured at sea or seized in port by the forces of a nation at war, and therefore liable to being condemned or appropriated as enemy property. [Cases: War and National Emergency C-'--::>28.] prize court. See COURT. prize fighting. Fighting for a reward or prize; esp., pro­ fessional boxing. [Cases: Public Amusement and Enter­ tainment (~27.] "Prize fighting ... was not looked upon with favor by the common law as was a friendly boxing match or wrestling match. On the other hand it was not punishable by the common law unless it was fought in a public place, or for some other reason constituted a breach of the peace." Rollin M. Perkins & Ronald N. Boyce, Criminal Law 480 (3d ed. 1982).

prize goods. See GOODS. prize law. The system of laws applicable to the capture of prize at sea, dealing with such matters as the rights of captors and the distribution of the proceeds. [Cases: War and National Emergency C=>28.] prize money. 1. A dividend from the proceeds of a captured vessel, paid to the captors. 2. Money offered asan award. PRM. abbr. BUREAU OF POPULATION, REFUGEES, AND MIGRATION. PRO. abbr. PEER-REVIEW ORGANIZATION. pro (proh). [Latin] (15c) For. proamita (proh-am-;l-t;l). [Latin] Roman & civil law. A great-great aunt; the sister of one's great-grandfather. proamita magna (proh-am-;l-t;l mag-m). [Latin] Civil law. A great-great-great-aunt. proavia (proh-ay-vee-;l). [Latin] Roman & civil law. A great-grandmother. proavunculus (proh-;l-v<Jngk-Y;l-I;ls). [Latin] Civil law. A great-grandmother's brother. proavus. Civil law. A great-grandfather. probabilis causa (pr;l-bay-ba-lis kaw-zd). [Latin] Probable cause. probabilis causa Wigandi (pfa-bab-a-lis kaw-zd !it­ i-gan-dI). [Law Latin] Scots law. A probable cause of

action.• A person applying for legal aid has to show a reasonable basis for the proposed legal action. probable cause. (16c) 1. Criminal law. A reasonable ground to suspect that a person has committed or is committing a crime or that a place contains specific items connected with a crime.• Under the Fourth Amendment, probable cause - which amounts to more than a bare suspicion but less than evidence that would justify a conviction must be shown before an arrest warrant or search warrant may be issued. Also termed reasonable cause; sufficient cause; reasonable grounds; reasonable excuse Cf. reasonable suspicion under SUSPICION. [Cases: Arrest C=>63.4(2).] "Probable cause may not be established simply by showing that the officer who made the challenged arrest or search subjectively believed he had grounds for his action. As emphasized in Beck v. Ohio [379 U.S. 89, 85 S.Ct. 223 (1964)J: 'If subjective good faith alone were the test, the protection of the Fourth Amendment would evaporate, and the people would be "secure in their persons, houses, papers, and effects" only in the discretion of the police.' The probable cause test, then, is an objective one; for there to be probable cause, the facts must be such as would warrant a belief by a reasonable man." Wayne R. LaFave & Jerold H. Israel. Criminal Procedure § 3.3, at 140 (2d ed.1992).

2. Torts. A reasonable belief in the existence of facts on which a claim is based and in the legal validity of the claim itself.• In this sense, probable cause is usu. assessed as of the time when the claimant brings the claim (as by filing suit). 3. A reasonable basis to support issuance of an administrative warrant based on either (1) specific evidence of an existing violation of administrative rules, or (2) evidence showing that a particular business meets the legislative or administra­ tive standards permitting an inspection ofthe business premises. [Cases: Searches and Seizures ~ 129.] probable-cause hearing. 1. See PRELIMINARY HEARING. 2. See shelter hearing under HEARING. probable consequence. (16c) An effect or result that is more likely than not to follow its supposed cause. [Cases: Negligence C:","> 386.] probable-desistance test. (1974) Criminal law. A common-law test for the crime of attempt, focusing on whether the defendant has exhibited dangerous behavior indicating a likelihood of committing the crime. See ATTEMPT (2). probable evidence. See presumptive evidence under EVIDENCE. probandum (proh-ban-dam), n. A fact to be proved. See fact in issue under FACT. PI. probanda. probata (proh-bay-t;l). [Latin] pl. PROBATUM. probate (proh-bayt), n. (ISc) 1. The judicial procedure by which a testamentary document is established to be a valid will; the proving ofa will to the satisfaction ofthe court. • Unless set aside, the probate of a will is con­ clusive upon the parties to the proceedings (and others who had notice of them) on all questions of testamen­ tary capacity, the absence of fraud or undue influence, and due execution of the will. But probate does not

probate preclude inquiry into the validity of the will's provi­ sions or on their proper construction or legal effect. ­ Also termed proofofwill. [Cases: Wills C=>203-434.] independent probate. See informal probate. informal probate. (1974) Probate designed to operate with minimal input and supervision of the probate court. • Most modern probate codes encourage this type of administration, with an independent personal representative. - Also termed independent probate. Cf. independent executor under EXECUTOR. [Cases: Executors and Administrators C=>3(1).] probate in common form. Probate granted in the registry, without any formal procedure in court, on the executor's ex parte application.• The judgment is subject to being reopened by a party who has not been given notice. [Cases: Wills C=>213.] probate in solemn form. Probate granted in open court, as a final decree, when all interested parties have been given notice .• The judgment is final for all parties who have had notice of the proceeding, unless a later will is discovered. [Cases: Wills C=>214.] small-estate probate. (2004) An informal procedure for administering small estates, less structured than the normal process and usu. not requiring the assis­ tance of an attorney. 2. Loosely, a personal representative's actions in handling a decedent's estate. 3. Loosely, all the subjects over which probate courts have jurisdiction. 4. Archaic. A nonresident plaintiff's proof of a debt by swearing before a notary public or other officer that the debt is correct, just, and due, and by having the notary attach a jurat. probate, vb. (18c) 1. To admit (a will) to proof. 2. To administer (a decedent's estate). 3. To grant probation to (a criminal); to reduce (a sentence) by means of pro­ bation. probate asset. See legal asset under ASSET. probate bond. See BOND (2). probate code. (1931) A collection of statutes setting forth the law (substantive and procedural) of decedents' estates and trusts. [Cases: Wills C=>204.] probate court. See COURT. probate distribution. See DISTRIBUTION. probate duty. See DUTY (4). probate estate. (1930) A decedent's property subject to administration by a personal representative.• The probate estate comprises property owned by the decedent at the time of death and property acquired by the decedent's estate at or after the time of death. ­ Also termed probate property. See decedent's estate under ESTATE (3). [Cases: Executors and Administra­ tors C=>38-61; Wills C=>4.] net probate estate. The probate estate after the follow­ ing deductions: (1) family allowances, (2) exempt property, (3) homestead allowances, (4) claims against the estate, and (5) taxes for which the estate

1322

is liable. - Also termed net estate. Cf. adjusted gross estate (1) under ESTATE (3). [Cases: Internal Revenue C=>4149-4185; Taxation C=>3351.] probate fee. See FEE (1). probate homestead. See HOMESTEAD. probate in common form. See PROBATE. probate in solemn form. See PROBATE. probate judge. See JUDGE. probate jurisdiction. See JURISDICTION. probate law. The body of statutes, rules, cases, etc. gov­ erning all subjects over which a probate court has juris­ diction. probate property. See PROBATE ESTATE. probate register. See REGISTER. probatio (pra-bay-shee-oh). [Latin] Roman & civil law. Proof. plena probatio. See probatio plena. probatio diabolica (pra-bay-shee-oh dI-a-bol-i-b). [Latin "devil's proof"] Civil law. The (usu. difficult) proof of ownership of an immovable thing by tracing its title back to the sovereign. probatio mortua (pra-bay-shee-oh mor-choo-a). [Latin] Dead proof; proof by an inanimate object such as a deed or other instrument. probatio plena (pra-bay-shee-oh plee-m). [Latin] Civil law. Full proof; proof by two witnesses or a public instrument. - Also termed plena probatio. probatio probata (pra-bay-shee-oh pra-bay-ta). [Law Latin] A proven proof; evidence that could not be contradicted. probatio prout de jure (proh-bay-shee-oh proh-at dee [or di] joor-ee). [Law Latin] A proof according to any of the legal modes of proof applicable to the circum­ stance. probatio semi-plena (pra-bay-shee-oh sem -I-plee-na). [Latin] Civil law. Half-full proof; half-proof; proof by one witness or a private instrument. probatio viva (pra-bay-shee-oh VI-va). [Latin] Living proof; that is, proof by the mouth of a witness. probation. (16c) 1. A court-imposed criminal sentence that, subject to stated conditions, releases a convicted person into the community instead of sending the criminal to jail or prison. Cf. PAROLE. [Cases: Sentenc­ ing and Punishment C=> 1811.] - probationary, adj. bench probation. (1966) Probation in which the offender agrees to certain conditions or restrictions and reports only to the sentencing judge rather than a probation officer. - Also termed bench parole; court probation. [Cases: Sentencing and Punishment C=> 1969.] deferred-adjudication probation. See deferred judgment under JUDGMENT. shock probation. (1972) Probation that is granted after a brief stay in jail or prison.• Shock probation

1323

is intended to awaken the defendant to the reality of confinement for failure to abide by the conditions of probation. This type of probation is discretionary with the sentencing judge and is usu. granted within Also termed 180 days of the original sentence. split sentence. Cf. shock incarceration under INCAR­ CERATION. [Cases: Sentencing and Punishment 1936.] 2. The act of judicially proving a wilL See PROBATE. ­ probate, adj. probationary employee. See EMPLOYEE. probation before judgment. See deferred judgment under JUDGMENT. probationer. A convicted criminal who is on proba­ tion. probation officer. See OFFICER (1). probation termination. (1970) The ending of a person's status as a probationer by (1) the routine expiration of the probationary period, (2) early termination by court order, or (3) probation revocation. [Cases: Sentencing and Punishment Cr~ 1948, 1953, 2000-2041.] probation-violation warrant. See violation warrant under WARRANT (1). probation without judgment. See deferred judgment under JUDGMENT. probatio plena. See PROBATIO. probatio semi-plena. See PROBATIO. probatio viva. See PROBATIO. probative (proh-b,,-tiv), adj. (17c) Tending to prove or disprove.• Courts can exclude relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice. Fed. R. Evid. 403. [Cases: Criminal Law ~338(l), 338(7); Evidence C)99, 146.]- probativeness, probativity, n. probative evidence. See EVIDENCE.

probative fact. See FACT.

probative similiarity. See substantial similarity under

SIMILARITY. probator (proh-bay-t358; Federal Civil Procedure 2707.] proceedings below. See STATEMENT OF THE CASE (1).

1325

process

proceeds (proh-seedz), n. (13c) 1. The value ofland, goods, or investments when converted into money; the amount of money received from a sale . 2. Something received upon selling, exchanging, collecting, or otherwise dispos­ ing of collateral. UCC § 9-102(a)(67).• Proceeds differ from other types of collateral because they constitute any collateral that has changed in form. For example, if a farmer borrows money and gives the creditor a security interest in the harvest, the harvested wheat is collateral. Ifthe farmer then exchanges the harvest for a tractor, the tractor becomes the proceeds ofthe wheat. [Cases: Secured Transactions (;:::J 164.] net proceeds. (18c) The amount received in a trans­ action minus the costs of the transaction (such as expenses and commissions). - Also termed net balance. proceeds and avails. 'The cash-surrender value of a life­ insurance policy, together with values built up since the policy's issue date and the benefits payable on maturity and at the death ofthe insured. [Cases: Exemptions (;:::J 50(1); Insurance C-=>3487.J proceres (pros-d-reez). [Latin] Nobles; lords. See DOMUS

compulsory process. A process, with a warrant to arrest or attach included, that compels a person to appear in court as a witness. [Cases: Witnesses C=)2.j criminal process. A process (such as an arrest warrant) that issues to compel a person to answer for a crime. [Cases: Criminal LawC=:0216.J defective process. Void or voidable process. See void process; voidable process. final process. A process issued at the conclusion of a judicial proceeding; esp., a writ of execution. [Cases: Execution irregular process. A process not issued in accordance with prescribed practice.• Whether the process is void or merely voidable depends on the type ofirregu­ larity. Cf. regular process. legal process. Process validly issued. - Also termed lawful process. mesne process (meen). 1. A process issued between the commencement ofa lawsuit and the final judgment or determination. 2. The procedure by which a contuma­ cious defendant is compelled to plead. Also termed writ ofmesne process; writ ofmesne. original process. A process issued at the beginning of a judicial proceeding. [Cases: Process C=> 1.]

PROCERUM.

process, n. (14c) 1. The proceedings in any action or prosecution . 2. A summons or writ, esp. to appear or respond in court <service of process>. Also termed judicial process; legal process. [Cases: Federal Civil Procedure (;:::J401; Process 1,3.] "Process is so denominated because it proceeds or issues forth in orderto bring the defendant into court, to answer the charge preferred against him, and signifies the writs or judicial means by which he is brought to answer." 1 Joseph Chitty, A Practical Treatise on the Criminal Law 338 (2d ed. 1826).

"The term 'process' is not limited to 'summons.' In its broadest sense it is equivalent to, or synonymous with, 'procedure: or 'proceeding.' Sometimes the term is also broadly defined as the means whereby a court compels a compliance with its demands. "'Process' and 'writ' or 'writs' are synonymous, in the sense that every writ is a process, and in a narrow sense of the term 'process' is limited to judicial writs in an action, or at least to writs or writings issued from or out of a court, under the seal thereof and returnable thereto; but it is not always necessary to construe the term so strictly as to limit it to a writ issued by a court in the exercise of its ordinary jurisdiction." 72 CJ5 Process § 2, at 589 (l987).

alias process. A process issued after an earlier process has failed for some reason .• Among the types of alias process are alias execution, alias subpoena, alias summons, and alias writ. [Cases: Process (;:::J45.j bailable process. A process instructing an officer to take bail after arresting a defendant. • The defen­ dant's discharge is required by law after the tender of suitable security. civil process. A process that issues in a civil lawsuit. [Cases: Federal Civil Procedure ~'-;)401; Process 388.2.] products liability, n. (1925) 1. A manufacturer's or seller's tort liability for any damages or injuries suffered by a buyer, user, or bystander as a result of a defective product. - Products liability can be based on a theory of negligence, strict liability, or breach of warranty. [Cases: Products Liability C=> 111.]2. The legal theory by which liability is imposed on the manufacturer or seller of a defective product. 3. The field of law dealing with this theory. - Also termed product liability; (spedf.) manufacturer's liability. See LIABILITY. - products­ liability, adj. "The law of products liability is that body of common and statutory law permitting money reparation for substan· dard conduct of others resulting in product·related injury to the injured party's person or property. Resistance to the description of products liability as a doctrine having receded, there is today a guiding tenet in the law of prod­ uct·related injury that is the distillate of seventy years of decisional law. The birth of the doctrine can be dated at 1916, the publication of the immensely influential decision in MacPherson v. Buick Motor Co.• [217 N.Y. 382, 111 N.E. 1050 (1916)]. in which the New York Court of Appeals held that the manufacturer of any product capable of serious harm if incautiously made owed a duty of care in the deSign, inspection, and fabrication of the product, a duty owed not only to the immediate purchaser but to all persons who might foreseeably come into contact with the product. Fol· lowing MacPherson, the doctrine as formed by decisions of the ensuing decades is that a buyer, user, consumer or bystander in proximity to an unreasonably dangerous product, and who is injured in person or in property by its dangerous propensities, may recover in damages from the manufacturer or intermediate seller." 1 M. Stuart Madden, Products Liability § 1.1, at 1-2 (2d ed. 1988).

strict products liability. (1964) Products liability arising when the buyer proves that the goods were unreasonably dangerous and that (1) the seller was in the business of selling goods, (2) the goods were defective when they were in the seller's hands, (3) the defect caused the plaintiff's injury, and (4) the product was expected to and did reach the consumer without substantial change in condition. [Cases: Products Liability C=> 113.) products-liability action. A lawsuit brought against a manufacturer, seller, or lessor of a product regard­ less of the substantive legal theory or theories upon which the lawsuit is brought - for personal injury, death, or property damage caused by the manufac­ ture, construction, design, formulation, installation, preparation, or assembly of a product. - Also termed product-liability action. [Cases: Products Liability C=> 110; Sales C=>425.) products-liability insurance. See INSURANCE.

1329

profit

product test. See DURHAM RULE. product trademark. See TRADEMARK. pro emptore (proh emp-tor-ee). [Latin] Civil law. As a purchaser; by the title of a purchaser. See USUCAPIO. pro et durante. For and during. pro facto (proh fak-toh). [Latin] For the fact; considered or held as fact. pro falso clamore suo (proh fal-soh [or fawl-soh) kl45.20.) profectitium peculium (pro-fek-tish-ee-. prognosis (prog-noh-sis). (l7c) 1. The process of fore­ casting the probable outcome ofa present medical con­ dition (such as a disease). 2. The forecast of such an outcome. Cf, DIAGNOSIS. [Cases: Health (;:::-637-640, 906.] program. Parliamentary law. 1. An agenda for a meeting or a convention, listing the order of business and possibly including educational or social events. See AGENDA; business meeting under MEETING. 2. A speech

promatertera magna

1331

or other presentation within a meeting offered for the assembly's information or for the members' education or entertainment, but not for their formal consideration or action as a deliberative assembly. program committee. See COMMITTEE. program trading. A form of computerized securi­ ties trading that usu. involves buying or selling large amounts of stocks while simultaneously selling or buying index futures in offsetting amounts. pro gravitate admissi (proh grav-J-tay-tee ad-mis-I). [Latin) Hist. According to the gravity of the offense. progressive lawyering. See CAUSE LAWYERING. progressive loss. See LOSS. progressive tax. See TAX. pro hac vice (proh hahk vee-chay or hak VI-see also hahk vees). [Latin] (17c) For this occasion or particu­ lar purpose. - The phrase usu. refers to a lawyer who has not been admitted to practice in a particular juris­ diction but who is admitted there temporarily for the purpose of conducting a particular case. - Abbr. p.h. v. See admission pro hac vice under ADMISSION (2). For owner pro hac vice, see demise charter under CHARTER (8). [Cases: Attorney and Client C=:1O.] prohibit, vb. 1. To forbid by law. 2. To prevent or hinder. prohibited and reserved trademarks. See TRADE­ MARK. prohibited degree. See DEGREE. prohibited substitution. See SUBSTITUTION. prohibitio de vasto, directa parti (proh-hJ-bish-ee-oh dee vas-toh, di-rek-td pahr-tr). [Latin "prohibition of waste, directed to the party"] Hist. A writ issued during litigation prohibiting a tenant from commit­ ting waste. prohibition. (lSc) 1. A law or order that forbids a certain action. 2. An extraordinary writ issued by an appellate court to prevent a lower court from exceeding its juris­ diction or to prevent a nonjudicial officer or entity from exercising a power. - Also termed (in sense 2) writ ofprohibition; inhibition; (in Scots law) inhibition. Cf. WRIT OF CONSULTATION. [Cases: Prohibition C:=> 1.) "Prohibition is a kind of common-law injunction to prevent an unlawful assumption of jurisdiction .... It is a com­ mon·law injunction against governmental usurpation, as where one is called coram non judice (before a judge unauthorized to take cognizance of the affair), to answer in a tribunal that has no legal cognizance of the cause. It arrests the proceedings of any tribunal, board, or person exercising judicial functions in a manner or by means not within its jurisdiction or discretion." Benjamin J. Shipman, Handbook of Common-Law Pleading § 341, at 542 (Henry Winthrop Ballantine ed., 3d ed. 1923).

3. (cap.) The period from 1920 to 1933, when the manu­ facture, transport, and sale of alcoholic beverages in the United States was forbidden by the 18th Amend­ ment to the Constitution. - The 18th Amendment was repealed by the 21st Amendment. [Cases: Intoxicating Liquors C=: 17.)

prohibitive statute. See STATUTE.

prohibitory injunction. See INJUNCTION.

prohibitory interdict. See INTERDICT (1).

pro ilia vice (proh iI-d VI-see). [Latin] For that turn.

pro indefenso (proh in-da-fen-soh). [Latin] As unde­ fended; as making no defense. pro indiviso (proh in-dd-vI-Zoh), adj. [Latin "as undi­ vided"] (Of property) owned or possessed by several persons at the same time, without partition. pro interesse suo (proh in-t;Jr-es-ee s[yJoo-oh). [Latin] According to his interest; to the extent ofhis interest. ­ A third party. for example, may be allowed to intervene pro interesse suo. project financing. See FINANCING.

projectio (prJ-jek-shee-oh). [Latin] Alluvion created by

the sea. See ALLUVION. projector. See PROMOTER. projet (proh-zhay). [French] Int'l law. A draft of a proposed measure, treaty, or convention. pro laesione fidei (proh lee-zhee-oh-nee fI-dee-I). [Latin] For breach of faith. pro legato (proh Id-gay-toh). [Latin] As a legacy; by the title of a legacy.• This is a ground of usucapio. See USUCAPIO. proles (proh-Ieez). [Latin] Offspring; esp., the issue of a lawful marriage. proletariat (proh-Id-tair-ee-dt). The working class; those without capital who sell their labor to survive. proletarius (proh-ld-tair-ee-as), n. [Latin] Roman law. One of the common people; a member of a lower class who owned little or no property. prolicide (proh-IJ-sId). (1826) 1. The killing ofoffspring; esp., the crime of killing a child shortly before or after birth. 2. One who kills a child shortly before or after birth. Cf. INFANTICIDE. - prolicidal, adj. prolixity (proh-lik-sa-tee). (14c) The unnecessary and superfluous stating of facts and legal arguments in pleading or evidence. prolixity rejection. See REJECTION. pro loco et tempore (proh loh-koh et tern-pd-ree). [Latin] Hist. For the place and time. prolocutor (proh-lok-Yd-tdr). 1. Eccles. law. The president or chair of a convocation. 2. Hist. The speaker of the British House of Lords. -This office now belongs to the Lord Chancellor. - Also termed (in sense 2) forspeca. pro majori cautela (proh md-jor-I kaw-tee-l L) mutualpromises. (16c) Promises given Simultaneously by two parties, each promise serving as consideration for the other. See bilateral contract under CONTRACT. naked promise. See gratuitous promise. new promise. A previously unenforceable promise that a promisor revives and agrees to fulfill, as when a debtor agrees to pay a creditor an amount discharged in the debtor's bankruptcy. original promise. A promise to guarantee the debt of another, made primarily for the benefit of the party making the promise .• An original promise need not be in writing to be enforceable. See MAIN-PURPOSE RULE. [Cases: Frauds, Statute of(;=>23.) promise implied in fact. (1909) A promise existing by inference from the circumstances or actions of the parties. See implied promise. [Cases: Contracts 27.) promise in consideration of marriage. A promise for which the actual performance of the marriage is the consideration, as when a man agrees to transfer property to a woman if she will marry him.• A promise to marry, however, is not considered a promise in consideration ofmarriage. [Cases: Breach of Marriage Promise (;::>5.) promise in restraint oftrade. A promise whose per­ formance would limit competition in any business or restrict the promisor in the exercise of a gainful occupation.• Such a promise is usu. unenforceable. [Cases: Contracts (;::> 116.] remedial promise. A seller's promise to repair or replace goods or to refund the price if the goods (1) do not conform to the contract or to a representation at the time of the delivery of the goods, (2) conform at the time of delivery but later fail to perform as agreed, or (3) contain a defect. DCC § 2-IQ2(a)(31). unconditional promise. (1802) A promise that either is unqualified or requires nothing but the lapse of time to make the promise presently enforceable .• A party who makes an unconditional promise must perform that promise even though the other party has not performed according to the bargain. - Also termed independent promise. [Cases: Contracts (;::>218.] voidable promise. A promise that one party may, under the law, declare void by reason of that party's inca­ pacity or mistake, or by reason of the fraud, breach, or other fault of the other party. [Cases: Contracts (;::>9S.] promisee (prom-is-ee). (lSc) One to whom a promise is made. promise not to compete. See noncompetition covenant under COVENANT (1).

promoting prostitution

promise of marriage. See marriage promise under PROMISE. promise to marry. See marriage promise under PROMISE. promisor (prom-is-or). (17c) One who makes a promise; esp., one who undertakes a contractual obligation. promissor (prom-is-"r). [Latin] Civil law. 1. A promisor; specif., a party who undertakes to do a thing in response to the interrogation of the other party (the stipulator). 2. See REUS PROMITTENDI. promissory, adj, (15c) Containing or consisting of a promise 2891-2904.]

informal proofof claim. A proof of claim stating a

creditor's demand for payment and intent to hold the debtor's bankruptcy estate liable, but that does not comply with the Bankruptcy Code's form for proofs of claim. - A late-filed proof of claim may be given effect if the creditor had timely filed an informal proof of claim. [Cases: Bankruptcy (::::>2902.] proof of debt. The establishment by a creditor of a debt in some prescribed manner (as by affidavit) as a first

step in recovering the debt from an estate or property; PROOF OF CLAIM. proof of loss. An insured's formal statement of loss required by an insurance company before it will deter­ mine whether the policy covers the loss. [Cases: Insur­ ance (;:::c 3164.] proof ofservice. (18c) 1. A document filed (as by a sheriff) in court as evidence that process has been successfully served on a party. - Also termed return ofservice; return ofprocess. See SERVICE (1). [Cases: Federal Civil Procedure (;:::c511-518; Process (;:::c 127-150.] 2. CER­ TIFICATE OF SERVICE. proof of will. See PROBATE (1). pro omni alio onere (proh om-nI [also -nee] ay-lee-oh on-dc-eel. [Law Latin "for all other burden"] Hist. A portion of a charter clause restricting the vassal's duties to those explicitly named in the charter. pro opere et labore (proh op-il-ree et Id-bor-ee). [Latin] For work and labor. propaganda. Int'llaw. 1. The systematic dissemination of doctrine, rumor, or selected information to promote or injure a particular doctrine, view, or cause. 2. The ideas or information so disseminated .• The word pro­ paganda originated as an abbreviated form of Congre­ gatio de propaganda fide, a committee (of cardinals) for propagating the (Christian) faith. defamatory propaganda. Propaganda used to promote dissatisfaction among a nation's citizens and under­ mine government authority.• Defamatory propa­ ganda is common in wartime but is also used in peacetime as a means of incitement. hostile propaganda. Propaganda employed by a nation to manipulate the people ofanother nation to support or oppose their government. - Also termed ideologi­ cal aggression. See subversive propaganda. "Ideological aggression ... is the spreading of ideas inten­ tionally and deliberately so as to manipulate by symbols controversial attitudes and positions. It is hostile pro­ paganda indulged in by a state directly or vicariously to incite and influence the people of another state so as to maintain or alter the institutions and poliCies of that state, The campaign of hostile propaganda may emanate from within or without the territory of the victim state and can be carried on by any means of communications." Ann Van Wynen Thomas & A,J. Thomas,Jr., The Concept of Aggyes· sion in International Law 84 (l972),

subversive propaganda. Propaganda calculated to incite a civil war or revolution .• When the instiga­ tor is another nation, it is termed hostile propaganda or ideological aggression. war-mongeringpropaganda. Propaganda calculated to produce national support for a war and to encourage the government to declare or join in a war regardless of any legal constraints. pro parte (proh pahr-tee). [Latin) Hist. Partly; in part. pro parte legitim us, pro parte illegitimus (proh pahr-tee ld-jit-il-mds, proh pahr-tee il-ld-jit-d-mds). [Law Latin] Hist. Partly legitimate, partly illegitimate.• In Roman and civil law, an illegitimate child could be

later legitimated through the marriage of the child's parents. But England did not fully recognize this legiti­ mate status. pro parte virili (proh pahr-tee vd-rI-lI). [Latin "for the share per man"] Hist. In equal shares; for one's own proportion. pro purtibus liberandis (proh pahr-ti-bds lib-J-ran-dis). [Latin "to free the portions"] Hist. A writ for the parti­ tion oflands among coheirs. propatruus (proh-pay-troo-ds or -pa-troo-dS). [Latin] Roman & civil law. A great-grandfather's brother. propatruus magnus (proh-pay-troo-ds [or -pa-troo-dS] mag-nils). [Latin] Roman & civil law. A great-great­ great-uncle on the father's side. pro per., adv. & adj. See PRO PERSONA. pro per., n. 1. See PRO SE. 2. See PROPRIA PERSONA. proper care. See reasonable care under CARE. proper evidence. See admissible evidence under EVIDENCE. proper feud. See FEUD (1). proper improbation. See IMPROBATION. proper independent advice. See INDEPENDENT ADVICE. proper law. Conflict of laws. The substantive law that, under the principles ofconflict oflaws, governs a trans­ action. [Cases: Action (;:::c 17.] proper lookout, n. (1842) The duty of a vehicle operator to exercise caution to avoid collisions with pedestrians or other vehicles. [Cases: Automobiles (;:::c 150.J proper means. Trade secrets. Any method ofdiscovering trade secrets that does not violate property-protection statutes or standards of commercial ethics .• Proper means include independent invention, reverse engi­ neering, observing the product in public, and studying published literature. RESTATEMENT OF TORTS § 757 cmt. f (1977). [Cases: Antitrust and Trade Regulation (;::::)414.] "Trade secrets are protected ... in a manner akin to private property, but only when they are disclosed or used through improper means. Trade secrets do not enjoy the absolute monopoly afforded patented processes. for example, and trade secrets will lose their character as private property when the owner divulges them or when they are discovered through proper means .... Thus, it is the employment of improper means to produce the trade secret, rather than mere copy or use, which is the basis of liability" Chicago Lock Co. v. Fanberg, 676 F.2d 400, 404 (9th Cif. 1982).

proper party. See PARTY (2).

pro persona (proh pdr-soh-nd), adv. & adj. [Latin] For

one's own person; on one's own behalf . Sometimes shortened to pro per. See PRO SE. property. (14c) 1. The right to possess, use, and enjoy a determinate thing (either a tract ofland or a chattel); the right of ownership . - Also termed bundle of rights. [Cases: Property G~ 1.] 2. Any Constitutional Law

property

1336

external thing over which the rights of possession, use, and enjoyment are exercised . [Cases: Property 1.]



"In its widest sense, property includes all a person's legal rights, of whatever description. A man's property is all that is his in law. This usage, however, is obsolete at the present day, though it is common enough in the older books .... In a second and narrower sense, property includes not all a person's rights, but only his proprietary as opposed to his personal rights. The former constitute his estate or property, while the latter constitute his status or personal condition. In this sense a man's land, chattels, shares, and the debts due to him are his property; but not his life or liberty or reputation.... In a third application, which is that adopted [here], the term includes not even all proprietary rights, but only those which are both proprietary and in rem. The law of property is the law of proprietary rights in rem, the law of proprietary rights in personam being distinguished from it as the law of obligations. According to this usage a freehold or leasehold estate in land, or a patent or copyright, is property; but a debt or the benefit of a contract is not. ... Finally, in the narrowest use of the term, it includes nothing more than corporeal property that is to say, the right of ownership in a material object, or that object itself." John Salmond, Jurisprudence 423~24 (Glanville L. Williams ed., 10th ed. 1947).

abandoned property. (1841) Property that the owner voluntarily surrenders, relinquishes, or disclaims. Cf. lost property; mislaid property. [Cases: Abandoned and Lost PropertyC=, 1.] absolute property. Property that one has full and complete title to and control over. adventitious property. 1. Roman law. Property coming to a son or daughter from anyone other than the paterfamilias. - Also termed peculium adventitium. 2. Hist. Property coming to one from a stranger or collateral relative. appointive property. A property interest that is subject to a power of appointment. [Cases: Powers ~4.J common property. (17c) 1. Real property that is held by two or more persons with no right of survivorship. Cf. joint property. [Cases: Common Lands LJ 2.



COMMON AREA.

community property. See COMMUNITY PROPERTY. complete property. The entirety of the rights, privileges, powers, and immunities that it is legally possible for a person to have with regard to land or any other thing, apart from those that all other members of society have in the land or thing. corporeal property. l. The right of ownership in material things. 2. Property that can be perceived, as opposed to incorporeal property; tangible property. 1,2.) [Cases: Property distressed property. (1927) Property that must be sold because ofmortgage foreclosure or because it is part of an insolvent estate. [Cases: BankruptcyC='3067.1.) domestic-partnership property. Property that would be marital property if the domestic partners were married to each other. See DOMESTIC PARTNERSHIP; DOMESTIC-PARTNERSHIP PERIOD. [Cases: Marriage



dotal property. Civil law. Separate property that the wife brings to the marriage to assist the husband with the marriage expenses. Cf. extradotal property. [Cases: Dower and Curtesy .> 10.] exempt property. See EXEMPT PROPERTY. extradotal property (ek-str;:,-doh-t6-15(6).] maternal property. Property that comes from the mother of a party or other ascendants ofthe maternal stock. mislaid property. (1915) Property that has been vol­ untarily relinquished by the owner with an intent to recover it later - but that cannot now be found. Cf. abandoned property; lost property. [Cases: Abandoned and Lost Property C= L 10.)

"A distinction is drawn between lost property and mislaid property. An article is 'mislaid' if it is intentionally put in a certain place for a temporary purpose and then inadver­ tently left there when the owner goes away. A typical case is the package left on the patron's table in a bank lobby by a depositor who put the package there for a moment while he wrote a check and then departed without remembering to take it with him. There is always a 'clue' to the owner­ ship of property which is obviously mislaid rather than lost, because of the strong probability that the owner will know where to return for his chattel when he realizes he has gone away without it." Rollin M. Perkins & Ronald N. Boyce, Criminal Law 31 0-11 (3d ed. 1982).

mixedproperty. (18c) Property with characteristics of both real property and personal property - such as heirlooms and fixtures. [Cases: Property C=4.] movable property. See MOVABLE (1). neutral property. See NEUTRAL PROPERTY. nonancestral property. See nonancestral estate under ESTATE (1).

nonexempt property. See NONEXEMPT PROPERTY. paraphernal property. See extradotal property. paternal property. Property that comes from the father of a party or other ascendants of the paternal stock. personal property. (18c) 1. Any movable or intangible thing that is subject to ownership and not classified as real property. Also termed personalty; personal estate; movable estate; (in plural) things personal. Cf. real property. [Cases: PropertyC=4.]2. 7ax. Property not used in a taxpayer's trade or business or held for income production or collection. [Cases: Taxation Cr-;2176.]

private property. (17c) Property - protected from public appropriation over which the owner has exclusive and absolute rights. public property. (17c) State- or community-owned property not restricted to anyone individual's use or possession. [Cases: States (>88.) qualified property. A temporary or special interest in a thing (such as a right to possess it), subject to being totally extinguished by the occurrence of a specified contingency over which the qualified owner has no control. qualified-terminable-interest property. (1982) Property that passes by a QTIP trust from a deceased spouse to the surviving spouse and that (if the executor so elects) qualifies for the marital deduc­ tion provided that the surviving spouse is entitled to

property

receive all income in payments made at least annually for life and that no one has the power to appoint the property to anyone other than the surviving spouse. • The purpose of the marital deduction is to permit deferral of estate taxes until the death of the surviv­ ing spouse. But this property is included in the sur­ viving spouse's estate at death, where it is subject to the federal estate tax. Abbr. QTIP. See QTIP trust under TRUST. [Cases: Internal Revenue (::=4169(4).] quasi-community property. See COMMUNITY PRO­ PERTY.

real property. (18c) Land and anything growing on, attached to, or erected on it, excluding anything that may be severed without injury to the land.• Real property can be either corporeal (soil and buildings) or incorporeal (easements). - Also termed realty; real estate. Cf. personal property (1). [Cases: Property (::='4.] "Historically. the line between real and personal property stems from the types of assets administered on death respectively, in the king's and in the church's courts. The king's courts, concerned with the preservation of the feudal structure, dealt with fees Simple, fees tail and life estates, Estates for years, gradually evolving out of contracts made by feudally unimportant persons, clearly became interests in land but never fully attained the historical dignity of being 'real property.' The early economic unimportance of money, goods and things other than land permitted the church courts to take over the handling of all such assets on the death of the owner. When the development of trade and of capitalism caused assets of these types to assume great, and sometimes paramount, importance we found ourselves with the two important categories of property, namely 'real' and 'personal' property, each with its set of rules evolved from a different matrix. The pressure of modern society has been strongly for assimilation and the resultant elimination of this line, but this movement is far from complete attainment of its goal." 1 Richard R. Powell, Powell on Real Property § 5.04, at 5-7 to 5-8 (Patrick j. Rohan ed., rev, ed. 1998).

scheduled property. Insurance. Property itemized on a list (usu. attached to an insurance policy) that records property values, which provide the basis for insurance payments in the event of a loss under an insurance policy. [Cases: Insurance C=2169.~ separate property. See SEPARATE PROPERTY. special-design property. See special-purpose property. speCial property. Property that the holder has only a qualified, temporary, or limited interest in, such as (from a bailee's standpoint) bailed property. special-purpose property. Property that has a unique design or layout, incorporates special construction materials, or has other features that limit the prop­ erty's utility for purposes other than the one for which it was built. • Because of the property's specialized nature, the market for the property may be quite limited. Also termed limited-market property; special-design property. [Cases: Eminent Domain C:::> 134; Taxation G::::>2514.] specialty property. See SPECIALTY (3). tangible personal property. (1843) Corporeal personal property of any kind; personal property that can be

seen, weighed, measured, felt, or touched, or is in any other way perceptible to the senses, such as furniture, cooking utensils, and books. tangible property. (1802) Property that has physical form and characteristics. Cf. intangible property. 2.] [Cases: Property terminable property. Property (such as a leasehold) whose duration is not perpetual or indefinite but is limited in time or is liable to termination upon the occurrence of some specified event. wasting property. (1853) 1. Property that is consumed in its normal use, such as a wasting asset, a leasehold interest, or a patent right. 2. A right to or an interest in such property. property, law of. See LAW OF PROPERTY. property crimes. See CRIMES AGAINST PROPERTY. property-damage insurance. See property insurance under INSURANCE. property dividend. See asset dividend under DIVIDEND. property division. See PROPERTY SETTLEMENT (1). property insurance. See INSURANCE. property of the debtor. Bankruptcy. Property that is owned or (in some instances) possessed by the debtor, including property that is exempted from the bank­ ruptcyestate. 11 USCA § 541(b). - Also termed debtor's property. [Cases: Bankruptcy~2531-2559.] property ofthe estate. Bankruptcy. The debtor's tangible and intangible property interests (including both legal and equitable interests) that fall under the bankruptcy court's jurisdiction because they were owned or held by the debtor when the bankruptcy petition was filed. 11 USCA § 541. Also termed estate's property. [Cases: Bankruptcy ~ 2491-2559.] property ratione privilegii (ray-shee-oh-nee priv-i-Iee­ jee-I). Hist. A common-law right, granted by a royal franchise, to take wild animals on another's land. ­ This principle made its way into American law. See, e.g., Hanson v. Fergus Falls Nat'l Bank, 65 N.W.2d 857, 862 (Minn. 1954). Cf. PROPERTY RATIONE SOLI. "Property Ratione privilegii is the right which, by a peculiar franchise anciently granted by the Crown in virtue of its prerogative, one man had of killing and taking animals Ferae naturae on the land of another; and in like manner the game, when killed or taken by virtue of the privilege, became the absolute property of the owner of the fran­ chise, just as in the other case it becomes the absolute property of the owner of the soil." Blades v. Higgs, 11 Eng. Rep. 1474, 1479 (H.L. 1865).

property ratione soli (ray-shee-oh-nee soh-II). The com­ mon-law right to take wild animals found on one's own land. Cf. PROPERTY RATIONE PRIVILEGII. "The exclusive common law right of a landowner to take game on his land, known as property ratione soli ... has been recognized throughout the history of common law, with one exception: Following the Norman Conquest the King contended that he was lord paramount of the field, possessed of the right to the universal soil and of the exclusive right to take the game, but the irate landowners,

vehemently objecting, quickly and decisively recaptured their rights and re-established the common law." Alford v. Finch, 155 So.2d 790, 792 (Fla. 1963).

property right. See RIGHT. property settlement. 1. A judgment in a divorce case determining the distribution of the marital property between the divorcing parties. _ A property settle­ ment includes a division of the marital debts as well as assets. Also termed property division; division ofproperty. [Cases: Husband and Wife (,'=248.] 2. A contract that divides up the assets of divorcing spouses and is incorporated into a divorce decree. ­ Also termed integrated property settlement; property settlement agreement. Cf. DIVORCE AGREEMENT. [Cases: 3. MARITAL AGREEMENT. Husband and Wife property settlement agreement. See PROPERTY SETTLE­ MENT (2). property tax. See TAX. property tort. See TORT. prophylactic (proh-fa-Iak-tik), adj. (16c) Formulated to prevent something . - prophy­ laxis (proh-fr-soh-nOl), adj. & adv. [Latin] In his own person; PRO SE. - Sometimes short­ ened to pro per. Abbr. p.p. [Cases: Attorney and Client (;.-::>62.] proprietary (pr;>-prI-;>-ter-ee), adj. (ISc) L Ofor relating to a proprietor -prI-Ol-tas n[y]oo-d;». Naked ownership; the mere title to property, without the usufruct. proprietas plena (prd-pn-a-tas pIee-nOll. Full owner­ ship, including both the title and the usufruct. proprietate probanda (prOl-pn-Ol-tay-tee prOl-ban-dd). See DE PROPRIETATE PROBANDA. proprietor, n. (16c) An owner, esp. one who runs a business. See SOLE PROPRIETORSHIP. - proprietor­ ship, n. propriety. Hist. Privately owned possessions; property. propriis manibus (proh-pree-is man-Ol-bOls). [LatinJ Hist. By one's own hands. proprio jure (proh-pree-oh joor-ee). [LatinJ Rist. By one's own property right. proprio nomine (proh-pree-oh nahm-Ol-nee). [Latin] Hist. In one's own name. proprio vigore (proh-pree-oh vi-gor-ee). [Latin] By its own strength. proprium negotium (proh-pree-;>m ni-goh-shee-Olm). [LatinJ Hist. One's own business. pro privato commodo (proh pn-vay-toh kom-Ol-doh). [Law LatinJ Hist. For private convenience .• The phrase sometimes appeared in reference to a private road as distingUished from a public highway. Cf. PRO BONO PUBLICO.

propter

propter (prop-t<Jr). [Latin] For; on account of. propter affectum (prop-t;)f ;)-fek-t<Jm). See challenge propter affectum under CHALLENGE (2). propter commodum curiae (prop-tar kom-;)-d;)m kyoor-ee-ee). [Law Latin] Hist. For the advantage of the court. propter curam et culturam (prop-t<Jr kyoor-am et k;)l-t[y]oor-<Jm). [Latin] Rist. For care and cultiva­ tion. propter defectum (prop-t<Jr d;)-fek-t<Jm). See challenge propter defectum under CHALLENGE (2). propter defectum sanguinis (prop-t<Jr d<J-fek-t<Jm sang­ gwi-nis). [Latin] On account of failure of blood. propter delectum personae (prop-t<Jf d<J-Iek-t<Jm par­ soh-nee). [Law Latin] Hist. On account of the selection of persons. _ For example, a person could not delegate the principal duties of an office when that person had been specifically chosen to perform those duties. propter delictum (prop-t<Jr d<J-lik-t<Jm). See challenge propter delictum under CHALLENGE. propter honoris respectum (prop-tar h<J-nor-is ri-spek­ tdm). [Latin] On account of respect of honor or rank. propter impotentiam (prop-tdf im-pd-ten-shee-dm). [Latin] On account ofhelplessness. - This was formerly given as a ground for gaining a property interest in a wild animal, based on the animal's inability to escape (as where, for example, a young bird could not fly away). propter ingratitudinem (prop-t;)r in-grat-<J-t[y]oo-dd­ n<Jm). [Latin] Hist. On account of ingratitude. - In some instances, a superior could revoke a gift based on the vassal's ingratitude, and a slave-owner could revoke the manumission of a slave. propter majorem securitatem (prop-tar ma-jor-;)m si-kyoor-;)-tay-tdm). [Law Latin] Hist. For greater security. propter negligentiam haeredis jus suum non prose­ quentis (prop-tar neg-li-jen-shee-am h32.] proscribe, vb. (15c) 1. To outlaw or prohibit; to forbid. 2. Roman & civil law. To post or publish the name of (a person) as condemned to death and forfeiture of property. proscription, n. (14c) 1. The act of prohibiting; the state of being prohibited. 2. A prohibition or restriction. Cf. PRESCRIPTION (1). proscriptive, adj. pro se (proh say or see), adv. & adj. [Latin] (1817) For oneself; on one's own behalf; without a lawyer . Also termed pro persona; in propria persona; propria persona; pro per. See PROPRIA PERSONA. [Cases: Attorney and Client (::::>62; Criminal Law (::::> 1750.] pro se, n. (1857) One who represents oneself in a court proceeding without the assistance of a lawyer 1980-1986.] prosecutorial vindictiveness. Criminal law. The act or an instance of intentionally charging a more serious crime or seeking a more severe penalty in retaliation for a defendant's lawful exercise of a constitutional right. [Cases: Criminal LawC==>37.l5; Sentencing and Pun­ ishment prosecutrix (pros-a-kyoo-triks). Archaic. A female pros­ ecutor. prosequi (prahs-a-kwI), vb. [Latin) To follow up or pursue; to sue or prosecute. See NOLLE PROSEQUI. prosequitur (pra-sek-wa-t. prospective damages. See DAMAGES. prospective heir. See HEIR. prospective law. See prospective statute under STATUTE. prospective nuisauce. See anticipatory nuisance under NUISANCE. prospective statute. See STATUTE. prospective \\-"723.] public easement. See EASEMENT. public enemy. See E)<EMY. public entity. See ENTITY. public-exchange offer. See OFFER. public fact. See FACT. public figure. (1871) A person who has achieved fame or notoriety or who has voluntarily become involved in a public controversy.• A public figure (or public official) suing for defamation must prove that the defendant acted with actual malice. New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710 (1964). Also termed public character. [Cases: Libel and Slander 48(1).] all-purpose public figure. A person who achieves such pervasive fame or notoriety that he or she becomes a public figure for all purposes and in all contexts .• For example, a person who occupies a position with great persuasive power and influence may become an all-purpose public figure whether or not the person actively seeks attention. Gertz v. Robert Welch, Inc., 418 U.S. 323,345,94 S.Ct. 2997, 3009 (1974). [Cases: Libel and Slander C=>48(1).] limited-purpose public figure. (1979) A person who, haVing become involved in a particular public issue, has achieved fame or notoriety only in relation to that particular issue. [Cases: Libel and Slander 48(1).] public forum. (1935) Constitutional law. A public place where people traditionally gather to express ideas and

public-function doctrine

exchange views .• To be constitutional, the govern­ ment's regulation of a public forum must be narrowly tailored to serve a significant government interest and must usu. be limited to time-place-or-manner restric­ tions. - Also termed open forum. See TIME-PLACE-OR­ MANNER RESTRICTION. Cf. NONPUBLIC FORUM. [Cases: Constitutional Law c> 1732.] ''IT]raditional public fora are open for expressive activity regardless of the government's intent. The objective char­ acteristics of these properties require the government to accommodate private speakers. The government is free to open additional properties for expressive use by the general public or by a particular class of speakers, thereby creating designated public fora. Where the property is not a traditional public forum, the property is either a nonpub­ lie forum or not a forum at aiL" Arkansas Educ. Television Comm'n v. Forbes, 523 U.S. 666, 678,118 S.Ct. 1633, 1641 (1998).

designated public forum. (1985) Public property that has not traditionally been open for public assembly and debate but that the government has opened for use by the public as a place for expressive activity, such as a public-university facility or a publicly owned theater. • Unlike a traditional public forum, the gov­ ernment does not have to retain the open character of a designated public forum. Also, the subject matter of the expression permitted in a designated public forum may be limited to accord with the character of the forum; reasonable, content-neutral time, place, and manner restrictions are generally permissible. But any prohibition based on the content of the expression must be narrowly drawn to effectuate a compelling state interest, as with a traditional public forum. ­ Also termed limited public forum; nontraditional public forum. [Cases: Constitutional Law C:":' 1744.] traditional public forum. (1973) Public property that has by long tradition - as opposed to governmental designation - been used by the public for assembly and expression, such as a public street, public sidewalk, or public park. • To be constitutional, the government's content-neutral restrictions ofthe time, place, or manner of expression must be narrowly tailored to serve a significant government interest, and leave open ample alternative channels of com­ munication. Any government regulation of expres­ sion that is based on the content of the expression must meet the much higher test of being necessary to serve a compelling state interest. - Also termed quintessential public forum. [Cases: Constitutional Law 1736J public-function doctrine. See PUBLIC-FUNCTION TEST. public-function rationale. See GOVERNMENTAL-FUNC­ TION THEORY. public-function test. (1966) In a suit under 42 USCA § 1983, the doctrine that a private person's actions con­ stitute state action if the private person performs func­ tions that are traditionallv reserved to the state. - Also termed public-function d;ctrine; public-function theory. [Cases: Civil Rights c> 1326(4,7).] public fund. See FUND (1).

1350

public grant. See PATENT (2).

public ground. See public land under LAND.

public health. See HEALTH.

Public Health Service. The combined offices and units

of the U.S. Department ofHealth and Human Services responsible for promoting the physical and mental health of American citizens. public hearing. See HEARING. public highway. See HIGHWAY. public house. 1. Archaic. An inn. 2. A tavern where alco­ holic beverages may be bought and consumed on the premises.• The British term pub is an abbreviation of public house. Also termed (in sense 2) tippling house. publici juris (p. public improvement. See IMPROVEMENT. public injury. See INJURY. public institution. See INSTITUTION (3). public instrument. See PUBLIC WRITING. public interest. (16c) 1. The general welfare of the public that warrants recognition and protection. 2. Some­ thing in which the public as a whole has a stake; esp., an interest that justifies governmental regulation. public-interest exception. (1957) The principle that an appellate court may consider and decide a moot case - although such decisions are generally prohib­ ited - if (1) the case involves a question of considerable public importance, (2) the question is likely to arise in the future, and (3) the question has evaded appellate review. [Cases: Appeal and Error C=781(1); Federal Courts C:)723.] public-interest law. Legal practice that advances social justice or other causes for the public good, such as envi­ ronmental protection.• Although public-interest law primarily encompasses private not-for-profit work, the term is sometimes used to include the work of gov­ ernment agencies such as public-defender offices. Cf. CAUSE LAWYERING; social justice under JUSTICE. public-interest lawyer. See LAWYER. public international law. See INTERNATIO:-lAL LAW. public intoxication. See INTOXICATION. public invitee. See INVITEE. publicist.!. A public-relations specialist. 2. An inter­ national-law scholar.• The term applies to scholars of both public and private international law. public-key encryption. See KEY ENCRYPTION. public land. See LAND. public law. (16c) 1. The body oflaw dealing with the rela­ tions between private individuals and the government,

public safety

1351

and with the structure and operation ofthe government itself; constitutional law, criminal law, and administra­ tive law taken together. Cf. PRIVATE LAW (1). 2. A statute affecting the general public .• Federal public laws are first published in Statutes at Large and are eventually collected by subject in the u.s. Code. Abbr. Pub. L.; P.L. - Also termed public statute (abbr. P.S.); general statute; (esp. in BrE) public act. Cf. general law (1) under LAW; general act and public act under ACT (3). [Cases: Statutes ~'::.'68.] 3. Constitutional law. public-lending right. Copyright. In the U.K. and some other countries, the right of an author to a royalty for works that are lent out by a public library. public-liability insurance. See liability insurance under INSDRANCE.

publicly held corporation. See public corporation (1) under CORPORATION. publicly traded partnership. See PARTNERSHIP. public market. See MARKET. public-meeting law. See SUNSHINE LAW. public minister. See MINISTER. public morality. See MORALITY. public necessity. See NECESSITY. public notice. See NOTICE. public nuisance. See NUISANCE. public offense. See OFFENSE (1). public offer. See offer to all the world under OFFER. public offering. See OFFERING. public office. A position whose occupant has legal authOrity to exercise a government's sovereign powers for a fixed period. [Cases: Officers and Public Employ­ ees LJ public official. See OFFICIAL (1). public passage. A right held by the public to pass over a body of water, whether the underlying land is publicly or privately owned. [Cases: Navigable Waters (;=> 15.] public-performance right. See PERFORMANCE RIGHTS. public person. A sovereign government, or a body or person delegated authority under it. public place. Any location that the local, state, or national government maintains for the use of the public, such as a highway, park, or public building. [Cases: Munici­ pal Corporations (;=>721; States ~-:;'88; United States G'-::::57.J public policy. (l6c) 1. Broadly, principles and standards regarded by the legislature or by the courts as being of fundamental concern to the state and the whole of society.• Courts sometimes use the term to justify their decisions, as when declaring a contract void because it is "contrary to public policy." - Also termed policy of the law. [Cases: Contracts (;=>108.] "The policy of the law, or public policy, is a phrase of common use in estimating the validity of contracts. Its history is obscure; it is most likely that agreements which tended to restrain trade or to promote litigation were the

first to elicit the principle that the courts would look to the interests of the public in giving efficacy to contracts. Wagers, while they continued to be legal, were a frequent provocative of judicial ingenuity on this point, as is suf· ficiently shown by the case of Gilbert v. Sykes [16 East 150 (1812)J ... : but it does not seem probable that the doctrine of public policy began in the endeavor to elude their binding force. Whatever may have been its origin, it was applied very frequently, and not always with the happiest results, during the latter part of the eighteenth and the commencement of the nineteenth century. Modern deci­ sions, however, while maintaining the duty of the courts to conSider the public advantage, have tended more and more to limit the sphere within which this duty may be exer' cised." William R. Anson, Principles of the Law of Contract 286 (Arthur L Corbin ed., 3d Am. ed. 1919).

2. More narrowly, the principle that a person should not be allowed to do anything that would tend to injure the public at large. public-policy limitation. (1961) Tax. A judicially devel­ oped principle that a person should not be allowed to deduct expenses related to an activity that is contrary to the public welfare .• This principle is reflected in the Internal Revenue Code's specific disallowance provisions (such as for kickbacks and bribes). [Cases: Internal Revenue ("':=)3368.]

public pond. See GREAT POND. public power. See POWER (3). public property. See PROPERTY. public prosecutor. 1. See DISTRICT PROSECUTOR

ATTORNEY.

2. See

(1).

public purpose. (18c) An action by or at the direction of a government for the benefit of the community as a whole. [Cases: Municipal Corporations (;=>861.] public record. See RECORD. public-records doctrine. The principle, applicable in many states, that a third person acquiring or inter­ ested in real or immovable property may rely on the face of relevant public records and need not investigate further for unrecorded interests. [Cases: Vendor and Purchaser (;=>231.] public-records exception. The exception from the hearsay rule for the contents of certain public records or the absence of a record where it would ordinarily be kept in public archives. Fed. R. Evid. 803(8)-(10). [Cases: Criminal Law (;=>429; Evidence (;=>325-337.] public relations. 1. The business of creating or main­ taining a company's goodwill or good public image. 2. A company's existing goodwill or public image. Abbr. PR. public reprimand. See REPRIMAND. public revenue. See REVENUE. public right. See RIGHT. public right-of-way. See RIGHT-OF-WAY. public safety. (16c) The welfare and protection of the general public, usu. expressed as a governmental responsibility . [Cases: Municipal Corporations (:=>595.]

1352

public-safety exception

public-safety exception. (1984) Evidence. An exception to the Miranda rule, allowing into evidence an other­ wise suppressible statement by a defendant concerning information that the police needed at the time it was made in order to protect the public. _ If, for example, a victim tells the police that an assailant had a gun, and upon the suspect's arrest the police find a holster but no gun, they would be entitled immediately to ask where the gun is. Under the public-safety exception, the suspect's statement of the gun's location would be admissible. [Cases: Criminal Law (;:::>412.2(3).] public sale. See SALE. public school. See SCHOOL. public seal. See SEAl.. public sector. (1934) The part of the economy or an industry that is controlled by the government. Cf. PRIVATE SECTOR.

public security. See SECURITY. public service. (16c) 1. A service provided or facilitated by the government for the general public's convenience and benefit. 2. Government employment; work per­ formed for or on behalf of the government. 3. Broadly, any work that serves the public good, including govern­ ment work and public-interest law. [Cases: Officers and Public Employees (;:::> 1.] public-service commission. See COMMISSION (3). public-service corporation. See CORPORATION. public servitude. See SERVITUDE (2). public session. See open session under SESSION (1). public statute. 1. See general statute under STATlJTE. 2. See PUBLIC LAW (2). public stock. See STOCK. public store. See STORE. public tort. See TORT. public trial. See TRIAL. public, true, and notorious. Hist. Eccles. law. The con­ cluding words of each allegation in a court petition. public trust. See charitable trust under TRUST. public-trust doctrine. The principle that naVigable waters are preserved for the public use, and that the state is responsible for protecting the public's right to the use. [Cases: Navigable Waters G=>2.] publicum jus (pab-li-kdm j;}s). [Latin] See JUS PUBLI­ CUM.

public use. See USE (1). public-use bar. Patents. A statutory bar that prevents the granting of a patent for an invention that was publicly used or sold in the United States more than one year before the application date. 35 USCA § 102(b). _ The doctrine can be invoked for any public use, any com­ mercial use, any sale or offer of sale, or any private transfer made without a pledge of secrecy. Cf. PRIVATE­ USE EXCEPTIO~. - Also termed prior-use bar. [Cases: Patents

public-use proceeding. Patents. An investigation into whether a patent is barred because the invention was publicly used or sold more than a year before the application was filed. - Rarely used, this procedure is instituted upon a petition by someone protesting the application. If the petition and supporting documents make out a prima facie case, the examiner will hold a hearing and issue a final decision, which is not review­ able. 37 CFR 1.292. - Abbr. PUP. Cf. PROTEST. [Cases: Patents public utility. See UTILITY. public utility district. See municipal utility district under DISTRICT.

Public Utility Holding Company Act. A federal law enacted in 1935 to protect investors and consum­ ers from the economic disadvantages produced by the small number of holding companies that owned most of the nation's utilities. - The Act also sought to protect the public from deceptive security advertising. 15 USCA §§ 79 et seq. Abbr. PUlfCA. [Cases: Public Utilities (;:::>211-216.] public verdict. See VERDICT. public vessel. See VESSEL. Public Vessels Act. A federal law enacted in 1925 to allow claims against the United States for damages caused by one of its vessels. 46 USCA app. §§ 781-90. Abbr. PVA. [Cases: United States (;:::>78(7).] public war. See WAR. public water. See WATER. public welfare. See WELFARE (1). public-welfare offense. See OFFENSE (1). public wharf. See WHARF. public works. See WORKS. public worship. See WORSHIP. public writing. 1. The written acts or records ofa govern­ ment (or its constituent units) that are not constitution­ ally or statutorily protected from disclosure. - Laws and judicial records, for example, are public writings. A private writing that becomes part of a public record may be a public writing in some circumstances. [Cases: Records (;:::>54.] 2. Rare. A document prepared by a notary public in the presence of the parties who sign it before witnesses. Also termed (in both senses) public instrument; (in sense 2) escritura publica. public wrong. See WRONG. publish, vb. (14c) 1. To distribute copies (of a work) to the public. 2. To communicate (defamatory words) to someone other than the person defamed. See INTENT TO PUBLISH. [Cases: Libel and Slander (;=-'23.] 3. To declare (a will) to be the true expression of one's tes­ tamentary intent. [Cases: Wills (;:~" 119.] 4. To make (evidence) available to a jury during trial. See PUBLI­ CATION.

PUc. abbr. Public Utilities Commission.

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punishment

pun. abbr.

1. PLANNED-UNIT DEVELOPMENT. 2. See municipal utility district under DISTRICT. pudzeld. See WOOD-GELD. pueblo (pweb-loh). [Spanish] A town or village, esp. in the southwestern United States. puer (Pyoo- 1430-1607.] cumulative punishment. (1842) Punishment that increases in severity when a person is convicted of the same offense more than once. deterrent punishment. (1896) 1. Criminal law. Punish­ ment intended to deter the offender and others from committing crimes and to make an example of the offender so that like-minded people are warned of the consequences of crime. [Cases: Sentencing and Punishment (:::::>41.] 2. Torts. Punishment intended to deter a tortfeasor from repeating a behavior or failing to remove a hazard that led to an injury.• Punitive damages are usu. awarded as a deterrent punishment. excessive punishment. (17c) Punishment that is not jus­ tified by the gravity of the offense or the defendant's criminal record. See excessive fine (1) under FINE (5). [Cases: Sentencing and Punishment (:::::> 32.] infamous punishment. (16c) Punishment by impris­ onment, usu. in a penitentiary. See infamous crime under CRIME. nonjudicial punishment. Military law. A procedure under which a commanding officer levies punish­ ment against a minor offender who is subject to the Uniform Code of Military Justice.• In the Navy and Coast Guard, nonjudicial punishment is termed cap­ tain's mast; in the Marine Corps, it is termed office hours; and in the Army and Air Force, it is referred to as Article 15. Nonjudicial punishment is not a court­ martial. [Cases: Armed Services (;:::>39; Military Justice C::>525.] preventive punishment. (1893) Punishment intended to prevent a repetition of wrongdOing by disabling the offender. [Cases: Sentencing and Punishment C'-:::> 42.] reformative punishment. (1919) Punishment intended to change the character of the offender. [Cases: Sen­ tencing and Punishment retributive punishment. (1887) Punishment intended to satisfy the community's retaliatory sense of indig­ nation that is provoked by injustice. [Cases: Sentenc­ ing and Punishment C-~44.] "The fact that it is natural to hate a criminal does not prove that retributive punishment is justified." Glanville Williams, The Sanctity of Life and the Criminal Law 60 (1957).

2. Family law. A negative disciplinary action adminis­ tered to a minor child by a parent. [Cases: Parent and Child C=2.5.]

punitive, adj. (16c) InvolVing or int1icting punish­ ment. Also termed punitory.

punitive articles. Articles 77-134 of the lIniform Code of Military Justice.• These articles list the crimes in the military-justice system. [Cases: Armed Services (:::::>35; Military Justice (:::::>550-789.] punitive damages. See DAMAGES.

punitive isolation. See punitive segregation under SEG­ REGATION (1). punitive segregation. See SEGREGATION. punitive statute. See penal statute under STATUTE. punitory. See PUNITIVE. punitory damages. See punitive damages under DAMAGES. PUP, abbr. See PUBLIC-USE PROCEEDING. pupil. Scots & civil law. A person who has not reached or completed puberty. See MINORITY (1). pupillarity (pyoo-pi-lair-d-tee). Scots & Civil law. The stage of a person's life that spans from infancy through puberty. pupillary substitution (Pyoo-pd-Ier-ee). See SUBSTITU­ TION (5). pupillus (pyoo-pil-ds), n. [Latin] Roman law. A child under the age of puberty and under the authority of a sui juris tutor. See TUTELA. pur (pdr or poor). [Law French] By; for. pur autre vie (par oh-tr;:! [or oh-tdr] vee). [Law French "for another's life"] For or during a period measured by another's life . Also spelled per autre vie. purchase, n. (lSc) 1. The act or an instance of buying. 2. The acquisition of real property by one's own or another's act (as by will or gift) rather than by descent or inheritance. [Cases: Vendor and Purchaser Cf. DESCENT (1). - purchase, vb. compulsory purchase. Rare. See EMINENT DOMAIN. purchase, words of. See WORDS OF PURCHASE. purchase accounting method. See ACCOUNTING METHOD. purchase agreement. (1909) A sales contract. Cf. REPUR­ CHASE AGREEMENT. blanket purchase agreement. See BLANKET ORDER (3).

purchase money. (17c) The initial payment made on property secured by a mortgage. [Cases: Mortgages (;:::>115.] purchase-money interest. See purchase-money security interest under SECURITY INTEREST. purchase-money mortgage. See MORTGAGE. purchase-money resulting trust. See TRUST. purchase-money security interest. See SECURITY INTEREST. purchase order. (1916) A document authorizing a seller to deliver goods with payment to be made later. Abbr. P.O. [Cases: Sales (:::::>23(1).]

purpart

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blanket purchase order. See BLANKET ORDER (3). purchaser. (14c) 1. One who obtains property for money or other valuable consideration; a buyer. affiliated purchaser. Securities. Any of the following: (1) a person directly or indirectly acting in concert with a distribution participant in connection with the acquisition or distribution of the securities involved; (2) an affiliate who directly or indirectly controls the purchases of those securities by a distribution par­ ticipant, or whose purchases are controlled by such a participant, or whose purchases are under common control with those of such a participant; (3) an affili­ ate, who is a broker or a dealer (except a broker-dealer whose business consists solely of effecting transac­ tions in "exempted securities," as defined in the Exchange Act); (4) an affiliate (other than a broker­ dealer) who regularly purchases securities through a broker-dealer, or otherwise, for its own account or for the account ofothers, or recommends or exercises investment discretion in the purchase or sale ofsecu­ rities (with certain specified exceptions). SEC Rule lOb-lS(a)(2) (17 CFR § 240.lOb-lS(a)(2». bona fide purchaser. (1Sc) One who buys something for value without notice of another's claim to the property and without actual or constructive notice of any defects in or infirmities, claims, or equities against the seller's title; one who has in good faith paid valuahle consideration for property without notice of prior adverse claims. - Generally, a bona fide purchaser for value is not affected by the transf­ eror's fraud against a third party and has a superior right to the transferred property as against the trans­ feror's creditor to the extent of the consideration that the purchaser has paid. - Abbr. BFP. Also termed bona jide purchaser for value; good-faith purchaser; purchaser in good faith; innocent purchaser; innocent purchaser for value. [Cases: Sales (;::::::>234(1); Vendor and Purchaser (;::::::>220.J good-faith purchaser. See bona fide purchaser. innocent purchaser. See bona fide purchaser. innocent purchaser for value. See bona fide pur­ chaser. purchaser for value. A purchaser who pays consider­ ation for the property bought. purchaser in good faith. See bona fide purchaser. purchaser pendente lite. One who buys an interest in something that is the subject of a pending lawsuit. [Cases: Lis Pendens 22(4), 23.] 2. One who acquires real property by means other than descent, gift, or inheritance. first purchaser. An ancestor who first acquired an estate that still belongs to the family. pure acddent. See unavoidable accident under ACCIDENT.

pure annuity. See nonrefund annuity under ANNUITY.

pure-comparative-negligence doctrine. (1976) The principle that liability for negligence is apportioned in accordance with the percentage of fault that the fact-finder assigns to each party and that a plaintiff's percentage of fault reduces the amount of recoverable damages but does not bar recovery. See comparative negligence under NEGLIGENCE; APPORTIONMENT OF LIABILITY. Cf. 50-PERCENT RULE. [Cases: Negligence ~-:>549(lO).1

pure debt. See pure obligation under OBLIGATION. pure easement. See easement appurtenant under EASEMENT.

pure freezeout. See FREEZEOUT. pure mark. See technical trademark under

TRADE­

MARK.

pure obligation. See OBLIGATION. pure plea. See PLEA (3). pure race statute. See RACE STATUTE. pure risk. See RISK. pure speech. See SPEECH. pure theory. The philosophy ofHans Kelsen, in which he contends that a legal system must be "pure" - that is, self-supporting and not dependent on extralegal values. - Kelsen's theory, set out in such works as General Theory ofLaw and the State (1945) and The Pure Theory ofLaw (1934), maintains that laws are norms handed down by the state. Laws are not defined in terms of history, ethics, sociology, or other external factors. Rather, a legal system is an interconnected system of norms, in which coercive techniques are used to secure compliance. The validity of each law, or legal norm, is traced to another legal norm. Ultimately, all laws must find their validity in the society's basic norm (grund­ norm), which may be as simple as the concept that the constitution was validly enacted. See basic norm under NORM.

pure trademark. See technical trademark under TRADE­ MARK.

pure villeinage. See VILtEINAGE.

purgation (par-gay-sh;m). Hist. The act of cleansing or

exonerating oneself of a crime or accusation by an oath or ordeal. canonical purgation. Purgation by oath-helpers in an ecclesiastical court. See COMPURGATION. vulgar purgation. Purgation by fire, hot irons, battle, or cold water; purgation by means other than by oath­ helpers. _ Vulgar purgation was so called because it was not sanctioned by the church after 1215. purgatory oath. See OATH. purge, vb. (13c) To exonerate (oneself or another) of gUilt . [Cases: Contempt (:::;>S1.) purpart (p;)r-pahrt). A share of an estate formerly held in common; a part in a division; an allotment from

purparty

an estate to a coparcener. Formerly also termed purparty; perparts; pourparty. purparty (p3r-pahr-tee). See PURPART. purport (p3r-port), n. (ISc) The idea or meaning that is conveyed or expressed, esp. by a formal document. purport (pdr-port), vb. (l7c) To profess or claim, esp. falsely; to seem to be . purported, adj. (1885) Reputed; rumored. purpose. (l3c) An objective, goal, or end; specif., the business activity that a corporation is chartered to engage in. [Cases: Corporations 14.] purpose approach. See MISCHIEF RULE. purpose dause. An introductory clause to a statute explaining its background and stating the reasons for its enactment. [Cases: Statutes C=210.) purposeful, adj. Done with a specific purpose in mind; deliberate. purposive construction. See CONSTRUCTION. purpresture (pdr-pres-chdr). (14c) An encroachment upon public rights and easements by appropriation to private use of that which belongs to the public. - Also spelled pourpresture. purprise (pdr-prIz), vb. [Law French) Hist. To encroach on land illegally; to make a purpresture. purse, n. A sum of money available to the winner of a contest or event; a prize. lCases: Gaming purser. A person in charge of accounts and documents on a ship. [Cases: ShippingC=74.] purse-snatching. The stealing of a handbag or other similar item by seizing or grabbing it from a victim's physical possession and then fleeing, often without harm or threat of harm to the victim.• Purse-snatch­ ing is usu. a type of larceny. But if the perpetrator uses great force to take the bag or injures or threatens to injure the victim, it may instead be classified as a robbery. Cf. LARCENY; ROBBERY. [Cases: Larceny C:J 19; Robbery C= 6.) pursuant to. (16c) 1. In compliance with; in accordance with; under <she filed the motion pursuant to the court's order>. 2. As authorized by; under . 3. In carrying out . pursuer. Civil & Scots law. A plaintiff. pursuit. (14c) 1. An occupation or pastime. 2. The act of chasing to overtake or apprehend. See FRESH PURSUIT.

pursuit of happiness. (18c) The principle announced in the Declaration ofIndependence that a person should be allowed to pursue the person's desires (esp. in regard to an occupation) without unjustified inter­ terence by the government. [Cases: Constitutional Law (;::::> 11 07.]

1356

pur tant que (pdr tant kyoo or poor tahn kd). [Law French] Forasmuch as; because; for the purpose of. purus idiota (pyoor- fal-sid- ee-;). [Latin "Falcid­ ian fourth"] See FALCIDIAN PORTION, quarta Trebellianica (kwor-t;> tr;)-bel-ee-an-;>-b). [Latin "the quarter due under Trebellianus's senatu5 consultum"] Hist. The fourth portion that an heir could retain from a succession after transferring the succession as directed by the testator under a fideicom­ missum. - Also termed quarta Trebelliana (tr<J-bel-ee­ ay-n;> or -an-;». Cf. FALCIDIAN PORTION. quarter, n. 1. In the law of war, the act of showing mercy to a defeated enemy by sparing lives and accepting a surrender . 2. See quarter section under SECTION. quarter day. See DAY. quartering, n. Hist. 1. The diViding of a criminal's body into quarters after execution, esp. as part of the pun­ ishment for a crime such as high treason. See HANGED, DRAWN, AND QUARTERED. 2. The furnishing of living quarters to members of the military.• In the United States, a homeowner's consent is required before soldiers may be quartered in a private home during peacetime.

During wartime, soldiers may be quartered in private homes only as prescribed by law. The Third Amendment generally protects U.S. citizens from being forced to use their homes to quarter soldiers. U.S. Const. amend. III. 3. The dividing of a shield into four parts to show four different coats of arms. quarter, vb, quarterly report. A financial report issued by a cor­ poration (and by most mutual funds and investment managers) every three months. quartermaster. See TREASURER. quarter seal. See SEAL. quarter section. See SECTION. quarter session. See SESSION (1). Quarter Sessions Court. See COURT OF GENERAL QUARTER SESSIONS OF THE PEACE.

quarters of coverage. The number of quarterly payments made by a person into the social-security fund as a basis for determining the person's entitlement to benefits. [Cases: Social Security and Public Welfare 135, 140.5.) quarto die post (kwor-toh dI-ee pohst), n. [Law Latin "on the fourth day after"] The defendant's appearance day, being four days (inclusive) from the return of the writ. quash (kwahsh), vb. (13c) 1. To annul or make void; to terminate . 2. To suppress or subdue; to crush . quashal (kwahsh-;>l), n. The act of quashing something . [Cases: Witnesses C-~ 16.] quasi (kway-sI or kway-zI also kwah-zee). [Latin "as if"] (15c) Seemingly but not actually; in some sense or degree; resembling; nearly. A Latin word frequently used in the civil law, and often prefixed to English words. It is not a very definite word. It marks the resemblance, and supposes a little dif­ ference, between two objects, and in legal phraseology the term is used to indicate that one subject resembles another, with which it is compared, in certain character· istics, but that there are also intrinsic and material differ­ ences between them. It negatives the idea of identity, but implies a strong superficial analogy, and points out that the conceptions are sufficiently similar for one to be classed as the equal of the other." 74 c.J.S. Quasi. at 2 (1951). "QUASI.

quasi-admission. See ADMISSION (1). quasi-affinity. See AFFINITY. quasi-autonomous nongovernmental organization. A semipublic administrative body (esp. in the United Kingdom) having some members appointed and financed by, but not answerable to, the government, such as a tourist authority, a university-grants com­ mission, a price-and-wage commission, a prison or parole board, or a medical-health advisory panel. • This term is more commonly written as an acronym, quango (kwang-goh), without capital letters. quasi committee of the whole. See COMMITTEE.

quasi-community property

quasi-community property. See COMMU:-266-284.J direct question. (17c) A question asked of a witness during direct examination. [Cases; Witnesses C=> 236.] hypothetical question. See HYPOTHETICAL QUESTION. leading question. See LEADING QUESTION. 2. An issue in controversy; a matter to be determined.

certified question. See CERTIFIED QUESTION.

federal question. See FEDERAL QUESTION.

judicial question. See JUDICIAL QUESTION.

mixed question. See MIXED QUESTION.

mixed question oflaw andfact. See MIXED QUESTION

OF tAW AND FACT. nonjusticiable question. See POUTICAt QUESTION. political question. See POUTICAL QUESTION. question offact. See QUESTION OF FACT. question oflaw. See QUESTION OF LAW. ultimate question. See ultimate issue under ISSUE (1). 3. Parliamentary law. A motion that the chair has stated for a meeting's consideration in a form that the meeting can adopt or reject; a peDding motion. - A question is technically only a "motion" until the chair states it for the meeting's consideration. But for most purposes, the parliamentary terms "motion" and "question" are interchangeable. See MOTION (2); PUT THE QUESTION; STATE THE QUESTION. privileged question. A privileged motion that that the chair has stated for a meeting's consideration. See privileged motion under MOTION (2). Cf. question of privilege. question ofconsideration. See OBJECTION (2). question of information. See pOint of information under POINT. question oforder. See point oforder under POINT. question ofprivilege. Any question that concerns the deliberative assembly's or a member's rights or privi­ leges. See PRIVILEGE (6); RAISE AQUESTION OF PRIVI­ LEGE. Cf. privileged question. question-and-answer. (17c) 1. 1he portion of a deposi­ tion or trial transcript in which evidence is developed through a series of questions asked by the lawyer and answered by the witness. - Abbr. Q-and-A. 2. Ihe method for developing evidence during a deposition or at trial, requiring the witness to answer the exam­ ining lawyer's questions, without offering unsolicited information. [Cases: Witnesses C=>236, 247.] 3. Ihe method of instruction used in many law-school classes, in which the professor asks questions of one or more

1366

students and then follows up each answer with another question. Also termed Socratic method. See SOCRATIC METHOD; QUESTION-AND-ANSWER METHOD. question of consideration. See OBJECTION (2). question offact. (17c) 1. An issue that has not been pre­ determined and authoritatively answered by the law. _ An example is whether a particular criminal defen­ dant is guilty of an offense or whether a contractor has delayed unreasonably in constructing a building. 2. An issue that does not involve what the law is on a given point. 3. A disputed issue to be resolved by the jury in a jury trial or by the judge in a bench trial. - Also termed fact question. See FACT-FINDER. 4. An issue capable of being answered by way of demonstration, as opposed to a question of unverifiable opinion. question of law. (l7c) 1. An issue to be decided by the judge, concerning the application or interpretation of the law . 2. A question that the law itself has authOritatively answered, so that the court may not answer it as a matter of discretion . 3. An issue about what the law is on a particular point; an issue in which parties argue about, and the court must decide, what the true rule oflaw is . 4. An issue that, although it may turn on a factual point, is reserved for the court and excluded from the jury; an issue that is exclUSively within the province of the judge and not the jury <whether a contractual ambiguity exists is a question oflaw>. Also termed legal question; law question. question of privilege. See QUESTION (3). questman. Hist. 1. An instigator of a lawsuit or pros­ ecution. 2. A person who was chosen to inquire into abuses, esp. those relating to weights and measures. 3. A churchwarden; SlDESMAN. - Also termed quest­ monger. questus est nobis (kwes-tas est noh-bis), n. [Law Latin "hath complained to us"] Hist. By 1287, a writ against someone who continued a nuisance that existed before inheritance or purchase. - The former law provided recovery only against the party who had first caused the nuisance. quia (kwl-a or kwee-d). [Latin] Hist. Because; whereas. - This term was used to point out the consideration in a conveyance. quia alimenta liberis non debentur nisi in subsidium (kWI-d or kwee-;l al-i-men-ta lib-ar-is non di-ben-t;lr nI-SI in s;lb-sid-ee-;lm). [Law Latin] Scots law. Because aliment (alimony) is not due to children except in aid. ­ A parent was not required to support a child for whom another source, such as a separate estate, provided. Quia Emptores (kwl-a or kwee-a emp-tor-eez). [Latin "since purchasers"] Hist. A statute giving fee-sim­ ple tenants (other than those holding directly of the Crown) the power to alienate their land and bind the transferee to perform the same services for the lord

quiet-title action

1367

as the transferor had been obliged to perform. _ The statute, enacted in 1290, tended to concentrate feudal lordships in the Crown by eliminating multiple layers of fealty. 18 Edw., ch. 1. - Also termed Quia Emptores Terrarum. "Edward I and his lords wished, for political reasons, to prevent the growth of subinfeudation, and in 1290 the Statute Quia Emptores was enacted. It took its name from 'Since purchasers ... .''' the beginning of its preamble L.B. Curzon, English Legal History 300 (2d ed, 1979),

quia erronice emanavit (kwH) i-roh-n. 3. Taxable 26, 193.] union rate. The wage scale set by a union as a minimum wage to be paid and usu. expressed as an hourly rate or piecework rate. 3. INTEREST RATE . 4. PREMIUM RATE. 5. English law. A sum assessed or payable to the local government in the place where a ratepayer dwells or has property. See RATEPAYER. rate, vb. rate base. The investment amount or property value on which a company, esp. a public utility, is allowed to earn a particular rate of return. [Cases: Public Utili­ ties (;::::> 124.] rate-base value. See net book cost under COST (1). rate of interest. See INTEREST RATE. rate of return. The annual income from an invest­ ment, expressed as a percentage ofthe investment. See RETURN

(5).

fair rate ofreturn. The amount of profit that a pUblic utility is permitted to earn, as determined by a public utility commission. ICases: Public Utilities Cr-;:, 129.)

ratepayer

internal rate ofreturn. Accounting. A discounted-cash­ flow method of evaluating a long-term project, used to determine the actual return on an investment. Abbr. IRR. ratepayer. English law. A person who pays local taxes; a person liable to pay rates. See RATE (4). ratification, n. (I5c) 1. Adoption or enactment, esp. where the act is the last in a series of necessary steps or consents .• In this sense, ratification runs the gamut of a formal approval of a constitutional amendment to rank-and-file approval ofa labor union's collective-bar­ gaining agreement with management. See ADOPTION (5). Cf. SANCTION (1). 2. Confirmation and acceptance of a previous act, thereby making the act valid from the moment it was done .• This sense includes action taken by the legislature to make binding a treaty negotiated by the executive. [Cases; Estoppel ~90(1).] 3. Contracts. A person's binding adoption of an act already completed but either not done in a way that originally produced a legal obligation or done by a third party having at the time no authority to act as the person's agent . - Often shortened to ratio. PI. rationes decidendi (ray-shee-oh-neez des-~­ den-dr). Cf. OBITER DICTUM; HOLDING (1). "The phrase 'the mtio decidendi of a case' is slightly ambig· uous. It may mean either (1) the rule that the judge who decided the case intended to lay down and apply to the facts, or (2) the rule that a later court concedes him to have had the power to lay down." Glanville Williams, Learning the Law 75 (11th ed. 1982). 'There are ... two steps involved in the ascertainment of the ratio decidendi . ... First, it is necessary to determine all the facts of the case as seen by the judge; secondly, it is necessary to discover which of those facts were treated as material by the judge." Rupert Cross & j.W. Harris, Prec­ edent in English Law 65-66 (4th ed. 1991).

ratio legis (ray-shee-oh lee-j~s), n. [Latin] The reason or purpose for making a law . Also termed ratio juris. rationabiIe estoverium (rash-[ee]-~-nay-b~-lee es-t5.) rebut, vb. (14c) To refute, oppose, or counteract (some­ thing) by evidence, argument, or contrary proof 683; Federal Civil Procedure (;::::>2015; Trial (;::::>62.) "Rebuttal is the hardest argument to make in any court. In the Supreme Court and in most courts of appeals, petitioner has to work hard to save any time at all for rebuttal. In the Supreme Court, rebuttal time comes directly out of the 30 minutes allotted to petitioner's side and, if the justices keep asking questions that use up petitioner's time, the case is submitted without rebuttal. Many courts of appeals permit counsel to reserve time for rebuttal, either through the clerk in advance of the argument or at the beginning of the argument itself. It is the rare court of appeals panel that does not permit counsel at least one minute of rebuttal, even when counsel's time has expired." David C. Frederick, Supreme Court and Appellate Advocacy § 7.3, at 178 (2003) (dealing only with oral rebuttals on appeal).

3. The arguments contained in a reply brief. See reply brief under BRIEF. [Cases: Appeal and Error C=' 762; Criminal Law C-=> 1130(6); Federal Courts (~:::::>714.] rebuttal evidence. See EVIDENCE. rebuttal witness. See WITNESS. rebutter. (16c) 1. Common-law pleading. The defendant's answer to a plaintiff's surrejOinder; the pleading that followed the rejOinder and surrejoinder, and that might in turn be answered by the surrebutter. [Cases: Pleading 185.)2. One who rebuts. rebutting evidence. See rebuttal evidence under EVIDENCE.

recall, n. (1902) 1. Removal of a public official from office by popular vote. [Cases: Officers and Public Employees (;:'.;::)70.7.J 2. A manufacturer's request to consumers for the return of defective products for repair or replace­ ment. [Cases: Insurance (;::::>2278(24); Products Liabil­ ity~-:>144.J 3. Revocation of a judgment for factual or legal reasons. recall, vb. recall election. See ELECTION (3).

recall exclusion. See sistership exclusion under EXCLU­ SION

(3).

recall ofmandate. The extraordinary action by an appel­ late court ofwithdrawing the order it issued to the trial court upon deciding an appeal, usu. after the deadline has passed for the losing party to seek a rehearing. _ Because this action can interfere with trial-court pro­ ceedings on remand, and also because it clouds the waters that repose (the finality of a judgment) is meant to clear, courts are reluctant to use the power. But they will use it to correct clerical errors or to remedy a fraud on the court during the appeal. It has also been used when the original mandate would result in a grave injustice. See MANDATE (1). [Cases: Appeal and Error C::J 1218; Criminal Law (;:=> 1193; Federal Courts 956.1.] recant (ri-kant), vb. (l6c) 1. To withdraw or renounce (prior statements or testimony) formally or publicly . 2. A written acknowledgment that something has been received . accountable receipt. A receipt in which a person admits that goods or money were delivered to the person and that the person is obliged to deliver all or part of the goods or money to a third person. interim receipt. The written acknowledgment of a premium paid on an insurance policy that is pending final approval. [Cases: Insurance C=) 1746.] warehouse receipt. Sec WAREHOCSE RECEIPT. 3. (usu, pl.) Something received; INCOME <post the daily receipts in the ledger>. receipt, vb. (18c) 1. To acknowledge in writing the receipt of (something, esp. money) . 2. To give a receipt for (something, esp. money) . receipt clause. In a conveyancing document, a clause that acts as a receipt for the consideration given. _ This clause typically appears to avoid the necessity of a separate receipt. receiptor (ri-see-tdr). (1814) A person who receives from a sheriff another's property seized in garnishment and agrees to return the property upon demand or execu­ tion. [Cases: Execution (;:=> 150.]

receiver general. A public official in charge of a govern­ receivable, adj. 1. Capable ofbeing admitted or accepted ment's receipts and treasury. PI. receivers general. . 2. Awaiting receipt of payment . 3. Subject to a call for payment receiver's certificate. Bankruptcy. An instrument issued . by a receiver as evidence that the holder is entitled to receivable, n. (14c) An amount owed, esp. by a business's ! receive payment from funds controlled by the bank­ ruptcy court. [Cases: Bankruptcy (;:;'::'3025.1,3035.1.] customer. See account receivable under ACCOUNT. receivership. (I5c) 1. The state or condition of being in unrealized receivable. (1957) An amount earned but not yet received. _ Unrealized receivables have no the control of a receiver. [Cases: Corporations C::~'552, 621(.5); Receivers C=::, 1.] 2. 'The position or function of income-tax basis for cash-basis taxpayers. [Cases: Internal Revenue (;:;::'3931,3935.] being a receiver appointed by a court or under a statute. 3. A proceeding in which a court appoints a receiver. receiver. (18c) 1. A disinterested person appointed by a court, or by a corporation or other person, for the ancillary receivership. A receivership in which a protection or collection of property that is the subject further administrative proceeding is appointed in another state to help the principal receivership, of diverse claims (for example, because it belongs to a [Cases: Corporations C=>'686; Receivers C=>206.] bankrupt or is otherwise being litigated). Cf. LIQUIDA­ TOR. [Cases: Corporations C=>552, 621(.5); Receivers dry receivership. A receivership in which there is no 81.] equity available to pay general creditors. [Cases: ancillary receiver. One who is appointed as a receiver Receivers 163.] in a particular area to help a foreign receiver collect receivership estate. The totality of the interests that the the assets ofan insolvent corporation or other entity. receivers of an association in one or more states are [Cases: Corporations C=>686.] appointed to protect. "An ancillary receiver of a corporation or unincorporated receiving, n. See RECEIVING STOLEN PROPERTY. association may be appointed (a) by a competent court of a state in which there are assets of the corporation or receiving order. See ORDER (2). unincorporated association at the time of the commence­ receiving state. See STATE. ment of the action for the appointment of such receiver, or (b) in the case of a corporation, by a competent court receiving stolen property. (1847) The criminal offense of the state of incorporation .... The purpose of such an of acquiring or controlling property known to have ancillary receivership is to aid the foreign primary receiver· been stolen by another person. _ Some jurisdictions ship in the collection and taking charge of assets of the estate being administered." 66 Am. Jur. 2d Receivers § 436, require the additional element of wrongful intent. In at 239 (1973), some jurisdictions it is a felony, but in others it is either general receiver. See principal receiver. a felony or a misdemeanor depending on the value of the property. See Model Penal Code §§ 223.1, 223.6. judgment receiver. A receiver who collects or diverts Sometimes shortened to receiving. - Also termed funds from a judgment debtor to the creditor. _ A receiving stolen goods. See FENCE (1). [Cases: Receiving judgment receiver is usu. appointed when it is difficult Stolen Goods C=> 1.] to enforce a judgment in any other manner. - Also termed receiver in aid ofexecution. [Cases: Execution recens insecutio (ree-senz in-sd-kyoo-shee-oh). [Latin (;:::::)404.] "fresh pursuit"] Hist. Pursuit of a thief immediately after discovery of the theft. See FRESH PURSUIT. local receiver. Conflict oflaws. A receiver appointed in the state where property is located or where an act is receptator (ree-sep-tay-tor or -t;}r). [Latin fro receptare done. [Cases: Receivers C=>206.] "to harbor (a criminal or the proceeds of crime)"] Scots law, 1. A harborer of a felon. 2. A receiver of stolen principal receiver. A receiver who is primarily respon­ property. sible for the receivership estate .• A principal receiver may ordinarily (1) act outside the state ofappointment, reception. (1931) The adoption in whole or in part ofthe (2) sue in a foreign court, (3) exercise broad powers of law of one jurisdiction by another jurisdiction. - In the assignment, and (4) handle all distributions. - Also legal idiom, it is most common to speak of the recep­ termed primary receiver; general receiver; original tion of Roman law. receiver. [Cases: Receivers (;:::J205-21O.] "In many parts of Europe monarchs encouraged a'recep, tion' of Roman law at the expense of medieval custom· receiver in aid ofexecution. See judgment receiver. ary systems. On the continent-in France, Holland, and Germany-the results of the reception of Roman law have statutory receiver. A receiver whose appointment is tended to be permanent; the continental jurist in the twen­ provided for in a statute. tieth century studies Roman law to grasp the jurisprudence 2. Hist. An officer in the royal household who collected underlying modern codes. And in the British Isles, the law of Scotland now contains so much borrowing from Roman revenues and disbursed them in a lump sum to the trea­ law that there, too the road to legal practice leads through surer, and who also acted as an attorney with the power study of the corpus of Roman civil law compiled atJustini· to appear in any court in England. - The monarch and an's direction. But a reception of Roman law never occurred his or her consort each had a receiver, thus the full title in England." Arthur R. Hogue, Origins o(the Common Law 242 (1966). was King's Receiver or Queen's Receiver.

receptitious (ree-sep-tish-;lS), adj. Roman law. 1. (Of a dowry) returnable by agreement to the donor upon the dissolution of the marriage. 2. (Of property) retained by the wife and not included in the dowry. receptus (ri-sep-t. - Also termed habitual offender; habitual criminal; repeater; career criminal; prior and persistent offender. [Cases: Sentencing and Punishment (;:;:) 1200.] reciprocal (ri-sip-ra-k;)l), adj. (16c) 1. Directed by each toward the other or others; MUTUAL . 2. BILATERAL . 3. Correspond­ ing; equivalent . reciprocal contract. See bilateral contract under CONTRACT.

reciprocal dealing. A business arrangement in which a buyer having greater economic power than a seller agrees to buy something from the seller only if the seller buys something in return. _ Reciprocal dealing usu. violates antitrust laws. - Also termed reciprocal-deal­ ing arrangement. Cf. TYING ARRANGEMENT. reciprocal discovery. See reverse Jencks material under JENCKS MATERIAL.

reciprocal exchange. An association whose members exchange contracts and pay premiums through an attorney-in-fact for the purpose of insuring themselves and each other. _ A reciprocal exchange can consist of individuals, partnerships, trustees, or corporations, but the exchange itself is unincorporated. Also termed interinsurance exchange; reciprocal insurance exchange; reciprocal interinsurance exchange. See reCiprocal insur­ ance under INSURANCE; EXCHANGE (5). [Cases: Insur­ ance (;:;:, 1204.] reciprocal insurance. See INSURANCE. reciprocal insurance exchange. See RECIPROCAL EXCHANGE.

reciprocal interinsurance exchange. See RECIPROCAL EXCHANGE.

reciprocal negative easement. See EASEMENT. reciprocal trade agreement. An agreement between two countries providing for the exchange ofgoods between them at lower tariffs and better terms than exist between one of the countries and other countries. reciprocal trust. See TRUST. reciprocal will. See mutual will under WILL. reciprocity (res-663;

Federal Civil Procedure (;::J2011; Records (;::J66; Trial 2. A revised or edited document. - redac­ tional, ad}. - redact, vb. red-cow case. See WHITEHORSE CASE. reddendo (ri-den-doh). Scots law. 1. A clause in a charter specifying a duty, rent, or service due from a vassal to a superior. 2. The duty or service specified in this clause; feu duty. reddendo singulasingulis (ri-den-doh sing-gy3001,3053.] redemption agreement. See STOCK-REDEMPTION AGREE­

redimere (ri-dim-a-ree), vb. [Latin] 1. To buy back; repurchase. 2. To obtain the release of by payment; ransom. redirect examination. (1865) A second direct exami­ nation, after cross-examination, the scope ordinarily being limited to matters covered during cross-exami­ nation. - Often shortened to redirect. - Also termed (in England) reexamination. See DIRECT EXAMINATION. [Cases: Witnesses (:::::J285.] rediscount, n. 1. The act or process ofdiscounting a nego­ tiable instrument that has alreadv been discounted, as by a bank. 2. (usu. pl.) A negoti~ble instrument that has been discounted a second time. See DISCOUNT. ­ rediscount, vb. rediscount rate. See INTEREST RATE. redisseisin (ree-dis-see-zin), n. (16c) 1. A disseisin by one who has already dispossessed the same person of the same estate. 2. A writ to recover an estate that has been dispossessed by redisseisin. - Also spelled red is­ seizin. See DISSEISIN. - redisseise (ree-dis-seez), vb. redisseisina. See DE REDISSEISINA. redistribution. The act or process of distributing some­ thing again or anew . redistrict, vb. To organize into new districts, esp. legis­ lative ones; reapportion. [Cases: States (>27; United States 10.] redistricting. See REAPPORTIONMENT. reditus (red-a-tas), n. [Latin "return"] A revenue or return; esp. rent. Also spelled redditus. reditus albi (al-bI). [Latin "white return"] Rent payable in silver or other money. reditus capitales (kap-a-tay-Ieez). [Latin "capital return"] Chief rent paid by a freeholder to go quit of all other services. See QUIT RENT. reditus nigri (nig-n). [Latin "black return"] Rent payable in goods or labor rather than in money. reditus quieti (kwl-ee-tI). [Latin "qUiet return"] See

MENT.

redemptioner. A person who redeems; esp. one who redeems real property under the equity of redemption or the right ofredemption. See EQUITY OF REDEMPTION; STATUTORY RIGHT OF REDEMPTION.

redemption period. The statutory period during which a defaulting mortgagor may recover property after a foreclosure or tax sale by paying the outstanding debt or charges. [Cases: Mortgages (;=>599; Taxation 3011.] redemption price. See PRICE. redemptio operis (ri-demp-shee-oh op-a-ris), n. [Latin "'redemption of work" J Civil law. A contract in which a worker agrees to perform labor or services for a speci­ fied price. Cf. locatio opera rum under LOCATIO. redemptor (ri-demp-tar), n. Roman law. A contractor. See CONDUCTOR (1). redeundo (ree-dee-;m-doh). [Latin] Returning; in return­ ing; while returning. redevance (ruu-da-vahns). [French] Hist. Dues payable by a tenant to the lord, not necessarily in money. red herring. (1884) 1. An irrelevant legal or factual issue, usu. intended to distract or mislead . 2. See preliminary prospectus under PROSPECTUS.

red-herring prospectus. See preliminary prospectus under PROSPECTUS. redhibere (red-hi-beer-ee), vb. [Latin] Civil law. 1. To return (a defective purchase) to the seller. 2. (Of a seller) to take back (a defective purchase). redhibition (red-[h]i-bish-an), n. Civil law. The voidance ofa sale as the result ofan action brought on account of some defect in a thing sold, on grounds that the detect renders the thing either useless or so imperfect that the buyer would not have originally purchased it. La. Civ. Code art. 2531. [Cases: Sales C~::) 119.] redhibitory (red-hib-a-tor-ee), adj. redhibitory action. See ACTION (4). redhibitory defect. Civil law. A fault or imperfection in something sold, as a result of which the buyer may return the item and demand back the purchase price. La. Civ. Code art. 2520. Also termed redhibitory vice. [Cases: Sales (;::::-'" 119.]

QUIT RENT.

I

reditus siccus (sik-as). [Latin "dry return"] Rent seck. See rent seck under RENT (2). red-light abatement laws. An ordinance or statute intended to eliminate and prohibit sex-oriented busi­ nesses, usu. on grounds that they are public nuisances. - Brothels were once typically identified by a red light displayed in a window or in the front yard. redlining, n. (1973) 1. Credit discrimination (usu. unlawful discrimination) by an institution that refuses to provide loans or insurance on properties in areas that are considered to be poor financial risks or to the people who live in those areas. [Cases: Civil Rights c:::=-", 1041, 1079; Consumer Credit (>31.]2. The process, usu. automated, ofcreating, for an existing document, an interim version that shows, through strike-outs and other typographical features, all deletions and inser­ tions made in the most recent revision. redline, vb.

redraft

redraft, n. (l7c) A second negotiable instrument offered by the drawer after the first instrument has been dis­ honored. - redraft, vb. redress (ri-dres or ree-dres), n. (14c) 1. Relief; remedy <money damages, as opposed to equitable relief, is the 3.] 2. only redress available>. [Cases: Damages A means of seeking relief or remedy . redressable, adj. redress (ri-dres), vb. penal redress. A form of penal liability requiring full compensation of the injured person as an instru­ ment for punishing the offender; compensation paid to the injured person for the full value of the loss (an amount that may far exceed the wrongdoer's benefit). See RESTITUTION. restitutionary redress. Money paid to one who has been injured, the amount being the pecuniary value of the benefit to the wrongdoer. See RESTITUTION. red tape. A bureaucratic procedure required to be followed before official action can be taken; esp. rigid adherence to time-consuming rules and regulations; excessive bureaucracy. _ The phrase originally referred to the red ribbons that lawyers and government officials once used to tie their papers together. redubber. Rist. One who buys stolen cloth and redyes it or makes it into something so that the cloth is unrec­ ognizable. reductio ad absurdum (ri-d~k-shee-oh or ri-d~k-tee-oh ad ab-s~r-d;}m). [Latin "reduction to the absurd"] (18c) In logic, disproof of an argument by showing that it leads to a ridiculous conclusion. reduction improbation. See IMPROBATION. reduction in force. See LAYOFF. reduction to practice. Patents. The embodiment of the concept of an invention, either by physical construction and operation or by filing a patent application with a disclosure adequate to teach a person reasonably skilled in the art how to make and work the invention without undue experimentation. - The date of reduction to practice is critical in determining priority between inventors competing for a patent on the same inven­ tion. See INVENTION. [Cases: Patents C--::>90(5).] actual reduction to practice. The empirical demonstra­ tion that an invention performs its intended purpose and is therefore complete for patent purposes; the as by testing it - to use of an idea or invention establish that the idea or invention will perform its intended purpose. Brunswick Corp. v. U.S., 34 Fed. Cl. 532,584 (1995). constructive reduction to practice. The documented demonstration that an invention will perform its intended purpose, contained in a patent application that provides enough detail that a person skilled in the art could make and test the invention; the filing of a patent application for an invention or design. Bruns­ wick Corp. v. U. S., 34 Fed. Cl. 532, 584 (1995). [Cases: Patents (;::::J90(5).j

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vicarious reduction to practice. A doctrine that treats one party's actual reduction to practice of an inven­ tion as the opposing (usu. complaining) party's actual reduction to practice. - In a two-party interference, proofofderivation is usu. sufficient; showing an actual reduction to practice is unnecessary. The doctrine is more important in a three-party interference. [Cases: Patents 504-543.] refugeeism. The state of being a refugee. refund, n. 1. The return of money to a person who overpaid, such as a taxpayer who overestimated tax liability or whose employer withheld too much tax from earnings. [Cases: Internal Revenue . 2. An opportunity to accept or reject something before it is offered to others; the right or privilege of haVing this opportunity <she promised her friend the first refusal on her house>. See RIGHT OF FIRST REFUSAL [Cases: Contracts 16.5; Sales C=24; Vendor and Purchaser C= 18(.5).] refusal to deal. A company's decision not to do business with another company.• A business has the right to refuse to deal only if it is not accompanied by an illegal restraint of trade. [Cases: Antitrust and Trade Regula­ tion . 5. To file (a new security issue) with the Securities and Exchange Commission or a similar state agency . [Cases: Securi­ ties Regulation (;:::::> 11.10-11.50.] registered agent. See AGENT (2). registered bond. 1. See BOND (2). 2. See BOND (3). registered broker. See BROKER. registered check. See CHECK. registered corporation. See CORPORATION. registered dealer. See DEALER. registered mail. See MAIL. registered mark. See registered trademark under TRADE­ MARK. registered offering. See OFFERING. registered organization. An organization created under state or federal law, for which the state or federal gov­ ernment must maintain a public record showing that the organization has been duly organized. UCC § 9-1D2(a)(47).

registered patent agent. See patent agent under AGENT (2). registered public offering. See registered offering under OFFERING. registered representative. See REPRESENTATIVB. registered security. See SECURITY. registered stock. See registered security under SECURITY. registered tonnage. See REGISTER TONNAGE. registered trademark. See TRADEMARK. registered voter. See VOTER. register in bankruptcy. See referee in bankruptcy under REFEREE. register of actions. See REGISTER (3). Register of Copyrights. The federal official who is in charge of the U.S. Copyright Office, which issues regulations and processes applications for copyright registration. - Also termed (erroneously) Registrar of Copyrights. [Cases: Copyrights and Intellectual Property (;:::::>50.30.] register of deeds. See REGISTER (1). register ofland office. See REGISTER (1). register of ships. Maritime law. A record kept by a customs collector containing the names and owners of commercial vessels and other key information about the vessels. _ When a ship logs in with customs, it receives a certificate of registry. Cf. REGISTRY (2). [Cases: Shipping Register of the Treasury. An officer ofthe U.S. Treasury whose duty is to keep accounts of receipts and expen­ ditures of public money, to record public debts, to preserve adjusted accounts with vouchers and certifi­ cates, to record warrants drawn on the Treasury, to sign and issue government securities, and to supervise the registry of vessels under federallaw. 31 USCA § 161. register of wills. See REGISTER (1). register'S court. See COURT. register tonnage. The volume of a vessel available for commercial use, officially measured and entered in a record for purposes of taxation. - Also termed regis­

tered tonnage. registrant. (1890) One who registers; esp., one who reg­ isters something for the purpose of securing a right or privilege granted by law upon official registration. registrar. (l7c) A person who keeps official records; esp., a school official who maintains academic and enroll­ ment records. Cf. REGISTER (1). registrarii liber (rej-d-strair-ee-I h-b..r). [LatinJ Hist. The register's book in chancery, containing all decrees. Abbr. reg. lib. registrarius (rej-;:J-strair-ee-;:Js). [Latin] Hist. A registrar or register; a notary. Registrar of Copyrights. See REGISTER OF COPY­ RIGHTS.

regula

1397

registrar of deeds. See register ofdeeds under REGISTER (1).

registration, n. 1. The act of recording or enrolling . [Cases: Elections C=>95-119.] criminal registration. The requirement in some com­ munities that any felon who spends any time in the community must register his or her name with the police.• Since the late 19805, many states have adopted strict registration laws for convicted sex offenders. See MEGAN'S LAW. [Cases: Criminal Law C=> 1222.1; Mental Health C=>469.] special registration. Voter registration for a particular election only. 2. Securities. The complete process of preparing to sell a newly issued security to the public . [Cases: Securities Regulation 11.10-11.50.] register, vb. shelfregistration. Registration with the SEC of securi­ ties to be sold over time, the purpose being to avoid the delays and market uncertainties of individual registration. "It is generally contemplated that the entire allotment of securities covered by a registered offering will be made available for purchase on the effective date. This is not always the case, however. For example, insiders, promot­ ers or underwriters might receive securities directly from the issuer with an intent to resell at a later date.... [IJ t may be desirable to get a debt offering all ready to go but wait for a propitious moment to release it. These and other delayed offerings have led to what is known as shelf registration. In a shelf registration the registration state­ ment is filed but the securities are put on the shelf until the manner and date of the offering are determined." Thomas Lee Hazen, The Law of Securities Regulation § 3.8, at 119 (2d ed. 1994).

registration and community-notification law. See MEGAN'S LAW.

registration-based quorum. See QUORUM. registration rights. Securities. A securities owner's enti­ tlement to have the securities registered for public sale or to participate in a public sale or resale of securities by the issuer or by another securities owner. demand registration rights. A securities holder's right to force the issuing company to register all or part of the securities so that the holder can resell them. piggyback registration rights. A securities holder's option to require the issuing company to include all or part of the holder's securities in a registration of other securities of the same class when a third party, such as a lender, requests the registration. registration statement. A document containing detailed information required by the SEC for the public sale of corporate securities.• The statement includes the prospectus to be supplied to prospective buyers. See PROSPECTUS. [Cases: Securities Regulation C:::;25.10­ 25.35.J registration system. Patents. A patent system in which an invention is given patent protection when it is

registered, without being subjected to official exami­ nation.• The United States operated under a registra­ tion system from 1790 until 1793. Cf. EXAMINATION SYSTEM.

registrum brevium (ri-jis-trdm bree-vee-dm). [Latin) Hist. The register of writs. Abbr. reg. brev. registrum judicale (ri-jis-trdm joo-di-kay-Iee). [Latin] Hist. The register of judicial writs. Abbe. reg. judo registrum originale (ri-jis-tr 392.] Regulation A. An SEC regulation that exempts stock offerings of up to $5 million from certain registra­

tion requirements. [Cases: Securities Regulation IS.1S.J Regulation D. An SEC regulation that exempts certain stock offerings (such as those offered by private sale) from registration under the Securities Act of 1933. [Cases: Securities Regulation 18.11.] Regulation Fair Disclosure. An October 2000 SEC rule requiring companies to disclose material information to all investors at the same time.• The regulation is intended to prevent some investors from receiving advance information about earnings, mergers and acquisitions, product discoveries, changes in auditors, and any other information that a reasonable investor would consider in making an investment decision. ­ Often shortened to Regulation FD; Reg. FD. Regulation PD. See REGULATION FAIR DISCLOSURE. Regulation J. A Federal Reserve Board regulation that governs the collection of checks by and the transfer of funds through member banks. [Cases: Banks and Banking C= IS8.5, 356.] Regulation Q. A Federal Reserve Board regulation that sets interest-rate ceilings and regulates advertising of interest on savings accounts .• The Banking Act of 1933 is the basis of this regulation, which applies to all commercial banks. [Cases: Banks and Banking 132,359.] Regulation T. A Federal Reserve Board regulation that limits the amount of credit that a securities broker or dealer may extend to a customer, and that sets initial margin requirements and payment rules for securities transactions.• The credit limit and margin rules usu. require the customer to provide between 40 and 60% of the purchase price. [Cases: Securities Regulation 45.11.] Regulation U. A Federal Reserve Board regulation that limits the amount of credit that a bank may extend to a customer who buys or carries securities on margin. Securities Regulation C=45.26.] Regulation X. A HUD regulation that implements the provisions of the Real Estate Settlement Procedures Act. See REAL ESTATE SETTLEMENT PROCEDURES ACT. [Cases: Consumer Credit C:::>50.] Regulation Z. A Federal Reserve Board regulation that implements the provisions of the federal Consumer Credit Protection Act for member banks. See CONSUMER CREDIT PROTECTION ACT. [Cases: Consumer Credit 32,50,51.]

regulatory agency. See AGENCY (3). regulatory offense. See OFFENSE (1). regulatory-out clause. See FERC-OUT CLAUSE. regulatory search. See administrative search under SEARCH. rehabere facias seisinam. See HABERE FACIAS SEISINAM. rehabilitation, n. (1940) 1. Criminal law. The process of seeking to improve a criminal's character and outlook so that he or she can function in society without

reinsured

1399

committing other crimes . Cf. DETERRE~CE; RETRI­ BUTION (1). [Cases: Sentencing and Punishment 45.] 2. Evidence. The restoration of a witness's credibil­ ity after the witness has been impeached . ­ Also termed debtor rehabilitation. Cf. LIQUIDATION (4). [Cases: Bankruptcy(:=::: 3501,3671, 3701.] rehabilita­ tive, ad). - rehabilitate, vb. rehabilitative alimony. See ALIMOKY. rehearing. (I7c) A court's second or subsequent hearing of a case, a motion, or an appeal, usu. to consider an alleged error or omission in the court's judgment or opinion 576, 615.] employer-employee relationship. The association between a person employed to perform services in the affairs of another, who in turn has the right to control the person's physical conduct in the course of that service. - At common law, the relationship was termed "master-servant." That term is still used often, but "employer-employee" dominates in modern legal usage. [Cases: Labor and Employment C:::c 23.] fiducial relationship. See trust relationship. fiduciary relationship. (l846) A relationship in which one person is under a duty to act for the benefit of another on matters within the scope of the relation­ ship. _ Fiduciary relationships such as trustee­ beneficiary, guardian-ward, principal-agent, and attorney-client - require an unusually high degree of care. Fiduciary relationships usu. arise in one of four situations: (1) when one person places trust in the faithful integrity of another, who as a result gains superiority or influence over the first, (2) when one person assumes control and responsibility over another, (3) when one person has a duty to act for or give advice to another on matters falling within the scope of the relationship, or (4) when there is a specific relationship that has traditionally been rec­ ognized as involving fiduciary duties, as with a lawyer and a client or a stockbroker and a customer. - Also termed fidUciary relation; confidential relationship. Cf. special relationship. [Cases: Fraud 7.] master-servant relationship. The association between one in authority and a subordinate, esp. between an employer and an employee .• At common law, this term also designated the husband-wife relationship for purposes of analyzing loss of consortium, but that usage is now obsolete. Also termed employer-

1402

employee relationship. See MASTER AND SERVANT. [Cases: Labor and Employment parent-child relationship. The association between an adult and a minor in the adult's care, esp. an offspring or an adoptee. _ Ihe relationship imposes a high duty of care on the adult, including the duties to support, to rescue, to supervise and control, and to educate. lCases: Parent and Child professional relationship. An association that involves one person's reliance on the other person's specialized training. _ Examples include one's relationship with a lawyer, doctor, insurer, banker, and the like. special relationship. A nonfiduciary relationship having an element of trust, arising esp. when one person trusts another to exercise a reasonable degree of care and the other knows or ought to know about the reliance. Cf. fidUciary relationship. [Cases: Negli­ 220.] gence trust relationship. An association based on one person's reliance on the other person's specialized training. ­ Also termed fiducial relationship. [Cases: Fraud~"") 7.] relationship rape. See RAPE. relative, n. (14c) A person connected with another by blood or affinity; a person who is kin with another. ­ Also termed relation; kinsman. Cf. NEXT OF KIN (1). blood relative. (1863) One who shares an ancestor with another. collateral relative. (18c) A relative who is not in the direct line of descent, such as a cousin. [Cases: Descent and Distribution C:::c 32-41.] relative by affinity. (1821) A person who is related solely as the result of a marriage and not by blood or adoption. _ A person is a relative by affinity (1) to any blood or adopted relative ofhis or her spouse, and (2) to any spouse ofhis or her blood and adopted relatives. Based on the theory that marriage makes two people one, the relatives of each spouse become the other spouse's relatives by affinity. See AFFINITY. [Cases: Descent and Distribution C:::c21; Wills 502.] relative of the half blood. A collateral relative who shares one common ancestor. - A half brother, for example, is a relative ofthe halfblood. See half blood under BLOOD. [Cases: Descent and Distribution 35; Wills C::~506(2).] relative confession. See CONFESSION. relative-convenience doctrine. The principle that an injunction or other equitable relief may be denied if granting it would cause one party great inconvenience but denying it would cause the other party little or no inconvenience. [Cases: Injunction C:::c 12,23,138.15.] relative fact. See FACT. relative nullity. See NULLITY. relative power. See POWER (5).

1403

relative-responsibility statute. A law requiring adult children to support or prOVide basic necessities for their indigent elderly parents. [Cases: Parent and Child 4.] relative right. See RIGHT. relative simulated contract. See CONTRACT. relator. (17c) 1. The real party in interest in whose name a state or an attorney general brings a lawsuit. See EX REL. [Cases: Attorney General C:>9.] 2. lhe applicant for a writ, esp. a writ of mandamus, prohibition, or quo warranto. [Cases: Mandamus ~-:> 144; Prohibition C:> 19; Quo Warranto C:>30.]3. A person who furnishes information on which a civil or criminal case is based; an informer. relatrix (ri-Iay-triks). Archaic. A female relator. relaxatio (ree-Iak-say-shee-oh). [Law Latin] Hist. An instrument by which one relinquishes a right or claim to another; a release. release, n. (14c) 1. Liberation from an obligation, duty, or demand; the act of giving up a right or claim to the person against whom it could have been enforced . Also termed discharge; surrender. 2. The relinquishment or concession of a right, title, or claim . [Cases: Release C:> 1.] 3. A written discharge, acquit­ tance, or receipt; specif., a writing - either under seal or supported by sufficient consideration stating that one or more of the worker's contractual or compen­ satory rights are discharged <Jones Signed the release before accepting the cash from Hawkins>. _ Beneficia­ ries of an estate are routinely required to sign a release discharging the estate from further liability before the executor or administrator distributes the property. 4. A written authorization or permission for publication . 5. 1be act of conveying an estate or right to another, or oflegally disposi ng of it .6. A deed or document effecting a conveyance . See deed ofrelease under DEED. [Cases: Deeds 7. The action of freeing or the fact of being freed from restraint or confinement . 8. A document giving formal discharge from custody . - release, vb. conditional release. (lSc) 1. A discharge from an obli­ gation based on some condition, the failure of which defeats the release. 2. An early discharge of a prison inmate, who is then subject to the rules and regula­ tions of parole. [Cases: Prisons C:>24S.] marginal release. Property. An entry made in the margin of a property record by the recorder of deeds to show that a claim against the property has been satisfied.

releaser

mutual release. A simultaneous exchange of releases of legal claims held by two or more parties against each other. [Cases: Prisons C:> 14.] partial release. (lS37) A release of a portion of a creditor's claims against property; esp., a mortgag­ ee's release of specified parcels covered by a blanket mortgage. [Cases: Mortgages C:>310.] Pierringer release. A release that allows a defendant in a negligence suit to settle with the plaintiff for a share of the damages and insulates the settling defendant against contribution claims by nonsettling defen­ dants. - 'This type of release was first described in Pierringer v. Hoger, 124 N.W.2d 106, 110-11 (Wis. 1963). It is used in some jurisdictions that do not have contribution statutes. ~ Also spelled (incorrectly) Perringer release. [Cases: Release (~29(4).] study release. (1970) A program that allows a prisoner to be released for a few hours at a time to attend classes at a nearby college or technical institution. Also termed study furlough. [Cases: Convicts (;~2.] unconditional release. (1871) The final discharge of a prison inmate from custody. [Cases: Release C=) 14.J 9. Environmental law. The injection ofcontaminants or pollutants into the environment as a side effect ofoper­ ations such as manufacturing, mining, or farming. release clause. Real estate. 1. A blanket-mortgage provi­ sion that enables the mortgagor to obtain a release from the mortgage ofa specific portion of the property upon paying a specific (usu. more than pro rata) portion of the loan. - Mortgagees commonly include a clause that disallows a partial release if the mortgagor is in default on any part of the mortgage. [Cases: Mortgages 310.] 2. A purchase-agreement provision that allows a seller who has accepted an offer containing a contin­ gency to continue to market the property and accept other offers. _ Ifthe seller accepts another buyer's offer, the original buyer typically has a specified time (such as 72 hours) to waive the contingency (such as the sale of the buyer'S present house) or to release the seller from the agreement. [Cases: Vendor and Purchaser release deed. See DEED. releasee. 1. One who is released, either phYSically or by contractual discharge. [Cases: Release C:>26.]2. One to whom an estate is released. release of mortgage. A written document that discharges a mortgage upon full payment by the borrower and that is publicly recorded to show that the borrower has full equity in the property. [Cases: Mortgages C:>309, 314.] release on recoguizance. (1913) The pretrial release of an arrested person who promises, usu. in writing but without supplying a surety or posting bond, to appear for trial at a later date. - Abbr. ROR. - Also termed release on own recognizance. See RECOGNIZANCE. [Cases: Bail C=>40.] releaser. See RELEASOR.

release to uses

release to uses. (1830) Conveyance of property, by deed of release, by one party to another for the benefit of the grantor or a third party. See deed ofrelease under DEED; STATUTE OF USES; USE (4). [Cases: Deeds C=>23.] releasor. (17c) One who releases property or a claim to another. - Also spelled releaser. [Cases: Release C=> 1.] relegatio (rel-;l-gay-shee-oh), n. [ff. Latin relegare "to send away"] Roman law. Temporary or permanent ban­ ishment of a condemned criminal from Rome and the criminal's native province, without loss of citizenship or forfeiture of all the criminal's property. Cf. DEPOR­ TATIO.

"Relegatio. The expulsion of a citizen ordered either by an administrative act of a magistrate or by judgment in a criminal trial. In the latter case the relegatiowas sometimes combined with additional punishments, such as confis· cation of the whole or of a part of the property of the condemned person, loss of Roman Citizenship, confine­ ment in a certain place. A milder form of relegatio was the exclusion of the wrongdoer from residence in a specified territory. Illicit return was punished with the death penalty." Adolf Berger, Encyclopedic Dictionary of Roman Law 673 (1953).

relegation, n. (16c) 1. Banishment or exile, esp. a tem­ porary one. 2. Assignment or delegation. - relegate, vb. relevance. The fact, quality, or state of being relevant; relation or pertinence to the issue at hand. - Also termed relevancy. [Cases: Criminal Law C=> 338; Evidence C=>99.] relevancy. See RELEVANCE. relevant, adj. (16c) Logically connected and tending to prove or disprove a matter in issue; having appreciable probative value - that is, rationally tending to persuade people of the probability or possibility of some alleged fact. Cf. MATERIAL (2), (3). [Cases: Criminal Law C=> 338; Evidence C=>99.] "The word 'relevant' means that any two facts to which it is applied are so related to each other that according to the common course of events one either taken by itself or in connection with other facts proves or renders probable the past, present, or future existence or non-existence of the other." James Fitzjames Stephen, A Digest of the Law of Evidence 2 (4th ed. 1881).

relevant art. See ART. relevant evidence. See EVIDENCE. relevant market. See MARKET. reliance, n. (l7c) Dependence or trust by a person, esp. when combined with action based on that dependence or trust. - rely, vb. detrimental reliance. (1941) Reliance by one party on the acts or representations of another, causing a worsening of the first party's position .• Detrimental reliance may serve as a substitute for consideration and thus make a promise enforceable as a contract. See promissory estoppel under ESTOPPEL. [Cases: Estoppel C=>55, 85, 87.] reliance damages. See DAMAGES.

1404

reliance interest. See INTEREST (2). reliance-loss damages. See DAMAGES. reliance materials. See EXPERT-RELIANCE MATERIALS. relict (rel-ikt). Archaic. A surviving spouse; esp., a widow. relicta verificatione (ri-lik-t;l ver-;l-fi-kay-shee-oh-nee). [Latin "his pleading being abandoned"] Hist. A confes­ sion of judgment accompanied by a withdrawal of the plea. See COGNOVIT ACTIONEM. reliction (ri-lik-sh;ln). (17c) 1. A process by which a river or stream shifts its location, causing the recession of water from its bank. [Cases: Navigable Waters C=>44; Waters and Water Courses C=>93.] 2. The alteration of a boundary line because of the gradual removal of land bv a river or stream. See ACCRETION; DERELICTION (2). [C~ses: Navigable Waters C=>44; Waters and Water Courses C=>93.] relief. (14c) 1. A payment made by an heir of a feudal tenant to the feudal lord for the privilege of succeeding to the ancestor's tenancy. "A mesne lord could, upon the death of his tenant, accept the tenant's heir as tenant; but he was not required to do so. When he did accept his deceased tenant's heir as tenant, it was typically because the heir had paid the mesne lord a substantial sum (known as a relieD for the re-grant of the tenancy." Thomas F. Bergin & Paul G. Haskell, Preface to Estates in Land and Future Interests 8 (2d ed. 1984).

2. Aid or assistance given to those in need, esp., finan­ cial aid provided by the state. [Cases: Social Security and Public Welfare C=)4.]3. The redress or benefit, esp. equitable in nature (such as an injunction or specific performance), that a party asks of a court. - Also termed remedy. Cf. REMEDY. affirmative relief (1842) The relief sought by a defen­ dant by raising a counterclaim or cross-claim that could have been maintained independently of the plaintiff's action. alternative relief (1851) Judicial relief that is mutually exclusive with another form of judicial relief.• In pleading, a party may request alternative relief, as by asking for both specific performance and damages that would be averted by specific performance. Fed. R. Civ. P. 8(a). Cf. ELECTION OF REMEDIES. [Cases: Specific Performance C=> 127.] coercive relief (1886) Judicial relief, either legal or equitable, in the form of a personal command to the defendant that is enforceable by physical restraint. declaratory relief A unilateral request to a court to determine the legal status or ownership of a thing. [Cases: Declaratory Judgment C=>385.] extraordinary relief Judicial relief that exceeds what is typically or customarily granted but is warranted by the unique or extreme circumstances of a situation. • The types of extraordinary relief most frequently sought are injunctions and extraordinary writs, esp. mandamus. See INJUNCTION; MANDAMUS. Cf. extraor­ dinary writ under WRIT. [Cases: Courts C=>207.]

1405

interim relief. (1886) Relief that is granted on a pre­ liminary basis before an order finally disposing of a request for relief. therapeutic relief. (1889) The relief, esp. in a settlement, that requires the defendant to take remedial measures as opposed to paying damages.• An example is a defendant-corporation (in an employment-dis­ crimination suit) that agrees to undergo sensitivity training. Often shortened to therapeutics. religion. A system of faith and worship usu. involving belief in a supreme being and usu. containing a moral or ethical code; esp., such a system recognized and practiced by a particular church, sect, or denomination. • In construing the protections under the Establish­ ment Clause and the Free Exercise Clause, courts have interpreted the term religion quite broadly to include a wide variety of theistic and nontheistic beliefs. [Cases: Religious Societies 1.] state religion. A religion promoted, taught, or enforced by a government's acts to the exclusion of other reli­ gions. religion, freedom of. See FREEDOM OF RELIGION. Religion Clause. In the Bill of Rights, the provision stating that "Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof." U.S. Const. amend. 1. • Some writers use the plural form, "Religion Clauses," to mean both the Establishment Clause and the Free Exercise Clause, thus emphasizing the asserted common purpose ofthe two provisions. [Cases: Constitutional Law C==', 1290­ 1428.J religious-affinity fraud. See PRAUD. religious corporatiou. See CORPORATION. religious-exemption statute. See FAITH-HEALING EXEMPTION.

religious liberty. See LIBERTY. Religious Test Clause. The clause of the U.S. Constitu­ tion that prohibits the use of a religious test as a quali­ fication to serve in any office or public trust. U.S. Const. art. VI, par. 3, cl. 2. - Also termed No Religious Test Clause. relinquishment, n. (I5c) The abandonment of a right or thing. - relinquish, vb. reliqua (reJ-26.]3. Civil law. RECONDUCTION (1). rem. See IN REM. remainder. (lSc) Property. 1. A future interest arising in a third person that is, someone other than the estate's creator, its initial holder, or the heirs ofeither who is intended to take after the natural termination of the preceding estate .• For example, if a grant is "to A for life, and then to B," B's future interest is a remainder. Ifthere is only one preceding estate and the remainder vests on that estate's expiration, the remainder is also termed an executed estate. - Also termed remainder estate; estate in remainder. Cf. EXECUTORY INTEREST; REVERSION; POSSIBILITY OF REVERTER. [Cases: Remain­ ders (;=> 1.] "Whether a remainder is vested or contingent depends upon the language employed. If the conditional element is incorporated into the description of, or the gift to the remainder· man, then the remainder is contingent; but if. after words giving a vested interest, a clause is added divesting it, the remainder is vested. Thus, on a devise to A. for life, remainder to his children, but if any child dies in the lifetime of A. his share to go to those who survive, the share of each child is vested, subject to be divested by his death. But on a devise to A. for life, remainder to such of his children as survive him. the remainder is contingent." John Chipman Gray, The Rule Against Perpetuities 66 (1886). "Under the names of 'remainders' and 'executory limita­ tions,' various classes of interests in land could be created in expectancy. either at the Common Law or under the Statute of Uses. The differences between the two classes were highly technical; and the learning involved in acquir­ ing a knowledge of the rules of determining them [is] quite out of proportion to the value obtained." Edward Jenks, The Book of English Law 263 (P.S. Fairest ed., 6th ed. 1967).

accelerated remainder. (1901) A remainder that has passed to the remainderman, as when the gift to the preceding beneficiary fails. [Cases: Remainders

5.J alternative remainder. (1830) A remainder in which the disposition of property is to take effect only if another disposition does not take effect. charitable remainder. (1932) A remainder, usu. from a life estate, that is given to a charity; for example, "to Jane for life, and then to the American Red Cross. [Cases: Internal Revenue (;=>4172(3); Taxation 3328.] contingent remainder. (I8c) A remainder that is either given to an unascertained person or made subject to a condition precedent. • An example is "to A for life, and then, ifB has married before A dies, to B." Also termed executory remainder; remainder subject to a condition precedent. [Cases: Remainders 1, 4.)

(->

"Unlike a vested remainder, a contingent remainder is either subject to a condition precedent (in addition to the natural expiration of a prior estate), orowned by unascertainable persons, or both. But the contingent remainder, like the vested remainder, 'waits patiently' for possession. It is so created that it can become a present estate (if ever it does) immediately upon, and no sooner than, the natural expira­ tion of particular estates that stand in front of it and were created simultaneously with it." Thomas F. Bergin & Paul G. Haskell, Preface to Estates in Land and Future Interests 73 (2d ed. 1984).

1406

remainder bequest

cross-remainder. (I8c) A future interest that results when particular estates are given to two or more persons in different parcels of land, or in the same land in undivided shares, and the remainders of all the estates are made to vest in the survivor or sur­ vivors. _ Two examples of devises giving rise to cross-remainders are (1) "to A and B for life, with the remainder to the survivor and her heirs," and (2) "Blackacre to A and Whiteacre to B, with the remain­ der of A's estate to B on A's failure of issue, and the remainder of B's estate to A on B's failure of issue." • If no tenants or issue survive, the remainder vests in a third party (sometimes known as the ulterior remain­ derman). Each tenant in common has a reciprocal, or cross, remainder in the share of the others. This type of remainder could not be created by deed unless expressly stated. It could, however, be implied in a will. [Cases: Remainders C=: 1.] "By a will also an estate may pass by mere implication, without any express words to direct its course.... So also, where a devise of black-acre to A and of white-acre to B in tail, and if they both die without issue, then to C in fee: here A and B have cross remainders by implication, and on the failure of either's issue, the other or his issue shall take the whole: and C's remainder over shall be postponed till the issue of both shall fail." 2 William Blackstone, Commentar­ ies on the Laws of England 381 (1766).

defeasible remainder. (18c) A vested remainder that will be destroyed if a condition subsequent occurs. - An example is "to A for life, and then to B, but if B ever sells liquor on the land, then to c." - Also termed remainder subject to divestment. [Cases: 10.] Remainders executed remainder. See vested remainder.

executory remainder. See contingent remainder.

indefeasible remainder. (1898) A vested remainder

that is not subject to a condition subsequent; specif., a remainder in which the remainderman is certain to acquire a present interest sometime in the future and will be entitled to retain the interest permanently. ­ Also termed indefeaSibly vested remainder; remainder indefeasibly vested. remainder subject to a condition precedent. See contin­ gent remainder. remainder subject to divestment. See defeasible remain­ der. remainder subject to open. (1838) A vested remainder that is given to a class of persons whose numbers may change over time and that is to be shared equally by each member of the class. - An example is "to A for life, and then equally to all of B's children." The class must have at least one member, but more can be added over time. Also termed remainder subject to partial divestment; remainder vested subject to open_ vested remainder. (18c) A remainder that is given to an ascertained person and that is not subject to a condition precedent. • An example is "to A for life, and then to B." Also termed executed remainder. [Cases: Remainders 1.]

2. The property in a decedent's estate that is not other­ wise specifically devised or bequeathed in a will. See residuary estate under ESTATE (3). [Cases: Wills 586.] remainder bequest. See residuary bequest under BEQUEST.

remainderer. See REMAINDERMAN. remainder estate. See REMAINDER (I). remainder indefeasibly vested. See indefeasible remain­ der under REMAINDER. remainder interest. (1815) 1he property that passes to a beneficiary after the expiration of an intervening j ncome interest. _ For example, if a grantor places real estate in trust with income to A for life and remainder to B upon A's death, then B has a remainder interest. remainderman. (18c) A person who holds or is entitled to receive a remainder. Also termed remainderer; remainderperson; remainor. [Cases: Remainders 1.] ulterior remainderman. A third party whose future interest in a property vests only jf all the preceding See cross-remainder under reciprocal interests REMAINDER.

remainder subject to partial divestment. See remainder subject to open under REMAINDER. remainder vested subject to open. See remainder subject to open under REMAINDER. remainor, n. See REMAINDERMAN. remake rights. Copyright. The rights to produce one or more additional movies or screenplays based on what is substantially the same story as is contained in the original movie or screenplay for which the rights have been granted. [Cases: Copyrights and Intellectual Property 38.) remancipate, vb. To mancipate (a thing or person) again. remand (ri-mand also ree-mand), n. (18c) 1. The act or an instance of sending something (such as a case, claim, or person) back for further action. 2. An order remand­ ing a case, claim, or person. fourth-sentence remand. In a claim for SOcial-security benefits, a court's decision affirming, reversing, or modifying the decision of the Commissioner of Social Security. - This type of remand is called a fourth­ sentence remand because it is based on the fourth sentence of 42 USCA § 405(g): "The court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing." See Melkonyan v. Sullivan, 501 U.S. 89, 111 S.Ct. 2157 (1991). [Cases: Social Security and Public Welfare C:-149.] sixth-sentence remand. In a claim for social-security benefits, a court's decision that the claim should be reheard by the Commissioner of Social Security

1407

remedy

intended to permanently alleviate pollution when a because new evidence is available, which was not available before, that might change the outcome of hazardous substance has been released or might be the proceeding.• This type of remand is called a released into the environment, so as to prevent or sixth-sentence remand because it is based on the sixth minimize any further release ofhazardous substances sentence of 42 USCA § 405(g): "The court may, on and thereby minimize the risk to public health or to the motion of the Commissioner of Social Security made environment. 42 USCA § 9601(24); 40 CFR § 300.6. ­ for good cause shown before the Commissioner files Also termed remedy. See CERCLA. Cf. REMOVAL ACTION. the Commissioner's answer, remand the case to the [Cases: Environmental Law (;:::;,439.J 2. See personal Commissioner of Social Security for further action action (1) under ACTION (4). by the Commissioner of Social Security, and it may remedial enforcement. See secondary right under at any time order additional evidence to be taken RIGHT. before the Commissioner of Social Security, but only remedial law. (l7c) 1. A law providing a means to enforce upon a showing that there is new evidence which is rights or redress injuries. 2. A law that corrects or material and that there is good cause for the failure to modifies an existing law; esp., a law proViding a new incorporate such evidence into the record in a prior or different remedy when the existing remedy, if any, proceeding ...." See Melkonyan v. Sullivan, 501 U.S. is inadequate. [Cases: Statutes (;:::;,236.] 89, 111 S.Ct. 2157 (1991). [Cases: Social Security and Public Welfare (;:::;, 149.) remedial liability. See LIABILITY. remand (ri-mand), vb. (15c) 1. To send (a case or claim) remedial promise. See PROMISE. back to the court or tribunal from which it came for remedial right. See RIGHT. some further action 107(8).) 2. To recommit (an nearly so as is practicaL [Cases: Environmental Law accused person) to custody after a preliminary exami­ '~J366, 439.] nation . enforcing rights and redressing wrongs. rem anentia (rem-~-nen-shee-~). [Law Latin] Rist. A remediis praetoriis (ri-mee-dee-is pri-tor-ee-is). [Latin] remainder or perpetuity. Hist. By praetorian remedies. remanent pro defectu emptorum (rem-~-n<mt proh di­ remedium extraordinarium (ri-mee-dee-~m ek-stror­ fek-t[y]oo emp-tor-~m). [Latin] Hist. Remains unsold di-nair-ee-, 2. To abate or slacken; to mitigate , 3. To refer (a matter for decision) to some authority, esp, to send back (a case) to a lower court , See REMAND, [Cases: Administrative Law and Procedure ~817; Appeal and Error (~1106, 1178; Criminal Law (:::=~ 11Sl.5; Federal Courts ~943,1.]4. To send or put back to a previous condition or position , 5. To transmit (as money) . - remissible (for senses 1-4), adj, remittable (for sense 5), adj, remittance. (ISc) 1. A sum of money sent to another as payment for goods or services, 2. An instrument (such as a check) used for sending money, 3. The action or process of sending money to another person or place, remittance advice. See ADVICE, remittee. (18c) One to whom payment is sent, remitter. (16c) 1. The principle by which a person having two titles to an estate, and entering on it by the later or more defective title, is deemed to hold the estate by the earlier or more valid title. 2. The act of sending back a case to a lower court 3. One who sends payment to someone else. - Also spelled (in sense 3) remittor, remitting bank. See BANK. remittit damna (ri-mit-it dam-nJ), [Latin] Hist, An entry on the record by which a plaintiff declares that he or she remits part of the damages that have been awarded. ­ Also termed remittitur damna; remittitur damnum. remittitur (ri-mit-i-tJr), (ISc) 1. An order awarding a new trial, or a damages amount lower than that awarded by the jury, and requiring the plaintiff to choose between those alternatives . 2. The process by which a court requires either that the case be retried, or that the damages awarded by the jury be reduced, Cf. ADDITUR, [Cases: Federal Civil Procedure C:J2377; Federal Courts ~'94S; New Trial (;::J 162.] remittitur damna. See REMITTIT DAMNA, remittitur damnum. See REMITTIT DAMNA, remittitur of record, (1848) The action of sending the transcript of a case back from an appellate court to a trial court; the notice for doing so. remittor. See REMITTER (3), remnants and surpluses. Maritime law, 1he proceeds remaining from the sale of a ship after claims for seamen's wages, bottomry bonds, salvage services, and supplies have been paid, [Cases: Admiralty ~ lOL]

remonetization, n. The restoration of a precious metal (such as gold or silver) to its former use as legal tender. - remonetize, vb. remonstrance (ri-mon-str;:mts), n, (l6c) 1. A presenta­ tion of reasons for opposition or grievance. 2. A formal document stating reasons for opposition or grievance, 3. A formal protest against governmental policy, actions, or officials. remonstrate (ri-mon-strayt), vb, remote, adj. (ISc) 1. Far removed or separated in time, space, or relation, 2. Slight. 3. Property. Beyond the 21 years after some life in being by which a devise must vest. See RULE AGAINST PERPETUITIES. [Cases: Perpe­ tuities ~4(3).1 remote cause. See CAUSE (1), remote damages. See speculative damages (1) under DAMAGES.

remoteness of consequence, Torts, The lack ofproximate causation with respect to an alleged act by a defendant. • Even if the plaintiff proves every other element for tortious liability, the defendant will not be liable if the harm suffered by the plaintiff is too far removed from the defendant's conduct, - Also termed remoteness afdamage. remote possibility. See POSSIBILITY. remotis testibus (ri-moh-tis tes-ti-bds), [Latin] Hist. The witnesses being absent removal, n. (l6c) 1. The transfer or moving of a person or thing from one location, position, or residence to another. 2. The transfer of an action from state to federal court.• In removing a case to federal court, a litigant must timely file the removal papers and must show a valid basis for federal-court jurisdiction. 28 USCA § 1441. Cf. REMAND (1). [Cases: Removal of Cases c:r-:;::, 16.] - remove, vb. civil-rights removal. (1964) Removal of a case from state to federal court because a person: (1) has been denied or cannot enforce a civil right in the state court, (2) is being sued for performing an act under color of authority derived from a law providing for equal rights, or (3) is being sued for refUSing to perform an act that would be inconsistent with equal rights. [Cases: Removal of Cases C='70.] removal action. Environmental law. An action, esp, under CERCLA, intended to bring about the short-term abatement and cleanup of pollution (as by removing and disposing of toxic materials). See CERCLA, Cf. REMEDIAL ACTION, [Cases: Environmental Law 439, 441.J removal bond. See BOND (2). rem pupilli salvam fore (rem pyoo-pil-I sal-vdm for-ee). [Latin] Roman law. The guarantee reqUired of a guardian that the estate of the person under puberty will be safe, REMT. abbr, REAL-ESTATE MORTGAGE TRUST, remuneration (ri-myoo-nd-ray-shJn), n, (ISc) 1. Payment; compensation, 2. The act of paying or

remunerative donation

compensating. - remunerative, adj. - remunerate,

vb. remunerative donation. See DONATION. rencounter (ren-kown-t;)r). (16c) A hostile meeting or contest; a battle or combat. - Also spelled rencontre (ren-kon-t;)r). render, n. (14c) Hist. 1. A payment in money, goods, or services made by a feudal tenant to the landlord. 2. A return conveyance made by the grantee to the grantor in a fine. See FINE (1). render, vb. 1. To transmit or deliver . 2. (Of a judge) to deliver formally . 3. (Of a jury) to agree on and report formally . 4. To pay as due . rendezvous, n. 1. A place designated for meeting or assembly, esp. of troops or ships. 2. The meeting or assembly itself. rendition, n. (17c) 1. The action of making, delivering, or giving out, such as a legal decision. 2. lhe return of a fugitive from one state to the state where the fugitive is accused or was convicted of a crime. Also termed (in sense 2) interstate rendition. Cf. EXTRADITIO>l. [Cases: 30.] Extradition and Detainers erroneous rendition. See EXTRAORDINARY RENDITION. extraordinary rendition. The transfer, without formal charges, trial, or court approval, ofa person suspected of being a terrorist or supporter of a terrorist group to a foreign nation for imprisonment and interroga­ tion on behalf of the transferring nation .• When an innocent person is subjected to extraordinary rendi­ tion, it is also termed erroneous extradition. When a transfer is made to a nation notorious for human­ rights violations, it may be colloquially termed torture by proxy or torture flight. rendition ofjudgment. (18c) The judge's oral or written ruling containing the judgment entered. Cf. ENTRY OF JUDGMENT. [Cases; Federal Civil Procedure (;:::::>2621; Judgment (;:::::>215.] rendition warrant. See WARRANT (1). renege (ri-nig or ri-neg), vb. (16c) To fail to keep a promise or commitment; to back out of a deal. renegotiable-rate mortgage. See MORTGAGE. renegotiation, n. (1934) 1. The act or process of negoti­ ating again or on different terms; a second or further negotiation. 2. The reexamination and adjustment of a government contract to eliminate or recover excess profits by the contractor. [Cases: United States 70(35).] - renegotiate, vb. renewable term insurance. See INSURA>lCE.

renewal, n. (17c) 1. The act of restoring or reestablishing.

2. Parliamentary law. The introduction or consider­ ation ofa question already disposed of. - Also termed renewal oj a motion. See restorative motion under MOTION (2). Cf. RECONSIDER. 3. The re-creation of a legal relationship or the replacement ofan old contract with a new contract, as opposed to the mere extension

1410

of a previous relationship or contract. Cf. EXTENSION (1); REVIVAL (1). [Cases: Contracts C-=>217.J - renew,

vb. renewal note. See NOTE (1). renewal of a motion. See RENEWAL (2). renounce, vb. (14c) 1. To give up or abandon formally (a right or interest); to disclaim . [Cases: Descent and Distribution Wills (;:::::>717.] 2. To refuse to follow or obey; to decline to recognize or observe 13.] guild rent. Hist. Rent payable to the Crown by a guild. Also spelled gild-rent. irredeemable ground rent. See ground rent (2). net rent. The rental price for property after payment of expenses, such as utilities, and taxes. [Cases; 210.] Landlord and Tenant rack-rent. See RACK-RENT.

redeemable ground rent. See ground rent (1).

1411

rentcharge

2. Hist. A compensation or return made periodically by a tenant or occupant for the possession and use of lands or corporeal hereditaments; money, chattels, or services issuing usu. annually out of lands and tene­ ments as payment for use. peppercorn rent. A nominal rent that is far below the market rate. - The rent may be a mere token payment. Historically in English law, some lease agreements called for a token annual rent payment of a Single dried berry of black pepper. See PEPPERCORN. quit rent. See QUIT RENT. rent charge. The right to receive an annual sum from the income ofland, usu. in perpetuity, and to retake possession if the payments are in arrears. - Also spelled rent-charge; rentcharge. - Also termed fee-farm rent. "Rent·charge is a rent with liberty to distrain. As when a man seised of land granteth by a deed poll, or by indenture, a yearly rent going out of the same land to another in fee or fee·tail, or for a term of life, etc. with clause of distress, or maketh a feoffment in fee by indenture, reserving to himself a certain yearly rent, with clause of distress." Sir Henry Finch, Law, or a Discourse Thereof 155 (1759). "A rentcharge is an annual or periodic payment charged upon, and payable by the owner of, land. Unlike a rent service, in the case of a rentcharge there is no tenure or privity of estate between the parties. The owner of a rentcharge has no tenurial relationship with the land upon which it is charged, A rentcharge is a species of incorporeal property, but, unlike an easement, is incorporeal property in gross, being enjoyed by the owner personally and not in the capacity of proprietor of land," Peter Butt, Land Law 330 (2d ed, 1988),

rent seck. Hist, A rent reserved by deed but without any clause of distress. - Also spelled rent-seck; rent­ sec. - Also termed dry rent. PI. rents seck. "But rents-seck have long ceased to exist, because the inability of their owners to distrain was abolished by the Landlord and Tenant Act, 1730 (4 George II), which enacted that the owners of rents' seck, rents of assize and chief rents should have the same remedy by distress as existed in the case of rent reserved upon lease." G.c. Cheshire, Modern Law of Real Property 199 (3d ed, 1933), "At common law, the relationship of lord and tenant carried with it an automatic right of distress for any rent. If no such relationship existed, there was no common law right of distress, and consequently an express clause of distress was frequently inserted when reserving the rent. A rent supported by no right of distress was known as a rent seck (from the Latin siccus, dry, barren) . , .. Rent seck ceased to exist many years ago, for by the landlord and Tenant Act 1730, the owners of rents seck were given the same rights of distress as a landlord has against his tenant under a lease, namely, a right to distrain as soon as the rent is in arrear." Robert E, Megarry & p,v. Baker, A Manual of the Law of Real Property 409 (4th ed, 1969),

rent service. A rent with some corporeal service incident to it (as by fealty) and with a right ofdistress, Also written rent-service, "[Rjent·service exists only where the relation of landlord and tenant is found, and in such a case rent derives its name from the fact that it was given as a substitute for the services to which the land was originally liable," G,c' Cheshire, Modern Law of Real Property 198 (3d ed, 1933),

3. Civil law. A contract by which one party conveys to another party a tract ofland or other immovable property, to be held by the other party as owner and in perpetuity, in exchange for payment of an annual sum of money or quantity of fruits. - Under Louisi­ ana law, the rent is essentially redeemable even though stipulated to be perpetual. The seller may set the terms of the redemption, which must take place after a stip­ ulated time (not to exceed 30 years) La. Civ. Code art. 2788. See FRUIT (2), - Also termed rent oflands. [Cases: Landlord and Tenant ~ l81.] 4. 1he difference between the actual return from a commodity or service and the cost of supplying it; the difference between revenue and opportunity cost. - rent, vb. rentage. (17c) Rent or rental. rent-a-judging. See PRIVATE JUDGI~G. rental, n, (14c) 1. The amount received as rent. crescendo rental. A rent payment that gradually increases at fixed periods during the lease term. delay rental. Oil & gas. A periodic payment made by an oil-and-gas lessee to postpone exploration during the primary lease term. See DRILLING-DELAY RENTAL CLAUSE; "or" lease, "unless" lease under LEASE; PAID-UP LEASE. [Cases: Mines and Minerals ~78.1(3).] net rental. The amount remaining after deducting all expenses from the gross rental income. 2. The income received from rent. 3. A record of payments received from rent. rental, adj. rent, vb. 1. To pay for the use of another's property. [Cases: Landlord and Tenant 181.] 2. Hist. Slang. EXTORT

(2),

Rental and Related Rights Directive. See DIRECTIVE ON RENTAL, LENDING

A~D

CERTAIN NEIGHBORING

RIGHTS.

Rental Directive. See DIRECTIVE O~

RENTAL, LE~mING

AND CERTAIN NEIGHBORING RIGHTS.

rental division order. Oil & gas. A stipulation signed by those entitled to delay rentals, stating what interest each owns and how much rental each is to receive. [Cases: Mines and Minerals ~79.1(3).] rental right. Copyright, The power of a copyright owner to control the use of copies of the work beyond the first sale, when that use involves offering the copy to the public for temporary use for a fee (as at a store renting DVDs and videotapes) or some other commer­ cial advantage (as at a hotel offering the loan ofDVDs or videotapes). - Rental rights are recognized among members of the European Commission and under TRIPs. The right also applies to the rental of computer software. [Cases: Copyrights and Intellectual Property C--=38.5,)

rentcharge. The right to receive an annual sum from the income ofland, usu. in perpetuity, and to retake pos­ session if the payments are in arrears. Also spelled rent-charge; rent charge. - Also termed fee-farm rent. "Rent-charge is a rent with liberty to distrain. As when a man seised of land granteth by a deed poll, or by indenture,

1412

rent control a yearly rent going out of the same land to another in fee or fee-tail, or for a term of life, etc with clause of distress, or maketh a feoffment in fee by indenture, reserving to himself a certain yearly rent, with clause of distress_" Sir Henry Finch, Law, or a Discourse Thereof 155 (1759). "A rentcharge is an annual or periodic payment charged upon, and payable by the owner of, land. Unlike a rent service, in the case of a rentcharge there is no tenure or privity of estate between the parties. The owner of a rentcharge has no tenurial relationship with the land upon which it is charged. A rentcharge is a species of incorporeal property, but, unlike an easement, is incorporeal property in gross, being enjoyed by the owner personally and not in the capacity of proprietor of land." Peter Butt, Land Law 330 (2d ed. 1988).

ecclesiastical-tithe rentcharge. Hist. English law. A rentcharge attached to a benefice or ecclesiastical cor­ poration.• Under the Tithe Act 1925, a landowner liable for an ecclesiastical-tithe rentcharge could redeem the land and discharge the tithe obligation by making an annual sinking-fund payment to Queen Anne's Bounty. The tithe was due for 81.5 years if the rentcharge was attached to a corporation or 85 years if the rentcharge was attached to a benefice. The law was repealed in 1998. See QUEEN ANNE'S BOUNTY; BENEFICE.

rent control. (1931) A restriction imposed, usu. by municipal legislation, on the maximum rent that a landlord may charge for rental property, and often on a landlord's power of eviction. [Cases: Landlord and Tenant C:=>200.10-200.83, 278.1.] rente (rawnt), n. [French "income, rent"] French law. L Annual income or rent. rente fonciere (fawn-syair) [French "ground rent"] A rent that is payable for the use of land and is per­ petual. rente viagere (vee-ah-zhair). [French "life rent"] A rent charge or annuity that is payable for life; a life interest or annuity. 2. (usu. pl.) Interest paid annually by the French gov­ ernment on the public debt; a government stock, bond, or annuity. rentee. Rare. A tenant. rente fonciere. See RENTE. rente viagere. See RENTE. rentier (rawn-tyay). [French]l. A person who owns or holds rentes. See RENTE. 2. A person who makes or lives off an income from property or investment; a stock­ holder or annuitant. rent oflands. See RENT (3). rent seck. See RENT (2). rent-seeking, n. Economic behavior motivated by an incentive to overproduce goods that will yield a return greater than the cost ofproduction.• The term is often used in the field oflaw and economics. See RENT (4). rent service. See RENT (2). rents, issues, and profits. (17c) The total income or profit arising from the ownership or possession of property.

rent strike. (1964) A refusal by a group of tenants to pay rent until grievances with the landlord are heard or settled. renunciation (ri-ndn-see-ay-sh;m), n. (l4c) 1. The express or tacit abandonment of a right without transferring it to another. 2. Wills & estates. The act of waiving a right under a will. • At one time, one renounced an inheritance by intestacy and disclaimed a gift by will. Today disclaim is common in both situations. - Also termed (in sense 2) disclaimer. See RIGHT OF ELECTION. Cf. DISCLAIMER. [Cases: Descent and Distribution ~ 72; Wills ~717.] 3. Criminal law. Complete and vol­ untary abandonment of criminal purpose - some­ times coupled with an attempt to thwart the activity's success - before a crime is committed.• Renuncia­ tion can be an affirmative defense to attempt, conspir­ acy, and the like. Model Penal Code § 5.01(4). - Also termed withdrawal; abandonment. [Cases: Conspir­ acy ~40.4.] 4. See anticipatory repudiation under REPUDIATION. - renunciative, renunciatory, adj. ­ renounce, vb. renvoi (ren-voy), n. [French "sending back"] 1. The doctrine under which a court in resorting to foreign law adopts as well the foreign law's conflict-of-Iaws prin­ ciples, which may in turn refer the court back to the law of the forum. [Cases: Action C:=> 17.] 2. The problem arising when one state's rule on conflict oflaws refers a case to the law of another state, and that second state's conflict-of-Iaw rule refers the case either back to the law of the first state or to a third state. See CONFLICT OF LAWS. 3. RECONDUCTION (2). REO. abbr. REAL ESTATE OWNED. reo absente (ree-oh ab-sten-tee). [Latin] The defendant being absent; the absence of the defendant. reopen. (Of a court) to review (an otherwise final and nonappealable judgment) for the purpose of possibly granting or modifying relief. • A court will reopen a judgment or case only in highly unusual circumstances. See Fed. R. Civ. P. 60. [Cases: Federal Civil Procedure ~2641; Judgment ~336.] reo praesente (ree-oh pri-zen-tee). [Latin] Hist. The defendant being present; the presence of the defen­ dant. reorganization, n. 1. Bankruptcy. A financial restruc­ turing of a corporation, esp. in the repayment of debts, under a plan created by a trustee and approved by a court. See CHAPTER 11. [Cases: Bankruptcy~3501.] haircut reorganization. A restructuring that reduces the principal amount of indebtedness owed to credi­ tors.• The more common usage is simply haircut <we took a haircut on that deal>. 2. Tax. A restructuring of a corporation, as by a merger or recapitalization, in order to improve its tax treat­ ment under the Internal Revenue Code .• The Code classifies the various types of reorganizations with dif­ ferent letters. IRC (26 USCA) § 368(a)(I). Cf. RECAPI­ TALIZATION.

1413

A reorganization. A reorganization involving a merger or consolidation under a specific state statute. [Cases: Internal Revenue (;=3668.] B reorganization. A reorganization in which one cor­ poration exchanges its voting shares for another cor­ poration's voting shares. [Cases: Internal Revenue 3669.] C reorganization. A reorganization in which one cor­ poration exchanges its voting shares for substantially all the assets of another corporation. [Cases: Internal Revenue (;:::>3670.] D reorganization. A reorganization in which the cor­ poration transfers some or all of its assets to another corporation that is controlled by the transferor or its shareholders, and then the stock of the transferee corporation is distributed. [Cases: Internal Revenue C::::>3670.J E reorganization. A reorganization involVing a recapi­ talization. [Cases: Internal Revenue (;:::>3671.) F reorganization. A reorganization involving a mere change in a corporation's identity, form, or place of organization. [Cases: Internal Revenue C=:>3672.J G reorganization. A reorganization involving a transfer of all or part of the corporation's assets to another corporation in a bankruptcy or similar proceeding. [Cases: Internal Revenue C=~; 3673.] reorganization bond. See adjustment bond under BOND (3).

reorganization plan. Bankruptcy. A plan of restruc­ turing submitted by a corporation for approval by the court in a Chapter 11 case. See CHAPTER 11. [Cases: Bankruptcy (;= 3531-3570.J rep. abbr. 1. REPORT. 2. REPORTER. 3. REPRESENTATIVE. 4. REPUBLIC. repair-and-replace provision. A contractual clause proViding that a product's defect will be remedied by repairing or replacing the defective part or product. [Cases: Sales (;:::>286, 41S(6).] repair doctrine. Patents. The rule that a licensee who is authorized to produce, use, or distribute a patented device also has the right to repair and replace unpatented components. Also termed permissible­ repair doctrine. Cf. RECONSTRUCTION. [Cases: Patents C=:>255.) reparable injury. See INJURY. reparation (rep-d-ray-sh;m). (14c) 1. The act of making amends for a wrong. 2. (usu. pl.) Compensation for an injury or wrong, esp. for wartime damages or breach of an international obligation. reparationefacienda. See DE REPARATIONE FACIENDA. reparative injunction. See INJUNCTION. reparole. (1916) A second release from prison on parole, served under the same sentence for which the parolee served the first term of parole. [Cases: Pardon and Parole (;:::>72.1.]

replevin

repeal, n. (16c) RESCIND (3); esp., abrogation of an existing law by legislative act. [Cases: Statutes 149-170, 232.J repeal, vb. express repeal. (17c) Repeal by specific declaration in a new statute or main motion. [Cases: Statutes 151.] implied repeal. (ISc) Repeal by irreconcilable conflict between an old law or main motion and a more recent law or motion. Also termed repeal by implication. [Cases: Statutes (;= 159.J repeal by implication. See implied repeal. repealer. 1. A legislative act abrogating an earlier law. Also termed repealing act. [Cases: Statutes (;= 149-170, 2. One who repeals. repealing clause. (17c) A statutory provision that repeals an earlier statute. repealing statute. See STATUTE. repeater. See RECIDIVIST. repeat offender. See OFFENDER. repetition. Civil law. A demand or action for restitution or repayment. See SOLUTIO INDEBITI. repetitum namium (ri-pet-d-t34.) "The action of replevin lies, where specific personal property has been wrongfully taken and is wrongfully detained, to recover possession of the property, together with damages for its detention. To support the action it is necessary' (a) That the property shall be personal. (b) That the plaintiff, at the time of suit, shall be entitled to the immediate possession. (c) That (at common law) the defen­ dant shall have wrongfully taken the property (replevin in the cepit). But, by statute in most states, the action will now also lie where the property is wrongfully detained, though it was lawfully obtained in the first instance (replevin in the detinet). (d) That the property shall be wrongfully detained by the defendant at the time of suit." Benjaminj. Shipman, Handbook of Common-Law Pleading § 49, at 120 (Henry Winthrop Ballantine ed., 3d ed. 1923). "In rare cases, the plaintiff might seek equitable relief to secure return of a chattel. More commonly, the claim for recovery of the chattel was pursued at common law under forms of action such as Detinue or Replevin. American statutes or court rules tracked the common law generally, referring to the recovery variously as replevin, detinue, claim-and·delivery, or sequestration. The statutes usually allowed the plaintiff to recover the disputed chattel before trial, though this is now subject to constitutional limits which have led to procedural revisions in many of the statutes." 1 Dan B. Dobbs, Law of Remedies § 5.17(1), at 917 (2d ed. 1993).

personal replevin. (1844) At common law, an action to replevy a person out of prison or out of another's custody. - Personal replevin has been largely super­ seded by the writ of habeas corpus as a means of investigating the legality of an imprisonment. See HABEAS CORPUS.

replevin in cepit (in see-pit). (18c) An action for the repossession ofproperty that is both wrongfully taken and wrongfully detained. [Cases: Replevin C::-9.] replevin in detinet (in det-i-net). (18c) An action for the repossession of property that is rightfully taken but wrongfully detained. [Cases: Replevin C::-9.] replevin, vb. Archaic. REPLEVY. replevin bond, See BOND (2). replevisable. See REPLEVIABLE.

replevisor (ri-plev- 1.J 2. To recover (goods) by replevin. 3. Archaic. To bail (a prisoner). replevy bond. See replevin bond under BOND (2). repliant (ri-ph-. committee report. Parliamentary law. A report from a committee to a deliberative assembly on business referred to the committee or on a matter otherwise under its charge. informational report. Parliamentary law. A report without a recommendation for action. insider report. Securities. A monthly report that must be filed with the SEC when more than 10% of a com­ pany's stock is traded. majority report. Parliamentary law. A committee report, as distingUished from a minority report. See committee report. Cf. minority report.

1415

representation

minority report. Parliamentary law. A report by a member or members who dissent from a commit­ tee report, setting forth their views, and sometimes proposing an alternative recommendation .• Some organizatiom require that a minority must reach a certain size (or obtain permission) before it can file a report. A typical minimum is one-fourth ofthe com­ mittee's members, which guarantees that not more than one minority report will result. officer's report. Parliamentary law. A report from an officer to an organization or deliberative assembly on business relating to the officer's duties or on a matter otherwise under the officer's charge. report with recommendation. Parliamentary law. A report accompanied by a recommendation for action. 2. A written account of a court proceeding and judicial decision . Cf. MISREPRESENTATION. [Cases: I'raud "Representation ... may introduce terms into a contract and affect performance: or it may induce a contract and so affect the intention of one of the parties, and the formation of the contract.. , . At common law, . , , if a representa­ tion did not afterwards become a substantive part of the

representation, estoppel by contract, its untruth (save in certain excepted cases and apart always from fraud) was immaterial. But if it did. it might be one of two things: (I) it might be regarded by the parties as a vital term going to the root of the contract (when it is usually called a 'condition'); and in this case its untruth entitles the injured party to repudiate the whole contract; or (2) it might be a term in the nature only of an independent subsidiary promise (when it is usually called a 'warranty'), which is indeed a part of the contract, but does not go to the root of it; in this case its untruth only gives rise to an action ex contractu for damages, and does not entitle the injured party to repudiate the whole contract." William R. Anson, Principles of the Law ofContract 218, 222 (Arthur L. Corbin ed., 3d Am. ed. 1919).

affirmative representation. (1842) A representation to asserting the existence of certain facts a given subject matter. [Cases: Contracts Fraud C:~)9.) false representation. See MISREPRESENTATION.

material representation. (lBc) A representation to

which a reasonable person would attach importance

in deciding his or her course of action in a transac­

element

tion.• Material representation is a of an action for fraud, [Cases: Contracts

Fraud C=::' lB.)

promissory representation. (1842) A representation

about what one will do in the future; esp" a repre­

sentation made by an insured about what will happen

during the time of coverage, stated as a matter

of expectation and amounting to an enforceable

promise, [Cases: Fraud C=:) 12; Insurance

2. The act or an instance of standing for or acting on behalf of another, esp, by a lawyer on behalf of a client 77-lOl.J concurrent representation. The simultaneous repre­ sentation ofmore than one person in the same matter, See CONFLICT OF INTEREST (2), 3. The fact of a litigant's having such a close alignment of interests with another person that the other is con­ sidered as having been present in the litigation , adequate representation. (1939) A close alignment of interests between actual parties and potential parties in a lawsuit, so that the interests of potential parties are sufficiently protected by the actual parties .• The concept of adequate representation is often used in procedural contexts, For example, if a case is to be certified as a class action, there must be adequate rep­ resentation by the named plaintiffs of all the poten­ tial class members. Fed. R, eiv. P. 23(a)(4), And if a nonparty is to intervene in a lawsuit, there must not already be adequate representation of the nonparty by an existing party, Fed, R. Civ. P, 24(a)(2), [Cases: 164, 316; Parties Federal Civil Procedure 35.13,41,J virtual representation. (1934) A party's maintenance of an action on behalf ofothers with a similar interest, as a class representative does in a class action, See

1416

lCases: Federal Civil Procedure 103,2, 163; Judgment Parties 4. The assumption by an heir of the rights of his or her predecessor <each child takes a share by representa­ tion>, See PER STIRPES, [Cases: Wills G=550,)5. (usu, pi,) InCllaw, A friendly but firm statement of a per­ ceived wrong, • This is the mildest form of complaint that one nation can make to another. - Also termed diplomatic representation. - represent, vb. VIRTUAL-REPRESENTATION DOCTRINE.

"Representations are in the nature of vigorous arguments employed in the hope of securing a modification of the action complained of withom implying necessarily or expressly an intention ultimately to seek redress by more vigorous means," Ellery C. Stowell, International Law: A

Restatement of Principles in Conformity with Actual Practice 427 (1931).

representation, estoppel by. See estoppel by representa­ tion under ESTOPPEL. representation election. See ELECTIO~ (3). representative, n, (17c) 1. One who stands for or acts on behalf of another 141; Easements C=:> 14.] implied reservation. (1867) An implied easement that reserves in a landowner an easement across a portion of sold land, such as a right-of-way over land lying between the seller's home and the only exit. • An implied reservation arises only if the seller could have expressly reserved an easement, but for some reason failed to do so. See implied easement under EASEMENT. [Cases: Easements C=:> 17.] "If the implied easement is in favor of the conveyee and is appurtenant to the tract conveyed, it is called an implied grant; if the implied easement is in favor of the conveyor and is appurtenant to the tract retained, it is called an implied reservation." Ralph E. Boyer et aI., The Law of Property 311 (4th ed. 1991).

2. The establishment ofa limiting condition or qualifi­ cation; esp., a nation's formal declaration, upon signing or ratifying a treaty, that its willingness to become a

1422

party to the treaty is conditioned on the modification or amendment of one or more provisions of the treaty as applied in its relations with other parties to the treaty. [Cases: Treaties C=:> 3.] 3. A tract of public land that is not open to settlers but is set aside for a special purpose; esp., a tract of land set aside for use by indigenous peoples. - Also termed (in sense 3) reserve; reserved land; withdrawn land. [Cases: Indians C=:> 12.] reservation-of-rights letter. Insurance. A notice of an insurer's intention not to waive its contractual rights to contest coverage or to apply an exclusion that negates an insured's claim. - Also termed reservation ofrights. Insurance C~3111(2), 3120.] reserve, n. 1. Something retained or stored for future use; esp., a fund of money set aside by a bank or an insur­ ance company to cover future liabilities. amortization reserve. An account created for book­ keeping purposes to extinguish an obligation gradu­ ally over time. bad-debt reserve. A reserve to cover losses on uncol­ lectible accounts receivable. excess reserve. The portion of a bank's reserve against deposits in excess of the amount of reserve required bylaw. legal reserve.lhe minimum amount of liquid assets that a bank or an insurance company must maintain by law to meet depOSitors' or claimants' demands. 14,503; Insurance [Cases: Banks and Banking C=:> 1139.] loss reserve.!. An insurance company's reserve that represents the estimated value of future payments, as for losses incurred but not yet reported. [Cases: Insur­ ance ~:;::::;) 1139.] 2. A bank's reserve set aside to cover possible losses, as from defaulting loans. mean reserve. In insurance, the average of the begin­ ning reserve (after the premium has been paid tor the policy year) and the ending reserve of the policy year. policy reserve. An insurance company's reserve that represents the difference between net premiums and expected claims for a given year. • This type of reserve is kept by life-insurance companies. 1139.] [Cases: Insurance required reserve. The minimum amount of money, as required by the Federal Reserve Board, that a bank must hold in the form ofvault cash and deposits with regionall;ederal Reserve Banks. [Cases: Banks and Banking C=:> 14,351-359.] sinking-fund reserve. A reserve used to pay long-term debt. See sinkingfund under FUND (1). unearned-premium reserve. An insurance compa­ ny's reserve that represents premiums that have been recei ved in advance but not yet applied to policy coverage.• If a policyholder cancels coverage before the policy expires but has already paid a premium for the full policy period, the insurance company refunds

1423

the policyholder out of this reserve. [Cases: Insur­ ance ~~ 1139.] 2. RESERVATION (3). 3. See net value under VALUE (2). reserve, vb. reserve account. See impound account under ACCOUNT. reserve bank. See member bank under BANK. Reserve Board. See FEDERAL RESERVE BOARD OF GOV­ ERNORS.

reserve clause. A clause in a professional athlete's contract restricting the athlete's right to change teams, even after the contract expires .• Reserve clauses are uncommon in modern professional sports. Cf. FREE AGENCY.

reserved easement. See EASEMENT. reserved land. See RESERVATION (3). reserved point oflaw. See POINT OF LAW. reserved power. See POWER (3). Reserved Power Clause. See TENTH AMENDMENT. reserved surplus. See appropriated surplus (1) under SURPLUS.

reserve militia. See MILITIA. reserve price. See PRICE. reserve ratio. 'Ihe Federal Reserve Board's measurement of a member bank's required reserves. See required reserve under RESERVE. primary reserve ratio. Ihe ratio between a bank's required reserves (cash in vault plus deposits with Federal Reserve Banks) and its demand and time deposits. secondary reserve ratio. The ratio between a bank's government securities and its demand and time deposits. reset, n. Scots law.!. The act or an instance of know­ ingly receiving stolen goods. 2. Archaic. The harbor­ ing or sheltering of a criminal or outlaw. - resetter, n. - reset, vb. resettlement, n. (17c) 1. The settlement of one or more persons in a new or former place. See SETTLEMENT (6). 2. The reopening ofan order or decree for the purpose of correcting a mistake or adding something omitted. [Cases: Motions (;=>49.]- resettle, vb. res fit inempta (rays fit in-emp-t;l). [Latin] Hist. The object is regarded as unbought.• This is the ancient way of saying, "The sale is off." resfungibiles (rays fan-jib-a-Ieez), n. pI. [Latin] Civil law. Fungible things; things that are commercially inter­ changeable. res gestae (rays ;es-tee also jes-tI), n. pI. [Latin "things done"] (17c) The events at issue, or other events con­ temporaneous with them.• In evidence law, words and statements about the res gestae are usu. admis­ sible under a hearsay exception (such as present sense impression or excited utterance). Where the Federal Rules of Evidence or state rules fashioned after them

residence are in effect, the use of res gestae is now out of place. See Fed. R. Evid. 803(1), (2). - Also termed res gesta. [Cases: Criminal Law C;:::-' 363-368; Evidence~' 118­ 128.] "The Latin expression 'res gestae' or 'res gesta,' literally 'things done' or 'thing transacted,' has long served as a catchword ... [Tlhe phrase has frequently served both to let in utterances which in strictness were not admis­ sible and to exclude utterances which might well have been admitted. And frequently also its indefiniteness has served as a basis for rulings where it was easier for the judge to invoke this imposing catchword than to think through the real question involved. The phrase is antiquated. By modern judges it is being gradually discarded. It is super­ fluous, and serves only to obscure the logic of the rules. It should be left to oblivion." John H. Wigmore, A Students' Textbook of the Law of Evidence 279 (1935). 'The res gestae embraces not only the actual facts of the transaction and the circumstances surrounding it, but the matters immediately antecedent to and having a direct causal connection with it, as well as acts immediately fol­ lowing it and so closely connected with it as to form in reality a part of the occurrence." State v. Fouquette. 221 P.2d 404, 416-17 (Nev. 1950).

res gestae witness. See WITNESS. res habiles (rays hab-. 2. RESIDENCE (1) 338(1),369.1; Evidence (;::=>99, 130.] res ipsa loquitur (rays ip-sd loh-kwd-tdr). [Latin "the thing speaks for itself'] (17c) Torts. The doctrine pro­ viding that, in some circumstances, the mere fact of an accident's occurrence raises an inference of negligence that establishes a prima facie case. Often shortened to res ipsa. [Cases: Negligence "The phrase 'res ipsa loquitur' is a symbol for the rule that the fact of the occurrence of an injury, taken with the sur· rounding circumstances, may permit an inference or raise a presumption of negligence, or make out a plaintiff's prima

1425

resolution facie case, and present a question of fact for defendant

(Second) ofJudgments §§ 17,24 (1982).

to meet with an explanation. It is merely a short way of

res adjudicata; claim preclusion; doctrine ofres judicata.

saying that the circumstances attendant on the accident are of such a nature as to justify ajury, in light of common sense and past experience, in inferring that the accident was probably the result of the defendant's negligence, in the absence of explanation or other evidence which the jury believes." Stuart M. Speiser, The Negligence Case: Res Ipsa Loquitur§ 1:2, at 5-6 (1972). "It is said that res ipsa loquitur does not apply if the cause of the harm is known. This is a dark saying. The applica­ tion of the prinCiple nearly always presupposes that some part of the causal process is known, but what is lacking is evidence of its connection with the defendant's act or omission. When the fact of control is used to justify the inference that defendant's negligence was responsible it must of course be shown that the thing in his control in fact caused the harm. In a sense, therefore, the cause of the harm must be known before the maxim can apply." H.l.A. Hart & Tony Honore, Causation in the Law 419-20 (2d ed. 1985). "Res ipsa loquitur is an appropriate form of circumstantial evidence enabling the plaintiff in particular cases to estab· lish the defendant's likely negligence. Hence the res ipsa loquitur doctrine, properly applied, does not entail any covert form of strict liability.... The doctrine implies that the court does not know, and cannot find out, what actually happened in the individual case. Instead, the finding of likely negligence is derived from knowledge of the causes of the type or category of accidents involved." Restatement (Third) of Torts § 15 cmt. a (Discussion Draft 1999).

res ipsa loquitur test (rays ip-s. 2. (Of a litigant) to voluntarily conclude presenting evidence in (a trial) .• In sense 1, the verb is intransitive; in sense 2, it is transitive.

Restatement

Restatement. One of several influential treatises pub­ lished by the American Law Institute describing the law in a given area and guiding its development. • The Restatements use a distinctive format of black-letter rules, official comments, illustrations, and reporter's notes. Although the Restatements are frequently cited in cases and commentary, a Restatement provision is not binding on a court unless it has been officially adopted as the law by that jurisdiction's highest court. Restatements have been published in the following areas oflaw: Agency, Conflict of Laws, Contracts, Employ­ ment Law, Foreign Relations Law of the United States, Judgments, Law Governing Lawyers, Property, Restitu­ tion, Security, Suretyship and Guaranty, Torts, Trusts, and Unfair Competition. Also termed Restatement afthe Law. "We speak of the work which the organization should undertake as a restatement; its object should not only be to help make certain much that is now uncertain and to simplify unnecessary complexities, but also to promote those changes which will tend better to adapt the laws to the needs of life. The character of the restatement which we have in mind can be best described by saying that it should be at once analytical, critical and constructive." Commit· tee on the Establishment of a Permanent Organization for the Improvement of the law (Elihu Root, chairman), Report

Proposing the Establishment of an American Law Institute, 1 All Proc. 14 (1923).

restater. (1955) An author or reporter of a Restatement. restaur (res-tor). 1. The recourse that insurers (esp. marine underwriters) have against each other accord­ ing to the date of their insurance. 2. The recourse that marine insurers have against a ship's master if a loss occurs through the master's fault or negligence. 3. The recourse that one has against a guarantor or other person under a duty to indemnify. - Also spelled restor. restitutio in integrum (res-ta-t[y]oo-shee-oh in in-ta­ gram). [Latin] Roman & civil law. Restoration to the previous condition or the status quo.• In Roman law, a praetor could accomplish this by annulling a contract or transaction that was strictly legally valid but ineq­ uitable and by restoring the parties to their previous legal relationship. The phrase is still sometimes used in American law (esp. in Louisiana) when a court annuls a contract and orders restitution on equitable grounds. restitution, n. (Bc) 1. A body ofsubstantive law in which liability is based not on tort or contract but on the defen­ dant's uniust enrichment. See UNJUST ENRICHMENT. 2. The set of remed ies associated with that body oflaw, in which the measure of recovery is usu. based not on the plaintiff's loss, but on the defendant's gain. Cf. COM­ PENSATION; DAMAGES. 3. Return or restoration of some specific thing to its rightful owner or status. 4. Com­ pensation for loss; esp., full or partial compensation paid by a criminal to a victim, not awarded in a civil trial for tort, but ordered as part ofa criminal sentence or as a condition of probation. [Cases: Damages 1; Implied and Constructive Contracts C=4; Infants C= 224; Sentencing and Punishment . 3. RESTRAINT OF TRADE.

4.

FORFEITURE RESTRAINT.

restraint of marriage. (16c) A condition (esp. in a gift or bequest) that nullifies the grant to which it applies ifthe grantee marries or remarries. - Restraints of marriage are usu. void if they are general or unlimited in scope. [Cases: Contracts 111.] restraint of princes. Archaic. An embargo. - The phrase still occaSionally appears in marine-insurance contexts. - Also termed restraint ofprinces and rulers; restraint ofprinces, rulers, and people. See EMBARGO. restraint of trade. 1. A limitation on business dealings or professional or gainful occupations. 2. Antitrust. An agreement between two or more businesses or a combination ofbusinesses intended to eliminate com­ petition, create a monopoly, artificially raise prices, or otherwise adversely affect the free market - Restraints of trade are usu. illegal, but may be declared reason­ able if they are in the best interests of both the parties and the public. Often shortened to restraint. Also termed conspiracy in restraint oftrade. See PER SE RULE; RULE OF REASON. [Cases: Antitrust and Trade Regula­ tion horizontal restraint. A restraint of trade imposed by agreement between competitors at the same level of distribution. - The restraint is horizontal not because it has horizontal effects, but because it is the product of a horizontal agreement. - Also termed horizontal agreement. unreasonable restraint of trade. A restraint of trade that produces a Significant anticompetitive effect and thus violates antitrust law. vertical restraint. A restraint of trade imposed by agreement between firms at different levels of distri­ bution (as between manufacturer and retailer).

restraint on alienation. (l8c) 1. A restriction, usu. in a deed of conveyance, on a grantee's ability to sell or transfer real property; a provision that conveys an interest and that, even after the interest has become vested, prevents or discourages the owner from dispos­ ing ofit at all or from disposing of it in particular ways or to particular persons. - Restraints on alienation are generally unenforceable as against public policy favoring the free alienability ofland. Also termed unreasonable restraint on alienation. 2. A trust provi­ sion that prohibits or penalizes alienation of the trust corpus. [Cases: Perpetuities C~"6.] restricted indorsement. See conditional indorsement under INDORSEMENT. restricted interpretation. See restrictive interpretation under INTERPRETATION. restricted security. See SECURITY. restricted stock. See restricted security under SECURITY.

restricted surplus. See SURPLUS. restricted visitation. See supervised visitation under VISITATION.

restriction. (ISc) 1. A limitation or qualification. 2. A limitation (esp. in a deed) placed on the use or enjoy­ ment of property. See restrictive covenant under COVENANT (4). [Cases: Covenants 49-52, 69.] conservation restriction. See conservation easement under EASEMENT. 3. Military law. A deprivation of liberty involving moral and legal, rather than physical, restraint. - A military restriction is imposed as punishment either by a commanding officer's nonjudicial punishment or by a summary, special, or general court-martial. Restriction is a lesser restraint because it permits the restricted person to perform full military duties. See nonjudicial punishment under PUNISHMENT. [Cases: Military Justice 526, 1322.1.] restriction in lieu ofarrest. A restriction in which a person is ordered to stay within specific geographi­ cal limits, such as a base or a ship, and is permitted to perform full military duties. [Cases: Military Justice (::";;>935.1.]

4. Patents. A patent examiner's ruling that a patent application comprises two or more patentably distinct or independent inventions; the requirement that the applicant elect one invention to continue prosecuting under the original application by abandoning some of the original claims. - The applicant may defend the claims by traversing the requirement, abandon any nonelected invention, or continue prosecuting any nonelected invention under a separate divisional application. - Also termed requirement for restric­ tion; restriction requirement; division. Cf. OBJECTION (2); REJECTION (4). [Cases: Patents 120.] restriction application. See divisional application under PATENT APPLICATION.

restriction requirement. See RESTRICTION (4).

restrictive condition. See negative condition under CON­ DITTON (2).

restrictive covenant. 1. See noncompetition covenant under COVENANT (1). 2. See COVENANT (4). restrictive covenant in equity. See restrictive covenant under COVENANT (4). restrictive indorsement. See INDORSEMENT. restrictive interpretation. See INTERPRETATION. restrictive principle of sovereign immunity. The doctrine by which a foreign nation's immunity does not apply to claims arising from the nation's private or commercial acts, but protects the nation only from claims arising from its public functions. See COM­ MERCIAL-ACTIVITY EXCEPTION; JURE GESTTONIS; JURE IMPERII.

[Cases: International Law (;=> 10.33.]

"[Tlhe [Foreign Sovereignjlmmunities Act codified the so-called 'restrictive' principle of sovereign immunity, as recognized in international law. Under this doctrine, the immunity of a foreign state in the courts of the United States is 'restricted' to claims involving the foreign state's public acts and does not extend to suits based on its com­ mercial or private conduct." 14A Charles Alan Wright et a!., Federal Practice and Procedure § 3662, at 161-62 (3d ed.1998).

restrictive title. See TITLE (3).

resulting power. See POWER (3).

resulting trust. See TRUST.

resulting use. See USE (4).

resume consideration. See take from the table under

TABLE.

resummons. (ISc) A second or renewed summons to a party or witness already summoned. See SUMMONS. resumption. 1. The taking back of property previously given up or lost. 2. Hist. The retaking by the Crown or other authority of lands or rights previously given to another (as because of false suggestion or other error). res universitatis (rays yoo-na-var-sa-tay-tis), n. pl. [Latin] Roman law. Things belonging to a community or cor­ porate body and free to be used by all its members. resurrender, n. Hist. The return of a copyhold estate to a mortgagor by the mortgagee after the debt has been repaid. See SURRENDER OF COPYHOLD. retail, n. lhe sale of goods or commodities to ultimate consumers, as opposed to the sale for further distribu­ tion or processing. retail, adj. Cf. WHOLESALE. ­ retail, vb. retailer, n. A person or entity engaged in the business of selling personal property to the public or to consum­ ers, as opposed to selling to those who intend to resell the items. retail installment contract. See CONTRACT. retail installment contract and security agreement. See retail installment contract under CONTRACT. retail installment sale. See INSTALLMENT SALE. retail sales tax. See sales tax under TAX.

retainage (ri-tayn-ij). (1901) A percentage of what a landowner pays a contractor, withheld until the con­ struction has been satisfactorily completed and all mechanic's liens are released or have expired. - Also termed retained fund. [Cases: Contracts (;=>214, 221(3).] retained earnings. See EARNINGS. retained fund. See RETAINAGE. retained income trust. See grantor-retained income trust under TRUST. retainer, n. (I8c) 1. A client's authorization for a lawyer to act in a case . [Cases: Attorney and Client C='64.] 2. A fee that a client pays to a lawyer simply to be available when the client needs legal help during a specified period or on a specified matter. 137.] 3. A lump-sum [Cases: Attorney and Client fee paid by the client to engage a lawyer at the outset of a matter. - Also termed engagement fee. 4. An advance payment of fees for work that the lawyer will perform in the future. Also termed retainingfee. Cf. ATTORNEY'S FEES. [Cases: Attorney and Client (;=> 137.] retain, vb. "Over the years, attorneys have used the term 'retainer' in so many conflicting senses that it should be banished from the legal vocabulary. .. If some primordial urge drives you to use the term 'retainer: at least explain what you mean in terms that both you and the client will understand." Mortimer D. Schwartz & Richard C. Wydick, Problems in Legal Ethics 100, 101 (2d ed. 1988).

general retainer. (18c) A retainer for a specific length of time rather than for a specific project. [Cases: Attorney and Client (;=> 137.] special retainer. (18c) A retainer for a specific case or project. [Cases: Attorney and Client (;=> 137.] retaining fee. See RETAINER (4). retaining lien. See LIEN. retaliatory discharge. See DISCHARGE (7). retaliatory eviction. See EVICTION. retaliatory law. (1820) A state law restraining another state's businesses as by levying taxes in response to similar restraints imposed by the second state on the first state's businesses. retaliatory tariff. See TARIFF (2). retallia (ri-tal-ee-a). [Law Latin] Hist. The sale of goods or commodities in small quantities; retail. retenementum (ri-ten-a-men-tam). Hist. A withholding; restraint or detainment. retenta possessione (ri-ten-ta p798.] "The rationale for the retreat rule is not difficult to ascer­ tain, at least in part. It rests upon the view that human life, even the life of an aggressor, is sufficiently important that it should be preserved when to do so requires only the sac­ rifice of the much less important interest in standing one's ground." George E. Dix, "Justification: Self-defense," in 3 Encyclopedia of Crime and Justice 946. 948-49 (Sanford H. Kadish ed., 1983).

retrial, n. (18c) A new trial of an action that has already been tried. See trial de novo under TRIAL. [Cases: Federal Civil Procedure (;:::J2311; New Trial (;::;.-'0.5.] ­ retry, vb. retribution, n. (14c) 1. Criminal law. Punishment imposed as repayment or revenge for the offense com­ mitted; requital. Cf. DETERRENCE; REHABILITATION (1). [Cases: Sentencing and Punishment (;:::J44.J 2. Some­ thing justly deserved; repayment; reward. retribu­ tive, adj. - retribute, vb. retributive danger. See DANGER. retributive punishment. See PUNISHMENT. retributivism (ri-trib-Yd-ta-viz-am). (1966) The legal theory by which criminal punishment is justified, as long as the offender is morally accountable, regardless of whether deterrence or other good consequences would result .• According to retributivism, a criminal is thought to have a debt to pay to society, which is paid by punishment. The punishment is also sometimes said to be society's act of paying back the criminal for the wrong done. Opponents of retributivism some­ times refer to it as «vindictive theory." Cf. hedonistic utilitarianism under UTILITARIANISM; UTILITARIAN­ DETERRENCE THEORY. [Cases: Sentencing and Punish­ ment (;:::J44.J maximalist retributivism.The classical form of retrib­ utivism, espoused by scholars such as Immanuel Kant, under which it is argued that society has a duty, not just a right, to punish a criminal who is guilty and culpable, that is, someone who has no justification or excuse for the illegal act. minimalist retributivism. The more contemporary form of retributivism, which maintains that no one should be punished in the absence of guilt and

retroactive

culpability (that is, unless punishment is deserved), and that a judge may absolve the offender from pun­ ishment, wholly or partially, when doing so would further societal goals such as rehabilitation or deter­ rence. retroactive, adj. (17c) (Of a statute, ruling, etc.) extend­ ing in scope or effect to matters that have occurred in the past. Also termed retrospective. Cf. PROSPECTIVE (1). [Cases: Administrative Law and Procedure C~:::>419; Courts 100(1); Statutes C=>278.2.] retroactiv­ ity, n. "'Retroactivity' is a term often used by lawyers but rarely defined. On analysis it soon becomes apparent, moreover, that it is used to cover at least two distinct concepts. The first, which may be called 'true retroactivity,' consists in the application of a new rule of law to an act or transaction which was completed before the rule was promulgated. The second concept, which will be referred to as 'quasi· retroactivity,' occurs when a new rule of law is applied to an act or transaction in the process of completion.... [T] he foundation of these concepts is the distinction between completed and pending transactions ...." T.C. Hartley, The Foundations of European Community Law 129 (1981).

retroactive law. (18c) A legislative act that looks backward or contemplates the past, affecting acts or facts that existed before the act came into effect. - A retroactive law is not unconstitutional unless it (1) is in the nature of an ex post facto law or a bill of attainder, (2) impairs the obligation of contracts, (3) divests vested rights, or (4) is constitutionally forbidden. Also termed retro­ spective law; retroactive statute; retrospective statute. [Cases: Statutes C=>278.3, 278.9.] retrocession. (17c) l. The act of ceding something back (such as a territory or jurisdiction). [Cases: United States C=>3.] 2. The return of a title or other interest in property to its former or rightful owner. 3. The process oftransferring all or part of a reinsured risk to another reinsurance company; reinsurance of reinsurance. ­ Subsequent retrocessions are referred to as first retro­ cession, second retrocession, and so on. 4. The amount of risk that is so transferred. retrocessionaire. Reinsurance. A reinsurer of a reinsurer. See RETROCESSION. retrocessional agreement. An agreement proViding for reinsurance of reinsurance. retrospectant evidence. See EVIDENCE. retrospective, adj. See RETROACTIVE. retrospective law. See RETROACTIVE LAW. retrospective statute. See RETROACTIVE LAW. return, n. (ISc) 1. A court officer's bringing back of an instrument to the court that issued it; RETURN OF WRIT . 5. Yield or profit . See RATE OF RETURN. return, vb.

1432

capital return. Tax. Revenue that represents the repay­ ment of cost or capital and thus is not taxable as income. - Also termed return ofcapital. fair return on investment. The usual or reasonable profit in a business, esp. a public utility. net return. 1he profit on an investment after deducting all investment expenses. return ofcapital. See capital return. return date. See return day under DAY. return day. See DAY. returnee. A refugee whom authorities have returned to the country of origin; one who has fled from the home country and then been sent back. [Cases: Aliens, Immi­ gration, and Citizenship (;=644.] returning board. An official body or commission that canvasses election returns. return of process. See PROOF OF SERVICE. return of service. See PROOF OF SERVICE. return of writ. (18c) The sheriff's bringing back a writ to the court that issued it, with a short written account (usu. on the back) ofthe manner in which the writ was executed. Often shortened to return. See RETURN (1). [Cases: Execution C=>334; Sheriffs and Constables C=>87.] reunification. The return of a child who has been removed from his or her parents because of abuse or neglect by one or both of them.• When a child has been removed from the home because of abuse or neglect, the state's primary goal is family reunification as long as this is in the best interests of the child. The state is required, in most instances, to provide the parent or parents with services that will enable them to proVide adequately for their child upon his or her return. After the enactment of the Adoption and Safe Families Act in 1997, states became more concerned with limiting the time that children are in foster care and less con­ cerned with lengthy reunification plans. - Also termed family reunification. See ADOPTION AND SAFE FAMILIES ACT; PERMANENCY PLAN; ADOPTION ASSISTANCE A:' 107.] revive, vb. revival statute. See STATUTE. revivor. (i8c) A proceeding to revive an action ended because of either the death ofone of the parties or some other circumstance. [Cases: Abatement and Revival Equity 167­ 195.] - revoke, vb. revocation hearing. See HEARING. revocatory action (rev-a-k 151-199.] RFA. abbr. REQUEST FOR ADMISSION. RFI. abbr. REQUEST FOR INSTRUCTIONS. RFP. abbr. 1. REQUEST FOR PRODUCTION. 2. See REQUEST FOR PROPOSAL.

r.g. abbr. REGULA GENERALIS. rhadamanthine (rad-. 5. (often pl.) The interest, claim, or own­ ership that one has in tangible or intangible property 3.] expectant right. A right that is contingent on the occur­ rence of some future event; a contingent right. fundamental right. See FUNDAMENTAL RIGHT. imperfect right. A right that is recognized by the law but is not enforceable.• Examples include time­ barred claims and claims exceeding the local limits of a court's jurisdiction. "[Tlhere are certain rights, sometimes called imperfect rights, which the law recognizes but will not enforce directly. Thus a statute· barred debt cannot be recovered in a court of law, but for certain purposes the existence of the debt has legal significance. If the debtor pays the money, he cannot later sue to recover it as money paid without consideration; and the imperfect right has the faculty of becoming perfect if the debtor makes an acknowledgment of the debt from which there can be inferred a promise to pay." George Whitecross Paton, A Textbook ofJurisprudence 286 (G.W. Paton & David P. Derham eds., 4th ed. 1972).

imprescriptible right. A right that cannot be lost to prescription. inalienable right. A right that cannot be transferred or surrendered; esp., a natural right such as the right to own property. - Also termed inherent right. incorporeal right. A right to intangible, rather than tangible, property.• A right to a legal action (a chose in action) is an incorporeal right. See chose in action under CHOSE. inherent right. See inalienable right.

legal right. 1. A right created or recognized by law.

• The breach of a legal right is usu. remediable by monetary damages. 2. A right historically recog­ nized by common-law courts. Cf. equitable right. 3. The capacity of asserting a legally recognized claim against one with a correlative duty to act. natural right. A right that is conceived as part of natural law and that is therefore thought to exist independently of rights created by government or society, such as the right to life, liberty, and property. See NATURAL LAW. negative right. A right entitling a person to have another refrain from doing an act that might harm the person entitled. Cf. positive right.

patent right. A right secured by a patent. [Cases: Patents C:::::> l.} perfect right. A right that is recognized by the law and is fully enforceable. peripheral right. A right that surrounds or springs from another right. personal right. 1. A right that forms part of a person's legal status or personal condition, as opposed to the person's estate. 2. See right in personam. political right. 1he right to participate in the establish­ ment or administration of government, such as the right to vote or the right to hold public office. - Also termed political liberty. [Cases: Constitutional Law 1460-1482; Elections 1; Officers and Public Employees C=.) 18.] positive right. A right entitling a person to have another do some act for the benefit ofthe person entitled. Cf. negative right. precarious right. A right enjoyed at the pleasure of another; a right that can be revoked at any time. primary right. A right prescribed by the substantive law, such as a right not to be defamed or assaulted.• Ihe enforcement of a primary right is termed specific enforcement. principal right. A right to which has been added a supplementary right in the same owner. Cf. acces­ sory right. private right. A personal right, as opposed to a right of the public or the state. Cf. public right. procedural right. (1911) A right that derives from legal or administrative procedure; a right that helps in the protection or enforcement of a substantive right. Cf. substantive right. property right. (1853) A right to specific property, whether tangible or intangible. [Cases: Constitutional Law C:::::>3874.] proprietary right. A right that is part of a person's estate, assets, or property, as opposed to a right arising from the person's legal status. public right. A right belonging to all citizens and usu. vested in and exercised by a public office or political entity. Cf. private right. real right. 1. Civil law. A right that is connected with a thing rather than a person .• Real rights include ownership, use, habitation, usufruct, predial servi­ tude, pledge, and real mortgage. ''The term 'real rights' Uura in re) is an abstraction unknown to claSSical Roman law. The classical jurists were preoc· cupied with the availability of remedies rather than the existence of substantive rights, and did not have a generic term to include all 'rights' which ciVilian scholars of follow· ing generations classified as 'real.' The expression ('real rights') was first coined by medieval writers elaborating on the Digest in an effort to explain ancient procedural forms of action in terms of substantive rights." A.N. Yiannopo· ulos, Real Rights in Louisiana and Comparative Law, 23 La. L. Rev. 161, 163 (1963).

2. JUS IN RE. 3. See right in rem.

1438

right against self-incrimination

relative right. A right that arises from and depends on someone else's right, as distinguished from an absolute right. Cf. absolute right. remedial right. The secondary right to have a remedy that arises when a primary right is broken. See sec­ ondary right. restitutory right. A right to restitution. right in personam (in p:Jr-soh-n:Jm). An interest protected solely against specific individuals. ­ Also termed personal right; jus in personam. See IN PERSONAM.

right in rem (in rem). A right, often negative, exercis­ able against the world at large. - Also termed real right; jus in rem. See IN REM. "A right in rem need not relate to a tangible res. Thus a right that one's reputation should not be unjustifiably attacked is today described as a right in rem, since it is a right that avails against persons generally. This shows how far the conception has developed from the Roman notion of actio in rem, for one who sues to protect his reputation is not asking for judgment for a specific res. It should also be noticed that on breach of a right in rem, a right in personam arises against the aggressor." George Whitecross Paton, A Textbook ofJurisprudence 300 (G.w. Paton & David P. Derham eds., 4th ed. 1972).

secondary right. A right prescribed by procedural law to enforce a substantive right, such as the right to damages for a breach of contract. - The enforce­ ment ofa secondary right is variously termed second­ ary enforcement, remedial enforcement, or sanctional enforcement. Also termed remedial right; sanction­ ing right. substantial right. (18c) An essential right that poten­ tially affects the outcome of a lawsuit and is capable oflegal enforcement and protection, as distinguished from a mere technical or procedural right. substantive right (s:lb-st:Jn-tiv). (I8c) A right that can be protected or enforced by law; a right of substance rather than form. Cf. procedural right. vested right. A right that so completely and definitely belongs to a person that it cannot be impaired or taken away without the person's consent. [Cases: Constitutional Law (::::::>2630-2655.] right against self-incrimination. (1911) A criminal defendant's or a witness's constitutional right under the Fifth Amendment, but waivable under certain con­ ditions - guaranteeing that a person cannot be com­ pelled by the government to testify if the testimony might result in the person's being criminally pros­ ecuted. _ Although this right is most often asserted during a criminal prosecution, a person can also "plead the Fifth" in a civil, legislative, administrative, or grand-jury proceeding. - Also termed privilege against self-incrimination; right to remain silent. See SELF-INCRIMINATION. [Cases: Criminal Law (::::::>393; Witnesses (::::::>297.1 "The right against self·incrimination, protected by the Fifth Amendment, is central to the accusatorial system of criminal justice: together with the presumption of inno· cence, the right against self· incrimination ensures that the

state must bear the burden of prosecution .... The right against self-incrimination is personal. It may be claimed only by the person who himself might be at risk for testify· ing. It may not be claimed on behalf of another ...." Jethro K. Lieberman, The Evolving Constitution 481-82 (1992).

right-and-wrong test. See MCNAGHTEN RULES. rightful, adj. 1. (Of an action) equitable; fair . 2. (Of a person) legitimately entitled to a position . 3. (Of an office or piece of property) that one is entitled to . right heir. See HEIR. right in personam. See RIGHT. right in re aliena. See JUS IN RE ALIENA. right in rem. See RIGHT. right in re propria. See JUS IN RE PROPRIA. right not to be qnestioned. See privilege against self­ incrimination under PRIVILEGE (3). right of action. 1. The right to bring a specific case to court. [Cases: Action C::' 1, 2.] 2. A right that can be enforced by legal action; a chose in action. Cf. CAUSE OF ACTION. [Cases; Action (::::::> 1,2; Property ('~5.5.] right of angary. See ANGARY. right of approach. Int'llaw. The right of a warship on the high seas to draw near another vessel to determine its nationality. [Cases: War and National Emergency (::::::>20.] right of assembly. The constitutional right guaran­ teed by the First Amendment of the people to gather peacefully for public expression of religion, politics, or grievances. - Also termed freedom ofassembly; right to assemble. Cf. FREEDOM OF ASSOCIATION; unlawful assembly under ASSEMBLY. [Cases: Constitutional Law (;::>1430,1431.] right of audience. A right to appear and be heard in a given court. _ The term is chiefly used in England to denote the right of a certain type oflawyer to appear in a certain type of court. right of common. See PROFIT A PRENDRE. right-of-conscience law. A statute allowing healthcare professionals to refuse to provide services that they find morally objectionable. right of contribution. See CONTRIBUTION (1). right of discussion. Scots law. See BENEFIT OF DISCUS­ SION.

right of dissent and appraisal. See APPRAISAL REMEDY. right of division. Scots law. See BENEFIT OF DIVISION. right of election. Wills & estates. A surviving spouse's statutory right to choose either the gifts given by the deceased spouse in the will or a forced share or a share of the estate as defined in the probate statute. Also termed widow's election. See ELECTION (2); augmented estate under ESTATE (3). [Cases: Descent and Distribu­ tion Wills (::::::>778-818.]

1439

right of entry. 1. The right of taking or resuming pos­ session of land or other real property in a peaceable manner. 2. POWER OF TERMINATION. 3. The right to go into another's real property for a special purpose without committing trespass. - An example is a land­ lord's right to enter a tenant's property to make repairs. [Cases: Trespass ~~24.J 4. The right of an alien to go into a jurisdiction for a special purpose. - An example is an exchange student's right to enter another country to attend college. [Cases: Aliens, Immigration, and Cit­ izenship C=' 162, 163.J right of entry for breach of condition. See POWER OF TERMINATION.

right ofentry for condition broken. See POWER OF TER­ MINATION.

right of search

right of possession. The right to hold, use, occupy, or otherwise enjoy a given property; esp., the right to enter real property and eject or evict a wrongful possessor. [Cases: Forcible Entry and Detainer 9(2).J right of preemption. A potential buyer's contractual right to have the first opportunity to buy, at a speCified price, ifthe seller chooses to sell within the contracted period. - For example, if Beth has a right of preemp­ tion on Sam's house for five years at $100,000, Sam can either keep the house for five years (in which case Beth's right expires) or, ifhe wishes to sell during those five years, offer the house to Beth, who can either buy it for $100,000 or refuse to buy. If Beth refuses, Sam can sell to someone else. - Also termed first option to buy. Cf. RIGHT OF FIRST REFUSAL. [Cases: Contracts 16.5; Sales Vendor and Purchaser C-~ 18(.5).] right ofprivacy. 1. The right to personal autonomy. _ The u.s. Constitution does not explicitly provide for a right of privacy or for a general right of personal autonomy, but the Supreme Court has repeatedly ruled that a right of personal autonomy is implied in the "zones of privacy" created by specific constitutional guaran­ tees. [Cases: Constitutional Law .:> 121O-1275.J 2. The right of a person and the person's property to be free from unwarranted public scrutiny or exposure. - Also termed right to privacy. See INVASION OF PRIVACY. right of publicity. The right to control the use of one's own name, picture, or likeness and to prevent another from using it for commercial benefit without one's consent. [Cases: Torts 384.]

right of exoneration. See EQUITY OF EXONERATION. right of family integrity. A fundamental and substan­ tive due-process right for a family unit to be free of unjustified state interference. - While not specifically mentioned in the u.s. Constitution, this right is said to i emanate from it. The contours of the right are nebulous and incompletely defined, but it at least includes the right to bear children, to rear them, and to guide them according to the parents' beliefs, as well as the right of children to be raised by their parents free of unwar- i ranted interference by state officials. The right restricts i state action under the Fourteenth Amendment. Inter­ ference is not permitted in the absence ofa compelling state interest and is reviewed under a strict-scrutiny standard. Most courts require a state to establish by 'The right of publicity IS a state-law created intellectual clear and convincing evidence that interference in a property right whose infringement is a commerCial tort of unfair competition. It is a distinct legal category, not just familial relationship is justified. - Also termed right to ! a 'kind of' trademark, copyright, false advertising or right family integrity. See PARENTAL-AUTONOMY DOCTRINE; of privacy." 1 j. Thomas McCarthy. The Rights of Publicity PARENTAL-PRIVILEGE DOCTRINE. Cf. freedom of and Privacy § 1:3, at 1-2 (2d ed. 2000). intimate association under FREEDOM OF ASSOCIATION. right of redemption. 1. See EQUITY OF REDEMPTION. 2. [Cases: Constitutional Law (:=)4382.] See STATUTORY RIGHT OF REDEMPTION. right of first publication. See common-law copyright right of reentry. See POWER OF TERMIN ATION. under COPYRIGHT. right of relief. Scots law. See EQUITY OF SUBROGATION. right of first refusal. 1. A potential buyer's contractual right of reproduction. See REPRODUCTION RIGHT. right to meet the terms of a third party's higher offer. - For example, if Beth has a right of first refusal on the right of rescission. See RIGHT TO RESCIND. purchase ofSam'~ house, and if Terry offers to buy the right of retainer. A trustee's power to withhold trust house for $300,000, then Beth can match this offer and funds or property from distribution, exercisable when prevent Terry from buying it. Cf. RIGHT OF PREEMP­ the beneficiary owes money to the trust. [Cases: Trusts TION. [Cases: Contracts (:=> 16.5, 172; Sales 64; (>=>282.] Vendor and Purchaser 18(.5), 57.] 2. Family law. right of retention. See RETENTION. The right of a parent to be offered the opportunity to have custody of a child other than during a usual visi­ right of revolution.lhe inherent right of a people to cast tation period before the other parent turns to a third­ out its rulers, change its polity, or effect radical reforms in its system of government or institutions, by force party caregiver. - The right may be exercised by either parent, and may exist in circumstances that are fore­ or general uprising, when the legal and constitutional seeable (e.g., a business trip) or unforeseeable (e.g., an methods of making such changes have proved inad­ equate or are so obstructed as to be unavailable. illness). [Cases: Child Custody 149.J right of search. Int'llaw. The right to stop, visit, and right of fishery. See FISHERY (1). examine vessels on the high seas to discover whether right of innocent passage. See I;'oI;'oIOCENT PASSAGE. they or the goods they carry are liable to capture; esp., right of occupancy. See INDIAN TITLE. a belligerent state's right to stop any merchant vessel right of petition. See RIGHT TO PETITION. of a neutral state on the high seas and to search as

right of subrogation

reasonably necessary to determine whether the ship has become liable to capture under the international law of naval warfare. - This right carries with it no right to destroy without full examination, unless those on a given vessel actively resist. - Also termed right of visit; right ojvisit and search; right ojvisitation; right of visitation and search. See VISIT. right of subrogation. 1. See SUBROGATION. 2. See EQUITY OF SUBROGATION.

right of suit. A person's right to seek redress in a court. [Cases: Action C::::>l.J right of support. Property. 1. A landowner's right to have the land supported by adjacent land and by the underly­ ing earth. [Cases: Adjoining Landowners C::::>2.J 2. A servitude giving the owner of a house the right to rest timber on the walls of a neighboring house. right of survivorship. A joint tenant's right to succeed to the whole estate upon the death of the other joint tenant. - Also termed jus accrescendi. See SURVI­ voRsHIp; joint tenancy under TENANCY. [Cases: Joint Tenancy C::::>6.J right of termination. A remedy involving the ending of contractual relations, accorded to a party to a contract when the other party breaches a duty that arises under the contract. - The right of termination is contrasted with a right to rescind, which arises when the other party breaches a duty that arises independently of the contract. Also termed right to terminate. [Cases: Contracts ~~ 217; Sales C::::>84.] right of transit passage. See TRANSIT PASSAGE. right of visit. See RIGHT OF SEARCH. right of visit and search. See RIGHT OF SEARCH. right of visitation. 1. VISITATION RIGHT. 2. RIGHT OF SEARCH.

right of visitation and search. See RIGHT OF SEARCH. right-of-way. 1. The right to pass through property owned by another. - A right-of-way may be estab­ lished by contract, by longstanding usage, or by public authority (as with a highway). Cf. EASEMENT. [Cases: Easements C::::> 1.] 2. The right to build and operate a railway line or a highway on land belonging to another, or the land so used. [Cases: Railroads C::::>69.] 3. The to take precedence in traffic. [Cases: Automobiles 171(4); Highways 415.] right to petition. (17c) The constitutional right - guar­ anteed by the First Amendment - ofthe people to make formal requests to the government, as by lobbying or writing letters to public officials. Also termed right ofpetition;freedom ofpetition. [Cases: Constitutional Law (::::-J 1435-1438.] right to privacy. See RIGHT OF PRIVACY. right to pursue happiness. See HAPPINESS, RIGHT TO PURSUE.

right to refuse treatment. See RIGHT TO DIE. right to remain silent. See RIGHT AGAINST SELF-INCRIM­ INATION.

right to rescind. The remedy accorded to a party to a contract when the other party breaches a duty that arises independently of the contract .• The right to rescind is contrasted with a right oftermination, which arises when the other party breaches a duty that arises under the contract. - Also termed right of rescission. [Cases: Contracts (:::::>258.] right to terminate. See RIGHT OF TERMINATION. right to travel. (1838) A person's constitutional right guaranteed by the Privileges and Immunities Clause ­ to travel freely between states. right to vote. See SUFFRAGE (1). right-to-work law. (1958) A state law that prevents labor­ management agreements requiring a person to join a union as a condition of employment. See open shop under SHOP. [Cases: Labor and Employment (::~~964, 1264.] right-wrong test. See MCNAGHTEN RULES. rigid constitution. See CONSTITUTION. rigor juris (rig-;:lr joor-is). [Latin] Strictness of law. Cf. GRATIA CURIAE.

rigor mortis (rig-;:lr mor-tis). The temporary stiffening of a body's joints and muscles after death .• The onset of rigor mortis can vary from 15 minutes to several hours after death, depending on the body's condition and on atmospheric factors. ringing out. See RINGING UP. ringing the cbanges. Fraud conSisting in the offender's using a large bill to pay for a small purchase, waiting for the shopkeeper to put change on the counter, and then, by a series of maneuvers involving changes of mind - such as asking for some other article of little value or for smaller change for some of the money on the counter creating a confused situation in which the offender picks up more the money than due. [Cases: Larceny (:::::> 14(1).] ringing up. A method by which commodities dealers cooperate to discharge contracts for future delivery in advance by using offsets, cancellations, and price

riparian proprietor

adjustments, thus saving the cost of actual delivery and change of possession. Also termed ringing out. riot, n. (14c) 1. An assemblage of three or more persons in a public place taking concerted action in a turbulent and disorderly manner for a common purpose (regard­ less of the lawfulness of that purpose). 2. An unlawful disturbance of the peace by an assemblage of usu. three or more persons acting with a common purpose in a violent or tumultuous manner that threatens or terror­ izes the public or an institution. Cf. unlawful assembly under ASSEMBLY; CIVIL COMMOTION; ROUT; AFFRAY. [Cases: Riot (;=:> 1.J riotous, adj. riot, vb. "A riot is defined as an unlawful assembly (i.e. an assembly come together in pursuance of an unlawful purpose), con­ sisting of at least three persons, which has begun to create a breach of the peace. At Common Law it is an indictable misdemeanour, punishable by a fine and imprisonment. But the statutory form of it, introduced by the Riot Act of 1714, is better known. By that statute, passed to deal with Jacobite disturbances, it was provided that the members of a riotous assembly of twelve or more persons which does not disperse within an hour after the reading by a magis­ trate of the proclamation contained in the Act, become guilty of felony, which, at the time of the passing of the Act, was a capital offence, and is, even now, punishable with imprisonment for life." Edward Jenks, The Book of English Law 136 (P. B. Fairest ed., 6th ed. 1967). "A riot is a tumultuous disturbance of the peace by three or more persons acting together (a) in the commission of a crime by open force, or (b) in the execution of some enterprise, lawful or unlawful, in such a violent, turbulent and unauthorized manner as to create likelihood of public terror and alarm .... When they come together for this purpose they are gUilty of unlawful assembly. When they start on their way to carry out their common design they are guilty of rout. In the actual execution of their design they are gUilty of riot." Rollin M. Perkins & Ronald N. Boyce, Criminal Law483 (3d ed. 1982).

Riot Act. A 1714 English statute that made it a capital offense for ] 2 or more rioters to remain together for an hour after a magistrate has officially proclaimed that rioters must disperse.• This statute was not generally accepted in the United States and did not become a part of American common law. It did, however, become a permanent part of the English language in the slang phrase reading the riot act (meaning "to reprimand vigorously"), which originally referred to the official command for rioters to disperse. riotous assembly. See ASSEMBLY. ripae muniendae causa (rl-pee myoo-nee-en-dee kaw-z39-46; Waters and Water Courses 34-49,109.] riparian land. See LAND. riparian proprietor. (1808) A person who is in posses­ sion of riparian land or who owns an estate in it; a land­ owner whose property borders on a stream or river. See

riparian right

riparian land under LAND. [Cases: Navigable Waters (;:::;39(1); Waters and Water Courses (;:::;39.] riparian right. (often pl.) (1860) The right ofa landowner whose property borders on a body of water or water­ course.• Such a landowner traditionally has the right to make reasonable use of the water. Also termed water right. [Cases: Navigable Waters C::;)39-46; Waters and Water Courses (;:::;34-47.] riparian-rights doctrine. (1921) The rule that owners of land bordering on a waterway have equal rights to use the water passing through or by their property. Cf. PRIOR-APPROPRIATION DOCTRINE. [Cases: Navigable Waters Waters and Water Courses (;:::>40.] ripeness, n. 1. The state of a dispute that has reached, but has not passed. the point when the facts have developed sufficiently to permit an intelligent and useful decision to be made. 2. The requirement that this state must exist before a court will decide a controversy. See JUSTICIA­ BILITY. Cf. MOOTNESS DOCTRINE; PREMATURITY (1). [Cases: Action Federal Courts - ripe, ripen, vb. adj. ripper act. Slang. A statute that gives a government's chief executive broad powers to appoint and remove department heads or other subordinate officials. rise, vb. 1. (Of a court) to adjourn finally at the end of a term. 2. (Of spectators and participants in a court­ room) to stand when the judge enters or exits. 3. (Of a court) to take a recess or temporary break, as at the end ofa day. 4. Parliamentary law. (Of a special committee that has exhausted its business) to dissolve and send a report to the referring body.• A committee's rising is equivalent to a deliberative assembly's adjourning sine die. - Also termed rise and report. Cf. adjourn sine die under ADJOURN (2). rising vote. See VOTE (4). rising vote of thanks. See rising vote under VOTE (4). risk, n. (17c) 1. The uncertainty of a result, happening, or loss; the chance of injury, damage, or loss; esp., the exis­ tence and extent of the possibility of harm <many feel that skydiving is not worth the risk>. See ASSUMPTION OF THE RISK. 2. Liability for injury, damage, or loss if it occurs . 3. Insurance. The chance or degree ofprobability ofloss to the subject matter of an insurance policy . Cf. PERIL [Cases: Insurance (;:::; 1542.] 4 . .Insurance. The amount that an insurer stands to lose . 5 . .Insurance. A person or thing that an insurer considers a hazard; someone or something that might be covered by an insurance policy <she's a poor risk for health insur­ ance>. [Cases: Insurance (>~ 1542(3).] 6. Insurance. The type of loss covered by a policy; a hazard from a specified source 129.] RIT. abbr. Rochester Institute of Technology. See NATIONAL TECHNICAL INSTITUTE FOR THE DEAF.

river. A natural, flowing body of water that empties into another bodv of water, such as a lake, sea, or channel. [Cases: Xav'igable Waters 1; Waters and Water Courses (;.::::>38.]

international river. A river that flows through or between two or more countries.

national river. A river wholly contained within a Single country.• That country has exclusive territorial rights over the river. [Cases: Navigable Waters (;.::::>2.]

private river. A river to which a riparian owner may claim ownership of the riverbed because the river is unnavigable or navigable only by vessels with shallow drafts.• A navigable private river is not wholly owned by a private person and cannot be closed to public use; people may still make ordinary use of the river for transportation and navigation. [Cases: Navigable Waters (;.::::>4.]

RL/e. See revolving letter of credit under

LETTER OF

CREDIT.

RMA. abbr.

RISK MANAGEMENT AGENCY.

RMS. abbr.

REPRESSED-MEMORY SYNDROME.

roadstead. Maritime law. A convenient or safe place where vessels usu. anchor. [Cases: Collision (;.::::>69.] robbery, n. (12c) The illegal taking of property from the person of another, or in the person's presence, by violence or intimidation; aggravated larceny.• Robbery is usu. a felony, but some jurisdictions classify some robberies as high misdemeanors. Also termed (in Latin) crimen roberiae. See LARCENY; THEFT. Cf. BURGLARY. [Cases: Robbery(;'::::> 1.] - rob, vb.

"Robbery is larceny from the person by violence or intimida­ tion. It is a felony both at common law and under modern statutes. Under some of the new penal codes robbery does not require an actual taking of property. If force or intimidation is used in the attempt to commit theft this is sufficient." Rollin M. Perkins & Ronald N. Boyce, Criminal Law 343 (3d ed. 1982),

aggravated robbery. (1878) Robbery committed by a person who either carries a dangerous weapon ­ often called armed robbery or inflicts bodily harm on someone during the robbery.• Some statutes also specify that a robbery is aggravated when the victim is a member of a protected class, such as children or the elderly. [Cases: Robbery 11.] armed robbery. (1926) Robbery committed by a person carrying a dangerous weapon, regardless of whether the weapon is revealed or used.• Most states punish armed robbery as an aggravated form of robbery rather than as a separate crime. [Cases: Robbery (;.::::> 11.]

conjoint robbery (k~n-;oynt). A robbery committed by two or more persons. [Cases: Robbery (;.::::> 15.1

highway robbery. 1. Robbery committed against a traveler on ornear a public highway. [Cases: Robbery (;.::::> 1.] 2. Figuratively, a price or fee that is unreason­ ably high; excessive profit or advantage. simple robbery. (18c) Robbery that does not involve an aggravating factor or circumstance. [Cases: Robbery (;.::::> 1.] robe. (I8c) 1. The gown worn by a judge while presiding over court.• In the U.S., judges generally wear plain black gowns. In the u.K., judicial robes vary in color and adornment, depending on the judge's rank, the season, and the court, and are traditionally worn with white horsehair wigs. Also termed judicial robe. 2. (often cap.) The legal or judicial profession <eminent members ofthe robe>. Robert's Rules. 1. A parliamentary manual titled Robert's Rules ofOrder, originally written in 1875-76 by Henry M. Robert (1837-1923).• The manual went through three editions under its original title and three more (beginning in 1915) under the title Robert's Rules of Order Revised. Since 1970 it has been titled Robert's Rules of Order Newly Revised. It is the best selling and most commonly adopted parliamentary manual in the United States. 2. Any parliamentary manual that includes "Robert's Rules" in its title .• 1he copyright on the first several editions has expired, and many imi­ tators have adapted those editions in varying degrees of faithfulness to the original. 3. (Sing.) RULE (3). See PARLIAMENTARY MANUAL.

Robinson-Patman Act. A federal statute (specif., an amendment to the Clayton Act) prohibiting price discrimination that hinders competition or tends to create a monopoly. 15 USCA § 13. See ANTITRUST LAW; CLAYTON ACT. [Cases: Antitrust and Trade Regulation (;.::::>452.]

Rochin rule. The now-rejected principle that uncon­ stitutionally obtained evidence is admissible against

rocket docket

the accused unless the evidence was obtained in a manner that shocks the conscience (such as pumping the stomach of a suspect to obtain illegal drugs that the suspect has swallowed, as occurred in the Rochin v. California case). -The Supreme Court handed down Rochin before the Fourth Amendment exclUSionary rule applied to the states. Rochin v. California, 342 U.S. 165, 72 S.Ct. 205 (1952). [Cases: Criminal Law (;::::>394.] rocket docket. (1987) 1. An accelerated dispute-resolu­ tion process. 2. A court or judicial district known for its speedy disposition of cases. 3. A similar administra­ tive process, in which disputes must be decided within a specified time (such as 60 days). ROD. abbr. See RECORD OF DECISION. rogatio testium. The production of a witness who can testify to the making of a nuncupative will. - The witness must confirm that the testator declared or expressed that the words spoken were a will. See nun­ cupative will under WILL. [Cases: Wills (;::::> 142.] rogatory letter (rog-~-tor-ee). See LETTER OF REQUEST. rogue court. See COURT. rogue jury. See JURY. roll, n. (14c) 1. A record of a court's or public office's proceedings. [Cases: Judgment (;::::>277; Records 6, 32.] 2. An official list of the persons and property subject to taxation. - Also termed (in sense 2) tax roll; tax list; assessment roll. Cf. TAXPAYERS' LISTS. [Cases: Taxation (;::::>2576.]3. Parliamentary law. The roster of those entitled to vote. Also termed roll of delegates; roll ofmembers. roll call. See CALL (1). roll-call vote. See VOTE (4). rolled-up plea. See PLEA b). rolling stock. Movable property, such as locomotives and rail cars, owned by a railroad. roll of delegates. See ROLL (3). roll of members. See ROLL (3). rollover, n. 1. The extension or renewal of a short-term loan; the refinancing ofa maturing loan or note. 2. The transfer of funds (such as IRA funds) to a new invest­ ment of the same type, esp. so as to defer payment of taxes. [Cases: Internal Revenue (;::::>3587, 3594.] roll over, vb. rollover mortgage. See renegotiable-rate mortgage under MORTGAGE.

Roman-Dutch law. A system of law in Holland from the mid-15th century to the early 19th century, based on a mixture of Germanic customary law and Roman law as interpreted in medieval and Renaissance lawbooks_ ­ This law forms the basis of modern South African law, the law of several other countries in southern Africa, and the law of Sri Lanka. "The phrase 'Roman··Dutch Law' was invented by Simon van Leeuwen. who employed it as the sub-title of his work entitled Paratitla Juris Novissimi, published at Leyden in 1652. Subsequently his larger and better known treatise

1444 on the 'Roman-Dutch Law' was issued under that name in the year 1664. ''The system of law thus described is that which obtained in the province of Holland from the middle of the fifteenth to the early years of the nineteenth century. Its main prin· ciples were carried by the Dutch into their settlements in the East and West Indies; and when some of these, namely. the Cape of Good Hope, Ceylon, and part of Guiana, at the end of the eighteenth and the beginning of the nineteenth century, passed under the dominion of the Crown of Great Britain, the old law was retained as the common law of the territories which now became British colonies. With the expansion of the British Empire in South Africa, the sphere of the Roman-Dutch Law has extended its boundar· ies, until the whole of the area comprised within the Union of South Africa ... has adopted this system as its common law. This is the more remarkable since in Holland itself and in the Dutch colonies of the present day the old law has been replaced by codes ...." RW. Lee, An Introduction to Roman-Dutch Law 2 (4th ed. 1946).

Romanesque law. See CIVIL LAW (1). Romanist, n. One who is versed in or practices Roman law; a Roman-law specialist. Roman law. (l6c) The legal system ofthe ancient Romans, forming the basis of the modern civil law; CIVIL LAW (1). 'The Roman law is the body of rules that governed the social relations of many peoples in Europe, Asia. and Africa for some period between the earliest prehistoric times and 1453 A.D. This date should perhaps be extended to 1900 A.D., or even to the present time. and we might include America in the territory concerned .... Yet the essential fact is that no present-day community ... consciously applies as binding upon its citizens the rules of Roman law in their unmodified form. That law is an historical fact. It would have only a tepid historical interest ... if it were not for the circumstance that. before it became a purely histori­ cal fact, it was worked into the foundation and framework of what is called the civil law ...." Max Radin, Handbook of Roman Law 1 (1927). "Roman law is not only the best-known, the most highly developed, and the most influential of all legal systems of the past; apart from English law, it is also the only one whose entire and unbroken history can be traced from early and primitive beginnings to a stage of elaborate perfection in the hands of skilled specialists." Hans julius Wolff, Roman Law: An Historical Introduction 5 (1951).

Rome Act. Copyright. A 1928 revision of the Berne Convention adding the moral rights of attribution and integrity to the minimum standards of protec­ tion that member nations must recognize, creating a compulsory license of recorded performances tor radio broadcasting, and specifying that the term of protec­ tion for joint works must be measured from the death of the last surviving coauthor. Also termed Rome

Act of 1928; 1928 Rome Act. Rome Convention. See ROME CONVENTION ON RELATED RIGHTS.

Rome Convention on Related Rights. Copyright. A 1961 treaty setting minimum standards for neighboring rights of performers, producers, and broadcasters. ­ The United States is not a signatory. Neighboring rights were not protected under the Paris Convention or the Berne Convention. They are part ofthe copyright pro­ tection under the Agreement on Trade-Related Aspects

1445

ofIntellectual Property (TRIPs). - Also termed Con­ vention for the Protection ofPerformers, Producers of Phonograms and Broadcasting Organizations. Often shortened to Rome Convention. See NEIGHBORING RIGHT.

Rooker-Feldman doctrine. The rule that a federal court cannot consider claims actually decided by a state court or claims inextricably intertwined with an earlier state-court judgment. Rooker v. Fidelity Trust Co., 263 U.S. 413,415-16,44 S.Ct. 149,150 (1923); District of Columbia Ct. ofApp. v. Feldman, 460 U.S. 462, 476, 103 S.Ct. 1303, 1311 (1983).• This doctrine precludes "a party losing in state court ... from seeking what in sub­ stance would be appellate review of [a] state judgment in a United States district court, based on the losing party's claim that the state judgment itself violates the loser's federal rights." Johnson v. De Grandy, 512 U.S. 997,1005-06,114 S.Ct. 2647, 2654 (1994). [Cases: Courts (:::::>509.] root. Civil law. A descendant. root of title. (1846) The recorded land transaction, usu. at least 40 years old, that is used to begin a title search. See CHAIN OF TITLE; TITLE SEARCH. ROR. abbr. RELEASE ON RECOGNIZANCE. Roth IRA. See INDIVIDUAL RETIREMENT ACCOUNT. round lot. See LOT (3). round-up. See dragnet arrest under ARREST. roup. Scots law. A sale by auction (usu. public). rout (rowt), n. (I5c) 'The offense that occurs when an unlawful assembly makes some move toward the accomplishment ofits participants' common purpose. Cf. RIOT. [Cases: Riot (:::::> 1.] 'The word 'rout' comes from the same source as the word 'route.' It signifies that three or more who have gathered together in unlawful assembly are 'on their way.' It is not necessary for guilt of this offense that the design be actually carried out, nor that the journey be made in a tumultuous manner." Rollin M. Perkins & Ronald N. Boyce, Criminal Law 483 (3d ed. 1982).

routine-activities theory. (1985) The theory that criminal acts occur when (1) a person is motivated to commit the offense, (2) a vulnerable victim is avail­ able, and (3) there is insufficient protection to prevent the crime. Cf. CONTROL THEORY; RATIONAL-CHOICE THEORY; STRAIN THEORY.

Royal Marriages Act. A 1772 statute (12 Geo. 3, ch. 1) forbidding members ofthe royal family from marrying without the sovereign's permission, except on certain conditions. "Royal Marriages Act .... An Act occasioned by George Ill's fear of the effect on the dignity and honour of the royal family of members thereof contracting unsuitable mar­ riages, two of his brothers having done so .... It provided that marriages of descendants of George II, other than the issue of princesses who marry into foreign families, should not be valid unless they had the consent of the King in CounCil, or, if the parties were aged over 25, they had given 12 months' notice to the Privy Council. unless during that time both Houses of Parliament expressly declare disap·

royalty proval of the proposed marriage." David M. Walker, The Oxford Companion to Law 1091 (1980).

royalty. (1839) 1. Intellectual property. A payment in addition to or in place ofan up-front payment - made to an author or inventor for each copy of a work or article sold under a copyright or patent. • Royalties are often paid per item made, used, or sold, or per time elapsed. [Cases: Copyrights and Intellectual Property C-:::>48; Patents 74.J shut-in royalty. A payment made by an oil-and-gas lessee to the lessor to keep the lease in force when a well capable ofproducing is not utilized because there is no market for the oil or gas.• Generally, without such a payment, the lease will terminate at the end of the primary term unless actual production has begun. [Cases: Mines and Minerals C=>78.l(3).] royalty interest. Oil & gas. A share of production - or the value or proceeds of production, free of the costs of production - when and if there is production.• A royalty interest is usu. expressed as a fraction (such as 1/6). A royalty-interest owner has no right to operate the property and therefore no right to lease the property or to share in bonuses or delay rentals. In some states a royalty owner has the right of ingress and egress to take the royalty production. Authorities are split over what costs are costs of production. Several different but related kinds of royalty interests are commonly encountered. See ROYALTY (2). rptr. abbr. REPORTER. RRB. abbr. RAILROAD RETIREMENT BOARD. R.S. See revised statutes under STATUTE. RSPA. abbr. RESEARCH AND SPECIAL PROGRAMS ADMIN­ ISTRATION.

RTC. abbr. RESOLUTION TRUST CORPORATION. rubber check. See bad check under CHECK. rubber-stamp seal. See NOTARY SEAL. rubric (roo-brik). 1. The title of a statute or code .2. A category or designation . 3. An authoritative rule, esp. for conducting a public worship service . 4. An introductory or explanatory note; a preface 104.J Rule 116 amendment. See amendment after final action under PATENT-APPLICATION AMENDMENT. Rule 312 amendment. See amendment after allowa/1ce under PATENT-APPLICATION AMENDMENT. rule absolute. See decree absolute under DECREE. rule against accumulations. See ACCUMULATIONS, RULE AGAINST.

rule against inalienability. The principle that property must not be made nontransferable. - Also termed rule against trusts ofperpetual duration. Cf. RULE AGAINST PERPETUITIES. [Cases: Property C=> 11.] rule against perpetuities. (sometimes cap.) (lSc) Property. The common-law rule prohibiting a grant of an estate unless the interest must vest, if at all, no later than 21 years (plus a period of gestation to cover a posthumous birth) after the death of some person alive when the interest was created.• The purpose of the rule was to limit the time that title to property could be suspended out of commerce because there was no owner who had title to the property and who could sell it or exercise other aspects of ownership. If the terms of the contract or gift exceeded the time limits of the

Rule in Wild's Case

rule, the gift or transaction was void. See MEASURING LIFE. Cf. ACCUMULATIONS, RULE AGAINST. [Cases: Per­ petuities "The true form of the Rule against Perpetuities is believed to be this: -... NO INTEREST SUBJECT TO A CONDITION PRECEDENT IS GOOD, UNLESS THE CONOITION MUST BE FULFILLED, IF AT ALL, WITHIN TWENTY-ONE

John Chipman Gray, The Rule Against Perpetuities 144 (1886).

YEARS AFTER 50 .. E liFE IN BEING AT THE CREATION OF THE INTEREST."

"Another scholar who spent a substantial part of an academic lifetime attempting to bring order and add sense to the rule [against perpetuities], W. Barton leach, described the rule as a 'technicality-ridden legal night­ mare' and a 'dangerous instrumentality in the hands of most members of the bar.'" Thomas F. Bergin & Paul G. Haskell, Preface to Estates in Land and Future Interests 178 (2d ed. 1984) (quoting leach, Perpetuities Legislation, Mas· sachusetts Style, 67 Harv. l. Rev. 1349 (1954»). 'The Rule Against Perpetuities is a rule against remoteness of vesting. A contingent future interest is invalid under the orthodox rule if, at the time of the creation of the interest, the circumstances are such that the contingency may go unresolved for too long a time. The Rule is not concerned with the duration of interests, that is, the length of time that they endure. It is not a rule against suspension of the power of alienation, nor a rule against restraints on alienation. It is not a rule that directly limits the duration of trusts .... The orthodox rule is satisfied if all contingent future interests are so created that they must vest, if they vest at all, within the perpetuities period." Robert J. lynn, The Modern Rule Against Perpetuities 9 (1966). "The common law Rule Against Perpetuities (modified by statute in some states) provides that no interest is valid unless it must vest within 21 years after lives in being when the interest was created. The rule is something of a misnomer. It does not limit the duration of a condition in a bequest, but rather limits the testator's power to earmark gifts for remote descendants." Richard A. Posner, Economic Analysis of Law § 18.7, at 394 (2d ed. 1977).

rule against trusts of perpetual duration. See

RULE

AGAINST INALIENABILITY.

rule day. See return day (3) under DAY. rule in Heydon's case. See MISCHIEF RULE. Rule in Shelley's Case. (1Sc) Property. The rule that if - in a single grant a freehold estate is given to a person and a remainder is given to the person's heirs, the remainder belongs to the named person and not the heirs, so that the person is held to have a fee simple absolute.• The rule, which dates from the 14th century but draws its name from the famous 16th-century case, has been abolished in most states. Wolfe v. Shelley, 76 Eng. Rep. 206 (K.B. 1581). [Cases: Estates in Property

C'='S.J "[TJhe rule in Shelley's Case, the Don Quixote of the law, which, like the last knight errant of chivalry, has long survived every cause that gave it birth and now wanders aimlessly through the reports, still vigorous, but equally useless and dangerous." Stamper v. Stamper, 28 S.E. 20, 22 (N.C. 1897).

Rule in Wild's Case. (1842) Property. The rule constru­ ing a grant to "A and h5 children" as a fee tail if h8 children do not exist at the effective date of the instru­ ment, and as a jOint tenancy if Ns children do exist at the effective date .• The rule has been abolished along with the fee tail in most states.

rulemaking

rulemaking, n. (1926) The process used by an admin­ istrative agency to formulate, amend, or repeal a rule or regulation. - Also termed administrative rulemak­ ing. Cf. ADMINISTRATIVE ADJUDICATION; INFORMAL AGENCY ACTION. [Cases: Administrative Law and Pro­ cedure C=>3S1-427.] - rulemaking, ad}. formal rulemaking. (1960) Agency rulemaking that, when required by statute or the agency's discretion, must be on the record after an opportunity for an agency hearing, and must comply with certain pro­ cedures, such as allowing the submission of evidence and the cross-examination of witnesses. Cf. informal rulemaking. [Cases: Administrative Law and Proce­ dure C-=::>3S1-427.]

informal rulemaking. (196S) Agency rulemaking in which the agency publishes a proposed regulation and receives public comments on the regulation, after which the regulation can take effect without the necessity of a formal hearing on the record.• Informal rulemaking is the most common proce­ dure followed by an agency in issuing its substantive rules. - Also termed notice-and-comment rulemak­ ing. See NOTICE-AND-COMMENT PERIOD. Cf. formal rulemaking. [Cases: Administrative Law and Proce­ dure C=>3S1-427.] rule nisi. See decree nisi under DECREE. rule of capture. 1. The doctrine that if the donee of a general power of appointment manifests an intent to assume control of the property for all purposes and not just for the purpose of appointing it to someone, the donee captures the property and the property goes to the donee's estate .• One common way for the donee to show an intent to assume control for all purposes is to include provisions in his or her will blending the appointing property with the donee's own property. 2. Property. The principle that wild animals belong to the person who captures them, regardless of whether they were originally on another person's land. [Cases: Animals C=> 1.5(3).] 3. Water law. The principle that a surface landowner can extract and appropriate all the groundwater beneath the land by drilling or pumping, even if doing so drains away groundwaters to the point of drying up springs and wells from which other land­ owners benefit. • This doctrine has been widely abol­ ished or limited by legislation. [Cases: Waters and Water Courses C=> 101.] 4. Oil & gas. A fundamental principle of oil-and-gas law holding that there is no liability for drainage of oil and gas from under the lands of another so long as there has been no trespass and all relevant statutes and regulations have been observed. - Also termed doctrine of capture; law of capture. Cf. AD COELUM DOCTRINE. [Cases: Mines and Minerals C=>47.] rule of completeness. See RULE OF OPTIONAL COMPLETE­ NESS.

rule of construction. See canon of construction under CANON (1).

1448

rule of court. (17c) A rule governing the practice or pro­ cedure in a given court . See LOCAL RULE. [Cases: Courts C=>S5; Federal Civil Pro­ cedure C=>21.] rule of decision. (1Sc) A rule, statute, body of law, or prior decision that provides the basis for deciding or adjudicating a case. [Cases: Courts C=>SS.] rule of doubt. 1. Copyright. The doctrine that unreadable or incomprehensible identifying material deposited with the U.S. Copyright Office may not be protected under copyright law because it cannot easily be examined to determine whether it qualifies .• This rule usu. applies to computer object code .• Unlike a Certificate of Registration, a filing under the rule of doubt is not prima facie evidence of a valid copyright. [Cases: Copyrights and Intellectual Property C=>4.] 2. Patents. An abandoned judicial doctrine holding that when there is doubt whether an invention is patentable, the patent should be issued so that the inventor can test its validity in court. rule of evidence. See EVIDENCE (4). rule of four. (1949) The convention that for certiorari to be granted by the U.S. Supreme Court, four justices must vote in favor of the grant. See CERTIORARI. [Cases: Federal Courts C=>452, 509.] rule of inconvenience. (1934) The principle of statutory interpretation holding that a court should not construe a statute in a way that will jeopardize an important public interest or produce a serious hardship for anyone, unless that interpretation is unavoidable. ­ Often shortened to inconvenience. [Cases: Statutes C=> ISI(2).] rule of interpretation. See canon ofconstruction under CANON (1).

rule of justice. A jurisprudential principle that deter­ mines the sphere of individual liberty in the pursuit of individual welfare, so as to confine that liberty within limits that are consistent with the general welfare of humankind. rule oflaw. (1Sc) 1. A substantive legal principle . 2. The supremacy of regular as opposed to arbitrary power . - Also termed supremacy of law. 3. The doctrine that every person is subject to the ordinary law within the jurisdiction . 4. The doctrine that general constitutional principles are the result of judicial deci­ sions determining the rights of private individuals in the courts . 5. Loosely, a legal ruling; a ruling on a point of law . [Cases: Courts C=>S7.]

rule of the last antecedent

1449

rule oflenity (len-;)-tee). The judicial doctrine holding that a court, in construing an ambiguous criminal statute that sets out multiple or inconsistent punish­ ments, should resolve the ambiguity in favor of the more lenient punishment. Also termed lenity rule. [Cases: Statutes (;::=>241(1).J rule of marshaling assets. An equitable doctrine that requires a senior creditor, having two or more funds to satisfy its debt, to first dispose of the fund not available to a junior creditor. - It prevents the inequity that would result if the senior creditor could choose to satisfy its debt out of the only fund available to the junior creditor and thereby exclude the junior creditor from any sat­ isfaction. - Also termed marshaling doctrine; rule of marshaling securities; rule of marshaling remedies. [Cases: Debtor and Creditor (;::=> 13.] rule of marshaling liens. See INVERSE-ORDER-OF-ALIEN­ ATION DOCTRINE.

rule of marshaling remedies. See

RULE OF MARSHAL­

ING ASSETS.

rule of marshaling securities. See

RULE OF MARSHAL­

INGASSETS.

rule of necessity. A rule requiring a judge or other official to hear a case, despite bias or conflict of interest, when disqualification would result in the lack ofany compe­ tent court or tribunaL - Often shortened to necessity. [Cases: Judges ~J39.1 rule of operation. Patents. A method of using a machine to produce its intended useful result. - A rule of opera­ tion and moving parts generally distinguish a machine from an article of manufacture. rule of optional completeness. (1983) The evidentiary rule providing that when a party introduces part of a writing or an utterance at trial, the opposing party may require that the remainder of the passage be read to establish the full context. - The rule has limitations: first, no utterance can be received if it is irrelevant, and second, the remainder of the utterance must explain the first part. In many jurisdictions, the rule applies to conversations, to an opponent's admissions, to confes­ sions, and to all other types ofwritings - even account books. But the Federal Rules of Evidence limit the rule to writings and recorded statements. Fed. R. Evid. 106. In most jurisdictions, including federal, the remain­ der is admissible unless its admission would be unfair or misleading. Also termed rule of completeness; doctrine ofcompleteness; doctrine ofoptional complete­ ness; completeness doctrine; optional-completeness rule; optional-completeness doctrine. [Cases: Criminal Law C=396(2); Evidence \55,383(12).] rule of order. See RULE (3). rule of rank. A doctrine of statutorv construction holding that a statute dealing with th'ings or persons of an inferior rank cannot by any general words be extended to things or persons of a superior rank.• Blackstone gives the example of a statute dealing with deans, prebendaries, parsons, vicars, and others having spiritual promotion. According to Blackstone, this

statute is held not to extend to bishops, even though they have spiritual promotion, because deans are the highest persons named, and bishops are of a higher order. Cf. EJUSDEM GENERIS; EXPRESSIO UNIUS EST EXCLUSIO ALTERIUS; NOSCITUR A SOCIIS.

rule of reason. Antitrust. The judicial doctrine holding that a trade practice violates t he Sherman Act only if the practice is an unreasonable restraint of trade, based on the totality of economic circumstances. See SHERMAN ANTITRUST ACT; RESTRAINT OF TRADE. Cf. PER SE RULE. [Cases: Antitrust and Trade Regulation C=:)535.] rule of recognition. In the legal theory of H.L.A. Hart, a legal system's fundamental rule, by which all other rules are identified and understood .• In The Concept of Law (1961), Hart contends that a society's legal system is centered on rules. There are primary rules of obligation, which prescribe how a person should act in SOCiety, and secondary rules, by which the primary rules are created, identified, changed, and understood. A "rule of recognition" is a secondary rule, and serves to instruct citizens on when a pronouncement or societal principle constitutes a rule of obligation. Sometimes short­ ened to recognition. Cf. RULES OF CHANGE; basic norm under NORM. "This rule [the rule of recognition] may amount to no more than specifying a list of primary rules carved on a public monument. Or it may actually be a complete set of rules ...." Martin P. Golding, Philosophy of Law 44 (1975).

rule of right. (18c) lhe source of a right; the rule that gives rise to a right. rule ofn. A method for determining how many years it takes to double money invested at a compound interest rate.• For example, at a compound rate of 6%, it takes 12 years (72 divided by 6) for principal to double. rule of 78. A method for computing the amount of interest that a borrower saves by paying off a loan early, when the interest payments are higher at the begin­ ning of the loan period .• For example, to determine how much interest is saved by prepaying a 12-month loan after 6 months, divide the sum of the digits for the remaining six payments (21) by the sum of the digits for all twelve payments (78) and multiply that percent­ age by the total interest. Also termed rule ofthe sum of the digits. rule of the floating subtrahend. The common-law doctrine that a plaintiff whose damage was not caused entirely by the defendant must prove the amount of damage that is not attributable to the defendant (the subtrahend) or else recover nothing. - The reasoning behind the rule is that damage is an essential element ofa tort claim, and the plaintiffhas the burden of proof. If proved, the subtrahend is subtracted from the total damage to determine the plaintiffs recovery. rule of the last antecedent. (1919) An interpretative prin­ ciple by which a court determines that qualifying words or phrases modify the words or phrases immediately preceding them and not words or phrases more remote, unless the extension is necessary from the context or

rule of the shorter term

the spirit ofthe entire writing.• For example, an appli­ cation of this rule might mean that, in the phrase Texas courts, New Mexico courts, and New York courts in the federal system, the words in the federal system might be held to modify only New York courts and not Texas courts or New Mexico courts. - Also termed doctrine of the last antecedent; doctrine of the last preceding ante­ cedent. [Cases: Statutes (,'=' 196.] rule of the shorter term. Copyright. A provision of the Universal Copyright Convention stating that no member country is required to extend a longer term of protection than the work receives in the country where it is first published. Also termed shorter-term rule. rule of the sum of the digits. See RULE OF 78. rule of universal inheritance. See UNIVERSAL-INHER­ ITANCE RULE.

rules committee. See COMMITTEE. rules of change. In the legal theory ofH.L.A. Hart, the fundamental rules by which a legal system's other rules are altered .• In Hart's theory, a legal system's primary rules are subject to identification and change by sec­ ondary rules. Among those rules are "rules of change," which prescribe how laws are altered or repealed. Cf. RULE OF RECOGNITION.

rules of court. See COURT RULES. Rules of Decision Act. A federal statute (28 USCA § 1652) providing that a federal court, when exercising diversity jurisdiction, must apply the substantive law of the state in which the court sits. See diversity jurisdic­ tion under JURISDICTION. [Cases: Federal Courts 373.] rules of evidence. See EVIDENCE (4); FEDERAL RULES OF EVIDENCE.

rules of navigation. Maritime law. The principles and regulations that govern the steering and sailing of vessels to avoid collisions .• Examples include the International Rules governing conduct on the high seas and the Inland Rules governing navigation on the inland waters of the United States and U.S. vessels on the Canadian waters of the Great Lakes. 33 USCA §§ 1602-1608,2001-2073. [Cases: Collision rules of order. See RULE (3). rules of procedure. See PROCEDURE (2). rule to show cause.!. See SHOW-CAUSE PROCEEDING. 2. See show-cause order under ORDER (2). ruling, n. (16c) 1. The outcome of a court's decision either on some point oflaw or on the case as a whole. Also termed legal ruling. Cf. JUDGMENT (1); OPINION (1). [Cases: Courts C:";)88.] "A distinction is sometimes made between rules and rulings. Whether or not a formal distinction is declared, in common usage 'legal ruling' (or simply 'ruling') is a term ordinarily used to signify the outcome of applying a legal test when that outcome is one of relatively narrow impact. The immediate effect is to decide an issue in a single case. This meaning contrasts, for example, with the usual meaning of 'legal rule' (or simply 'rule'). The term 'rule' ordinarily refers to a legal proposition of general

1450 application. A 'ruling' may have force as precedent, but ordinarily it has that force because the conclusion it expresses (for example, 'objection sustained') explicitly depends upon and implicitly reiterates a 'rule' a legal proposition of more general application ...." Robert E. Keeton, Judging 67-68 (1990).

2. Parliamentary law. The chair's decision on a point of order. rule, vb. ruling case. See LEADING CASE (3). ruling letter. See DETERMINATION LETTER. RULPA. abbr. Revised Uniform Limited Partnership Act. See UNIFORM LIMITED PARTNERSHIP ACT. run, vb. (bef. 12c) 1. To expire after a prescribed period 1204(4).] sagibaro (sag-i}-bar-oh), n. [Old English] Hist. A deter­ miner of disputes; a judge. - Also termed sachbaro (sak-bar-oh). said, adj. (Be) Aforesaid; above-mentioned. _ The adjec­ tive said is obsolescent in legal drafting, its last bastion being patent claims. But even in that context the word is giving way to the ordinary word the, which if properly used is equally precise. See AFORESAID. "The word 'said' is used by many practitioners rather than 'the' to refer back to previously recited elements, sometimes to a previously cited anything. This practice is unobjectionable, although perhaps overly legalistic. If 'saids' or 'thes' are used, one should be consistent in the usage and not alternate between those words in repetitions of the same element or among different elements." Robert C. Faber, Landis on Mechanics of Patent Claim Drafting § 23, at SO (3d ed. 1990).

sailor's will. See soldier's will under WILL. Saint Lawrence Seaway Development Corporation. A wholly-owned corporation in the U.S. Department of Transportation responsible for developing, operating,

sake and sake

and maintaining a part of the St. Lawrence Seaway from Montreal to Lake Erie. - It charges tolls at rates negotiated with the St. Lawrence Seaway Authority of Canada. Abbr. SLSDC. sake and soke (sayk J sohk). Hist. A lord's right to hold court and compel attendance. Also spelled sak and soc (sak / sok). See soc. salable (say-Ia-bal or sayl-360,514.] fraudulent sale. A sale made to defraud the seller's creditors by converting into cash property that should be used to satisfy the creditors' claims. [Cases: Fraud­ ulent Conveyances (;:::: L] gross sales. Total sales (esp. in retail) before deductions for returns and allowances. - Also termed sales in gross. installment sale. See INSTALLMENT SALE. isolated sale. An infrequent or one-time sale that does not carry an implied warranty of merchantability because the seller is not a merchant with respect to goods of that kind. UCC § 2-314(1). [Cases: Sales 272.]

judgment sale. See execution sale. judicial sale. A sale conducted under the authority of a judgment or court order, such as an execution sale. ­ Also termed sheriff's sale. [Cases: Cases: Execution (;:::::213; Judicial Sales C=::: 1.] lumping sale. A court-ordered sale in which several distinct pieces of property are sold together for a single sum. memorandum sale. A conditional sale in which the buyer takes possession but does not accept title until approving the property. [Cases: Sales (;:::::459.] net sale. The amount of money remaining from a sale, after deducting returns, allowances, rebates, dis­ counts, and otber expenses. present sale. Under the UCC, a sale accomplished by the making of a contract. UCC § 2-106(1). [Cases: Sales C=::: 1(1).] private sale. An unadvertised sale negotiated and concluded directly between the buyer and seller, not through an agent. public sale. 1. A sale made after public notice, such as an auction or sheriff's sale; specif., a sale to which the public has been invited by advertisement to appear and bid at auction for the items to be sold. 2. Patents. An actual exchange for value or an offer through some medium (e.g., a sales brochure) of an article, product, or process to a member ofthe general public. [Cases: Patents (~=>76.] retail installment sale. See INSTALLMENT SALE.

sale

sale against the box. See short sale against the box. sale and leaseback. See LEASEBACK. sale and return. See sale or return. sale as is. A sale in which the buyer accepts the property in its existing condition unless the seller has misrep­ resented its quality. Also termed sale with all faults. [Cases: Sales (;:::::260, 267.] sale by sample. A sale in which the parties understand that the goods exhibited constitute the standard with which the goods not exhibited correspond and to which all deliveries should conform .• Any sample that is made part of the basis of the bargain creates an express warranty that the whole of the goods will conform to the sample or model. UCC § 9-102(a) (20). Also termed sample sale. [Cases: Sales (;::::: 73.1 sale in gross. 1. A sale of a tract ofland made with no guarantee about the exact amount or size of the land being sold. [Cases: Vendor and Purchaser 6.] salvage value. See VALUE (2). salvam fecit totius pignoris causam (sal-vam fee-sit toh-shee-as pig-na-ris kaw-zam). [Law Latin] Scots law. He furnished the means of saving the whole pledge.• A bottomry creditor posting the last bond obtained preference over the remaining bottomry creditors because the later loan preserved the property for the earlier creditors. See bottomry bond under BOND (2).

salva substantia (sal-va sab-stan-shee-;'l). [Latin] Roman & civil law. The substance (of the property) being pre­ served; the substance remaining intact. Also termed salva rei substantia. "A right of liferent, therefore, cannot be constituted in a subject which necessarily perishes in the use: it must be a subject which can be used salva substantia." John Trayner, Trayner's Latin Maxims 563 (4th ed. 1894).

salvo (sal-voh). [Latin fro salvus "safe"] Hist. 1. Saving; excepting.• This term was used in deeds. 2. Safely. salvo beneficio competentiae (sal-voh ben- 141.] same-invention double patenting. See statutory double patenting under DOUBLE PATENTING. same-invention double patenting rejection. See statu­ tory double patenting rejection under REJECTIO~. same offense. See OFFENSE (1). same-sex harassment. See same-sex sexual harassment under SEXUAL HARASSMENT. same-sex marriage. See MARRIAGE (1). same-sex sexual harassment. See SEXUAL HARASS­ MENT. same-transaction test. Criminal law. A double-jeop­ ardy test, never adopted, that would require the gov­ ernment to bring all charges arising out of a single incident against a defendant in one prosecution.• Justice Brennan advocated the same-transaction test in a case involving a conviction for felony-murder and a later prosecution for the underlying felony. Harris v. Okla.) 433 U.S. 682, 97 S.Ct. 2912 (1977). Cf. BLOCK­ BURGER TEST; SAME-CONDUCT TEST. [Cases; Double Jeopardy C=> 134.] sample sale. See sale by sample under SALE.

1458

sampling, n. Copyright. The process of taking a small portion of a sound recording and digitally manipu­ lating it as part of a new recording .• Sampling may infringe the copyright of the sample's source, esp. the musical-works and sound-recording copyrights. ­ Also termed digital sampling. [Cases: Copyrights and Intellectual Property 67.2.] S&T. abbr. SCIENCE AND TECH~OLOGY DIRECTORATE. sanae mentis (san-ee men-tis). [Law Latin] Hist. Of sound mind; of sane mind. sandre (san-sl-ree), vb. [Latin] Roman law. To enact; confirm; prescribe. sanctio (sangk-shee-oh), n. [Latin fro sancio "to ordain, confirm, or forbid under penalty"] Roman law. A par­ ticular clause in a statute imposing a penalty on any violation of that statute. PI. sanctiones (sangk-shee­ oh-neez). "5anctio (legis). A clause in a statute which strengthens its efficacity by fixing a penalty for its violation, by forbidding its derogation through a later enactment, or by releasing from responsibility anyone who by acting in accordance with the statute violated another law. The purpose of the sanction clause was to settle the relation between the new statute and former and future legislation. Thus the sanctio could also state that a previous statute remained fully or partially in force without being changed by the new one." Adolf Berger, Encyclopedic Dictionary of Roman Law 689 (1953).

sanction (sangk-shdn), n. (ISc) 1. Official approval or authorization . Cf. RATIFICATION (1). 2. A penalty or coercive measure that results from failure to comply with a law, rule, or order . Cf. DISCIPLINE.[Cases: Costs C=>2; Criminal Law ~627.8(6); Federal Civil Procedure 1278, 2750; Pretrial Procedure "Without adequate sanctions the procedure for discovery would often be ineffectual. Under Rule 37 [of the Federal Rules of Civil Procedure], ... any party or person who seeks to evade or thwart full and candid discovery incurs the risk of serious consequences, which may involve imprisonment for contempt of court, an order that designated facts be taken to be established, an order refusing the delinquent party the right to support or oppose designated claims or defenses, striking out pleadings or parts of pleadings, rendering judgment by default, dismissal of the action or a claim therein, or assessment of expenses and attorney's fees. Sanctions are intended to prompt a party to respond." 8A Charles Alan Wright et aI., Federal Practice and Proce· dure § 2281, at 595-95 (2d ed. 1994).

criminal sanction. (1872) A sanction attached to a criminal conviction, such as a fine or restitution. Also termed penal sanction. "A criminal sanction ... is a legally authorized post-con' viction deprivation suffered by a human being through governmental action. By using the words 'post·conviction' in that definition, criminal sanctions are thus limited to those imposed upon defendants in criminal proceedings who, by reason or in consequence of ajudgment entered upon a verdict of gUilty found by ajury, or judge sitting without ajury (the latter having been legally waived), or upon a plea of guilty, or a plea of nolo contendere, stand conVicted." A Treatise on the Law of Crimes § 2.00. at 66 (Marian QUinn Barnes ed., 7th ed. 1967).

sanity hearing

1459

death-penalty sanction. (1991) Civil procedure. A court's order dismissing the suit or entering a default judgment in favor of the plaintiffbecause of extreme discovery abuses by a party or because of a party's action or inaction that shows an unwillingness to participate in the case.• Such a sanction is rarely ordered, and is usu. preceded by orders oflesser sanc­ tions that have not been complied with or that have not remedied the problem. - Often shortened to death penalty. [Cases: Federal Civil Procedure 1278; Pretrial Procedure C=>46.] shame sanction. (1991) A criminal sanction designed to stigmatize or disgrace a convicted offender, and often to alert the public about the offender's convic­ tion.• A shame sanction usu. publicly associates the offender with the crime that he or she committed. An example is being required to post a sign in one's yard stating, "Convicted Child Molester Lives Here." ­ Also termed shame sentence; shaming sanction; shaming sentence; scarlet-letter punishment; scarlet­ letter sentence. 3. Int'llaw. An economic or military coercive measure taken by one or more countries toward another to force it to comply with international law . sanction, vb. (18c) 1. To approve, authorize, or support . 2. To penalize by imposing a sanction . sanctionable, adj. (18c) (Of conduct or action) meriting sanctions; likely to be sanctioned. [Cases: Federal Civil Procedure C=' 1278,2750-2848.] sanctional enforcement. See secondary right under RIGHT.

sanctioning right. See secondary right under RIGHT. sanctions tort. A means of recovery for another party's discovery abuse, whereby the judge orders the abusive party to pay a fine to the injured party for the discovery violation.• This is not a tort in the traditional sense, but rather a form of punishment that results in monetary gain for the injured party. sanctity of contract. (1831) The principle that the parties to a contract, having duly entered into it, must honor their obligations under it. [Cases: Contracts "[Sanctity of contract] is merely another facet of freedom of contract, but the two concepts cover, to some extent, different grounds. The sanctity of contractual obliga­ tions is merely an expression of the principle that once a contract is freely and voluntarily entered into, it should be held sacred, and should be enforced by the Courts if it is broken. No doubt this very sanctity was an outcome of freedom of contract, for the reason why contracts were held sacred was the fact that the parties entered into them of their own choice and volition, and settled the terms by mutual agreement." P.S. Atiyah, An Introduction to the Law ofContract12 (3d ed. 1981).

sanctuary. (14c) 1. A safe place, esp. where legal process cannot be executed; asylum.

!

"Every consecrated church was a sanctuary. If a malefactor took refuge therein, he could not be extracted; but it was the duty of the four neighbouring vilis to beset the holy place, prevent his escape and send for a coroner. ... [Alfter he had enjoyed the right of asylum for forty days, he was to be starved into submission; but the clergy resented this interference with the peace of Holy Church." 2 Frederick Pollock & Frederic William Maitland. History of English Law Before the Time of Edward 1590-91 (2d ed. 1899). "In medieval England. as elsewhere in Europe, there were a number of ecclesiastical places where the king's writ did not run. The underlying theory was that consecrated places should not be profaned by the use of force, but the result in practice was that thieves and murderers could take refuge and thereby gain immunity even against the operation of criminal justice. This was the privilege called 'sanctuary.' In the case of parochial churches, the sanctu­ ary lasted for forty days only. Before the expiration of this period, the fugitive had to choose whether to stand trial or 'abjure' the realm .... This was only permitted if he made a written confession to the coroner, which resulted in the forfeiture of his property as on conviction; his life only was spared ...." J.H. Baker, An Introduction to English Legal History 585 (3d ed. 1990).

2. A holy area of a religious building; esp., the area in a church or temple where the main altar or tabernacle is located. sandbagging, n. 1. A trial lawyer's remaining cagily silent when a possible error occurs at trial, with the hope ofpreserving an issue for appeal ifthe court does not correct the problem .• Such a tactic does not usu. preserve the issue for appeal because objections must be promptly made to alert the trial judge of the possible error. [Cases: Criminal Law (;::::::> 1030(1); Federal Courts C=>611.] 2. Corporations. An antitakeover tactic wherein the target company delays a hostile bidder's final offer by agreeing to negotiate then prolonging bad­ faith negotiations as long as pOSSible. sandbag, vb. S & L. abbr. SAVINGS-AND-LOAN ASSOCIATION. sandpapering, n. A lawyer's general preparation of a witness before a deposition or triaL Cf. HORSESHED­ DING.

sandwich lease. See LEASE. sane, adj. (17c) Having a relatively sound and healthy mind; capable of reason and of distinguishing right from wrong. [Cases: Criminal Law (''--:>46; Mental Health C=>3.L] sane memory. See CAPACITY (3). sanguis (sang-gwis), n. [Latin "blood"]l. Roman law. Blood relationship. 2. Hist. Consanguinity. 3. Hist. The right of a chieflord to judge cases involving blood­ shed. sanitary code. A set of ordinances regulating the food and healthcare industries. [Cases: Food C=' 1; Health (,'J354.J sanity. (15c) The state or condition of having a relatively sound and healthy mind. Cf. INSANITY. [Cases: Mental Health C=> 3.1,432.] sanity hearing. (1925) 1. An inquiry into the mental competency of a person to stand trial. See COMPE­ TENCY. Cases: Criminal Law C=>623.] 2. A proceeding

sans ce que

to determine whether a person should be institutional­ ized. [Cases: Mental Health sans ce que (sanz see k;) or sawn s;} k;). [Law French] See ABSQUE HOC. sansfrais (sawn fray). [Law French] Without expense. sans impeachment de wast (sanz im-peech-m;}nt d70.] 2. An investment adviser who buys a security before recom­ mending it to clients. 3. A market-maker who puts an excessive markup or markdown on a transaction. scalping, n. 1. The practice of selling something (esp. a ticket) at a price above face value once it becomes scarce (usu. just before a high-demand event begins). [Cases: Public Amusement and Entertainment (::::>70.J 2. The purchase of a security by an investment adviser before the adviser recommends that a customer buy the same security.• This practice is usu. considered unethical because the customer's purchase will increase the secu­ rity's price, thus enabling the investment adviser to sell at a profit. 3. The excessive markup or markdown on a transaction by a market -maker. • This action violates National Association of Securities Dealers guide­ lines. - scalp, vb. scandal. 1. Disgraceful, shameful, or degrading acts or conduct. 2. Defamatory reports or rumors; esp., slander. See SCANDALOUS MATTER. "Scandal consists in the allegation of anything which is unbecoming the dignity of the court to hear, or is contrary to decency or good manners, or which charges some person with a crime not necessary to be shown in the cause, to which may be added that any unnecessary allegation, bearing cruelly upon the moral character of an individual, is also scandalous. The matter alleged, however, must be not only offensive, but also irrelevantto the cause, for however offenSive it be, if it be pertinent and material to the cause the party has a right to plead it. It may often be necessary to charge false representations, fraud and immo­ rality, and the pleading will not be open to the objection of scandal, if the facts justify the charge." Eugene A. Jones, Manual of EquitV Pleading and Practice SO- 51 (1916).

scandalous matter. (17c) Civil procedure. A matter that is both grossly disgraceful (or defamatory) and irrelevant upon a to the action or defense .• A federal court party's motion or on its own - can order a scandalous matter struck from a pleading. Fed. R. Civ. P. 12(f). Cf. IMPERTINENT MATTER. [Cases: Federal Civil Procedure Pleading (::::>364(4).] scandalous subject matter. Trademarks. A word, phrase, symbol, or graphic depiction that the U.S. Patent and Trademark Office may refuse to register because it is shockingly offensive to social mores .• Although the Lanham Act uses the phrase "immoral, decep­ tive, or scandalous subject matter," courts have not

1462

distinguished "scandalous" from "immoral." [Cases: Trademarks (::::> 1072.] scandalum magnatum (skan-dd-ldm mag-nay-tdm). [Law Latin1Rist. Actionable slander ofpowerful people; specif., defamatory comments regarding persons of high rank, such as peers, judges, or state officials. "Words spoken in derogation of a peer, a judge, or other great officer of the realm, which are called scandalum magnatum, are held to be still more heinous; and, though they be such as would not be actionable in the case of a common person, yet when spoken in disgrace of such high and respectable characters, they amount to an atro­ cious injury: which is redressed by an action on the case founded on many ancient statutes; as well on behalf of the crown, to inflict the punishment of imprisonment on the slanderer, as on behalf of the party, to recover damages for the injury sustained." 3 William Blackstone, Commentaries on the Laws of Eng/and 123-24 (1768).

scarlet-letter punishment. See shame sanction under SANCTION.

scarlet-letter sentence. See shame sanction under SANCTION.

scatter-point analysis. (1993) A method for studying the effect that minority-population changes have on voting patterns, involving a plotting of the percentage of votes that candidates receive to determine whether voting percentages increase or decrease as the percentages of voters of a particular race increase or decrease. scenes afaire (sen ah fair). [French uscenes for action"] Copyright. Standard or general themes that are common to a wide variety of works and are therefore not copy­ rightable.• Examples of scenes afaire are obvious plot elements and character types. [Cases: Copyrights and Intellectual Property (::::> 12(2).] schedule, n. (15c) A written list or inventory; esp., a statement that is attached to a document and that gives a detailed showing of the matters referred to in the document <Schedule B to the title policy lists the encumbrances on the property>. schedule, vb. ­ scheduled, adj. scheduled injury. See INJURY. scheduled property. See PROPERTY. scheme. (16c) 1. A systemic plan; a connected or orderly arrangement, esp. of related concepts . 2. An artful plot or plan, usu. to deceive others . scheme of arrangement. English law. A court-approved reorganization of a company's capital structure or debts.• The company seeking to reorganize is usu. in financial trouble but may not yet be insolvent. creditors' scheme ofarrangement. A reorganization plan in which creditors agree to defer demands for payment, in hopes ofeventually receiving more than they would if the company were immediately liqui­ dated. members'scheme ofarrangement. A reorganization plan voted on and approved by the company's share­ holders.• This type of scheme may be used to prepare

1463

for a merger. Also termed shareholders' scheme of arrangement. shareholders' scheme ofarrangement. See members' scheme ofarrangement. schism (siz-Jm or skiz-Jm). (l4c) 1. A breach or rupture; a division, esp. among members ofa group, as of a union. 2. A separation of beliefs and doctrines by persons of the same organized religion, religious denomination, or sect [Cases: Religious Societies 35.] "It has been held that the civil courts are not concerned with mere schisms stemming from disputations over matters of religious doctrine, not only because such ques­ tions are essentially ecclesiastical rather than judicial, but also because of the separation between the church and the state .... However, it has also been held that the situa­ tion is different in the case of self-governing congressional churches, for here the courts do not hesitate to assume jurisdiction when a schism affects property rights, for in this form ... each local congregation is independent and autonomous and there is no recourse within the denomi­ nation." 66 Am. Jur. 2d Religious Societies § 51, at 804 (1973).

scientific method

public schools within its territory and to otherwise assist the state in administering its educational respon­ sibilities. [Cases: Schools G=2L] consolidated school district. A public-school district in which two or more existing schools have consolidated into a Single district. [Cases: Schools school land. See LAND. Schumer box. In a credit-card agreement, a table that summarizes all the costs for which the cardholder is liable, so that the cardholder can more easily compare credit-card agreements. _ The term derives from the name of Senator Charles Schumer, who proposed the disclosure requirements. The box must contain the information listed in 15 t.JSCA § 1637(c)(1)(A)-(B). Also termed Schumer's box. [Cases: Consumer Credit

Scieuce and Technology Directorate. The division of the Department of Homeland Security responsible for coordinating research and development, including pre­ paring for and responding to terrorist threats involv­ school, n. 1. An institution oflearning and education, ing weapons of mass destruction. - The Directorate esp. for children. [Cases: Schools (::::J 11.] also works with the Chemical, Biological, Radiological, "Although the word 'school' in its broad sense includes i and Nuclear Countermeasures Program and the Envi­ all schools or institutions, whether of high or low degree, ronmental Measurements Lab in the Department of the word 'school' frequently has been defined in constitu­ Energy, the National BW (biological warfare) Defense tions and statutes as referring only to the public common schools generally established throughout the United Analysis Center in the Department of Defense, and the .. When used in a statute or other contract, States Plum Island Animal Disease Center Abbr. S&T. 'school' usually does not include univerSities, business science oflegislation. See LAW REFORM. colleges, or other institutions of higher education unless the intent to include such institutions is clearly indicated." sciendum est (sI-en-d;:lm est). [Latin] Roman law. It is 68 Am. Jur. 2d Schools § 1, at 355 (1993). to be known or understood. - This phrase often intro­ common school. See public school. duced a particular topic or explanation. district school. A public school contained in and main­ sciens et prudens (sI-enz et proo-denz). [Latin] Hist. In tained by a school district. See SCHOOL DISTRICT. full knowledge and understanding. private school. A school maintained by private indi­ scienter (sI-en-tJr or see-), n. [Latin "knowingly"] (1824) viduals, religiOUS organizations, or corporations, 1. A degree of knowledge that makes a person legally funded, at least in part, by fees or tuition, and open responsible for the consequences of his or her act or only to pupils selected and admitted based on reli­ omission; the fact of an act's having been done know­ gious affiliations or other particular qualifications. ingly, esp. as a ground for civil damages or criminal [Cases: Schools 1.] punishment. See KNOWLEDGE; MENS REA. [Cases: Criminal Law C=>20; Negligence (::::J212, 302.] 2. A public school. An elementary, middle, or high school mental state consisting in an intent to deceive, manipu­ established under state law, regulated by the local late, or defraud. - In this sense, the term is used most state authorities in the various political subdivisions, often in the context of securities fraud. The Supreme funded and maintained by public taxation, and open Court has held that to establish a claim for damages and free to all children ofthe particular district where under Rule lOb-5. a plaintiff must prove that the defen­ the school is located. - Also termed common school. dant acted with scienter. Ernst & Ernst v. Hochfelder, [Cases: Schools C=> 11.] 425 U.S. 185,96 S.Ct. 1375 (1976). [Cases: Securities 2. The collective body of students under instruction in Regulation G:::c60,45, 60.51(2).] an institution oflearning_ 3. A group ofpeople adhering , scienter action. A lawsuit in which the plaintiff must to the same philosophy or system of beliefs. , prove that the defendant acted knOWingly or knew of school board. An administrative body, made up of a the danger - e.g., at common law an action for damage number of directors or trustees, responSible for over­ caused by a domestic animaL See SCIENTER. seeing public schools within a city, county, or district. scientific creationism. See CREATIONISM. Cf. BOARD OF EDUCATION. [Cases: Schools (::::J51.] scientific evidence. See EVIDENCE. school bond. See BOND (3). scientific knowledge. See KNOWLEDGE. school district. A political subdivision of a state, created by the legislature and invested with local powers of self­ scientific method. An analytical technique by which a government, to build, maintain, fund, and support the hypothesis is formulated and then systematically tested

sci. fa.

through observation and experimentation. [Cases: Criminal Law C=>388.1; Evidence C=>555.] sci. fa. abbr. SCIRE FACIAS. scH. abbr. SCILICET. scilicet (sH-d-set or -sit). [fro Latin scire licet "that you may know"] (14c) That is to say; namely; VIDELICET.• Like videlicet, this word is used in pleadings and other instruments to introduce a more particular statement of matters previously mentioned in general terms. It has never been quite as common, however, as videlicet. Abbr. sc.; scil.; (erroneously) ss. SCIN. abbr. See self-canceling installment note under NOTE (1). scintilla (sin-til-d). (13c) A spark or trace . PI. scintillas (sin-tH-n). [Cases: Evidence C=>597; Federal Civil Procedure C=>2146; Judgments C=>185(5); Trial C=> 139.1(8).] scintilla juris (sin-til-d joor-is). [Law Latin "a spark of right"] Hist. A fragment of law or right.• This refers to a figurative expression in the law of uses providing a trace of seisin rights to remain in the feoffees suffi­ cient to allow contingent uses to be executed under the Statute of Uses. It was abolished in the Law of Property Amendment Act of 1860. See STATUTE OF USES. scintilla-of-evidence rule. (1896) A common-law doctrine holding that if even the slightest amount of relevant evidence exists on an issue, then a motion for summary judgment or for directed verdict cannot be granted and the issue must go to the jury.• Federal courts do not follow this rule, but some states apply it. - Also termed scintilla rule. [Cases: Federal Civil Procedure C=>2146, 2546; Judgment C=> 185(5); Trial C=> 139.1(8).] scire facias (sl-ree fay-shee-ds). [Law Latin "you are to make known, show cause"] (15c) A writ requiring the person against whom it is issued to appear and show cause why some matter ofrecord should not be annulled or vacated, or why a dormant judgment against that person should not be revived. - Abbr. sci. fa. [Cases: Scire Facias C=> 1.] amicable scire facias to revive a judgment. A written agreement in which a person against whom a revival of an action is sought agrees to the entry of an adverse judgment. scire facias ad audiendum errores (sl-ree fay-shee-ds ad aw-dee-en-ddm e-ror-eez). [Law Latin "that you cause to know to hear errors"] Hist. A common­ law writ allowing a party who had assigned error to compel the opposing party to plead .• It was abol­ ished in 1875. scire facias ad disprobandum debitum (sl-ree fay­ shee-ds ad dis-proh-ban-ddm deb-d-tdm). [Law Latin "that you cause to know to disprove the debt"] Hist. A writ allowing a defendant in a foreign attachment against the plaintiff to disprove or avoid the debt

1464

recovered by the plaintiff, within a year and a day from the time of payment. scire facias ad rehabendam terram (sl-ree fay­ shee-ds ad re-hd-ben-ddm ter-dm), n. [Law Latin "that you cause to know to recover the land"] Hist. A writ allowing a judgment debtor to recover lands taken in execution after the debtor has satisfied the judgment. scire facias quare restitutionem non (Sl-ree fay-shee-ds kwair-ee res-td-t[y]oo-shee-oh-ndm non), n. [Law Latin "that you cause to know why (there is not) resti­ tution"] Hist. A writ for restitution after an execution on a judgment is levied but not paid and the judgment is later reversed on appeal. scire facias sur mortgage (sl-ree fay-shee-ds Sdr mor-gij), n. [Law Latin "that you cause to know on mortgage"] Hist. A writ ordering a defaulting mort­ gagor to show cause why the mortgage should not be foreclosed and the property sold in execution. [Cases: Mortgages C=>388.] scire facias sur municipal claim (SI-ree fay-shee-ds Sdr myoo-nis-d-pdl klaym), n. [Law Latin "that you cause to know on municipal claim"] Hist. A writ compelling the payment of a municipal claim out of the property to which a municipal lien is attached. scire feci (sl-ree fee-SIlo [Latin "I have caused to know"] Hist. The sheriff's return to a writ of scire facias, indi­ cating that notice was given to the parties against whom the writ was issued. scire fieri inquiry (sl-ree fl-d-n), n. [Law Latin] Hist. A writ to ascertain the location of a testator's property from an executor, when the sheriff returned nulla bona to a writ of execution fieri facias de bonis testatoris. See FIERI FACIAS. scite (SIt). [fr. Latin situs] Archaic. 1. A location; a site. 2. The site of a capital messuage. 3. A municipal ordi­ nance. - Also termed site. scofflaw (skof-law). (1924) 1. A person who treats the law with contempt; esp., one who avoids various laws that are not easily enforced <some scofflaws carry man­ nequins in their cars in order to drive in the carpool lane>. 2. Hist. A person who consumes illegally made or obtained alcoholic beverages .• This was the original meaning. scold, n. Hist. A person who regularly breaks the peace by scolding people, increasing discord, and generally being a public nuisance to the neighborhood.• This behavior was formerly punishable in various ways, including having an iron bridle fitted to the person's mouth. - Also termed common scold; objurgatrix. See BRANKS. [Cases: Criminal LawC=>45.25.] scolding bridle. See BRANKS. scope note. (1903) In a digest, a precis appearing after a title and showing concisely what subject matter is included and what is excluded. "In the Century and Decennial Digests, though not in the various digests of the Key-Number Series, there is printed

1465 immediately following each topic title a couple of para­ graphs which are called the Scope-Note. The first para­ graph of this scope-note shows very briefly the character of the subject-matter included under the title. The second paragraph shows the 'Exclusions' - i.e., what related matter has been excluded in order to conform to the plan of the Digest and directs the reader to the proper title under which such related matter may be found. Conse­ quently a little study of the scope-note will ofttimes repay the searcher for a few moments' time consumed in so doing." William M. Lile et aI., Brief Making and the Use of Law Books 116 (3d ed. 1914).

scope of a patent. Patents. The limits ofa patent's protec­ tion, as defined by the allowed claims. [Cases: Patents ~165.]

scope of authority. (1805) Agency. The range of reason­ able power that an agent has been delegated or might foreseeably be delegated in carrying out the princi­ pal's business. See SCOPE OF EMPLOYMENT; RESPON­ DEAT SUPERIOR. [Cases: Principal and Agent 92-137.] scope ofbusiness. The range ofactivities that are reason­ ably necessary to operate a commercial venture suc­ cessfully, as determined by the nature of the venture and the activities of others engaged in the same occu­ pation in the same area. scope ofemployment, (1836) The range of reasonable and foreseeable activities that an employee engages in while carrying out the employer's business; the field of action in which a servant is authorized to act in the master­ servant relationship. See RESPONDEAT SUPERIOR. Cf. COURSE OF EMPLOYMENT; ZONE OF EMPLOYMENT.

[Cases: Labor and Employment ~2769, 3044.] scope-of-work clause. A contractual provision that highlights in summary fashion what work is to be per­ formed under the contract. scorched-earth defense. Corporations. An antitake­ over tactic by which a target corporation sells its most valuable assets or divisions in order to reduce its value after acquisition and thus try to defeat a hostile bidder's tender offer. Cf. CROWN-JEWEL DEFENSE; PAC-MAN DEFENSE.

S corporation. See CORPORATION. scot. Hist. A payment; esp., a customary tax. soul scot. Hist. Eccles. law. See MORTUARY. Also written soul shot. scotal (skot-~I). Hist. An extortionary practice by which forest officers forced people to patronize the officers' alehouses, often in exchange for the officers' ignoring forest offenses. _ This practice was prohibited in 1217 by the Charter of the Forest, ch. 7. Also spelled scotale (skot-ayl). scot and lot. Hist. 1. The customary payment of a share of taxes based on one's ability. 2. A municipal tax on the right to vote. Scotch marriage. See MARRIAGE (1). Scotch verdict. See NOT PROVEN.

scripto vel juramento

scottare (sb-tair-ee), vb. [Law Latin] Hist. To pay a tax. SCPA. abbr. SEMICONDUCTOR CHIP PROTECTION ACT. scrambling possession. See POSSESSION. scrap value. See salvage value under VALUE (2). scratch-and-dent loan. See LOAN. scratching the ticket. A party member's rejection of a candidate on a regular party ticket by canceling the ca ndidate's name or by voting for one or more nominees of the opposing political party. scrawL See SCROLL (3). screening committee. See COMMITTEE. screening grand jury. See GRAND JURY. screening mechanism. See ETHICAL WALL. screen-scraping, n. Intellectual property. The practice of extracting data directly from one website and dis­ playing it on another website. - The source website's database is not used only the display. Screen-scrap­ ing may infringe the extracted website-owner's copy­ right in the contents. screen-scrape, vb. scriba (skrI-b~), n. [Latin] Roman law. A court or office clerk; a scribe; a secretary.• In England, the scriba regis was the king's secretary. Cf. NOTARIUS. scribe. See SECRETARY (3). scribere est agere (skrI-bJ-ree est aj-J-ree). [Latin] Hist. To write is to act. "But now it seems clearly to be agreed. that, by the common law and the statute of Edward III, words spoken amount only to a high misdemeanor, and no treason. For they may be spoken in heat, without any intention .... If the words be set down in writing. it argues more deliberate inten­ tion; and it has been held that writing is an overt act of treason; for scribere est agere. But even in this case the bare words are not the treason, but the deliberate act of writing them." 4 William Blackstone, Commentaries on the Laws of Eng/and 80 (1769).

Scribes. See AMERICAN SOCIETY OF WRITERS ON LEGAL SUBJECTS.

scrip.(lSc) 1. A document that entitles the holder to receive something ofvalue. See LAND SCRIP. 2. Money, esp. paper money, that is issued for temporary use. Internet scrip. 1. Value that may be exchanged over the Internet but may not be exchanged for money. ­ Internet scrip is analogous to coupons or bonus points that can be exchanged by a consumer for goods or services but that have no cash value. 2. See e-money under MONEY. Also termed online scrip. on-line scrip. See Internet scrip. scrip dividend. See DIVIDEND. script. (I4c) L An original or principal writing. 2. Hand­ writing. scripto (skrip-toh). [Latin] Hist. By writing. scripto vel juramento (skrip-toh vel juur-J-men-toh). [Law Latin] Hist. By writ or oath. _ The phrase appeared in reference to the mode of proof required in certain cases.

scriptum indentatum scriptum indentatum (sicrip-t;)m in-den-tay-t;)m). [Law Latin "indented writing"] Hist. An indenture. scrivarius. Law Latin. A notary public. scrivener (skriv-[;)]-n;)r). (14c) A writer; esp., a profes­ sional drafter of contracts or other documents. money scrivener. See MO~EY SCRIVENER. scrivener's error. See clerical error under ERROR (2). scrivener's exception. (1978) An exemption from the attorney-client privilege whereby the privilege does not attach if the attorney is retained solely to perform a ministerial task for the client, such as preparing a statutory-form deed. [Cases: Privileged Communica­ tions and Confidentiality ~ 129, 131.] scroll, n. (ISc) 1. A roll of paper, esp. one containing a writing; a list. 2. A draft or outline to be completed at a later time. 3. A written mark; esp., a character affixed to a signature in place of a seal. - Also termed (in sense 3) scrawl. Scroops's Inn. See SERJEANT'S INN. scrnet-roll (skroo-;)t-rohl). Hist. The record of bail accepted in a habeas corpus case. scrutator (skroo-tay-taf), n. [Latin ff. scrutari "to search"] Hist. A bailiff Of officer who enforces the king's water rights, as by supervising wreckage, flotsam, and jetsam; a customs officer. S.Ct. abbr. 1. SUPREME COURT. 2. Supreme Court Reporter. scutage (skyoo-tij), n. [fro Latin scutum "a shield"] Hist. 1. A monetary payment levied by the king on barons as a substitute for some or all of the knights to be supplied to the king by each baron .• This payment seems to date from the 12th century, Henry II (1154-1189) haVing levied five scutages in the first 11 years of his reign. 2. A fee paid by a tenant-in-chiefby knight-service in lieu of serving in a war. 3. A tax on a knight's estate to help furnish the army. Also termed escuage. "Scutage ... Shield·money, in mediaeval feudal law, a payment in lieu of military service, paid by a tenant·in­ chief in respect of the service of knights which he owed to the Crown. His personal obligation to serve could not be discharged by scutage but only by fine. Payment of scutage, though known in France and Germany, was most highly developed in England where it became a general tax on knights' estates at rates which by the thirteenth century were standardized. King John demanded frequent and heavy scutages and Magna Carta forbade the levying of scutage Without the consent of a general council. Scutage was diVided between the King and the tenants-in·chief who gave personal service in the campaign. It became obsolete by the fourteenth century." David M. Walker, The Oxford Companion to Law 1121 (1980).

scutagio habendo. See DE SCUTAGIO HABENDO. scyra (shy-r;), n. [Law Latin "shire"] Hist. 1. A county; shire. 2. A county's inhabitants. S.D. abbr. Southern District, in reference to U.S. judicial districts. sid b/l. abbr. Sight draft with bill oflading attached. See sight draft under DRAFT.

1466

S.E. abbr. SOUTH EASTERK REPORTER. sea. l. The ocean . 2. A large landlocked part of the ocean; a large body of salt water smaller than a regular ocean . 3. The ocean swell . 4. An extremely large or extended quantity . free seas. See high seas. high seas. The seas or oceans beyond the jurisdiction ofany country. _ Under traditional international law, the high seas began 3 miles from the coast; today the distance is generally accepted as 12 miles. Under the 1982 U.N. Convention on the Law of the Sea, coastal shores now have a 200-mile exclusive economic zone. Also termed free seas; open seas; main sea. [Cases: Criminal Law (;:;::::>97(3); International Law C=-S,7.]

main sea. Archaic. The open ocean; high seas. navigable sea. See NAVIGABLE SEA. open seas. See high seas.

territorial sea. See territorial waters under WATER.

seabed. The sea floor; the ground underlying the ocean, over which nations may assert sovereignty, esp. if underlying their territorial waters. sea brief. See SEA LETTER. seagoiug vessel. See VESSEL. seal, n. (Be) 1. A fastening that must be broken before access can be obtained; esp., a device or substance that joins two things, usu. making the seam impervi­ ous. - Also termed common-law seal. 2. A piece of wax, a wafer, or some other substance affixed to the paper or other material on which a promise, release, or conveyance is written, together with a recital or expres­ sion of intention by which the promisor, releasor, or grantor manifests that a piece of wax, wafer, or other substance is a seal. _ The purpose of a seal is to secure or prove authenticity. 3. A design embossed or stamped on paper to authenticate, confirm, or attest; an impres­ sion or sign that has legal consequence when applied to an instrument. [Cases: Seals ~ 1.] "The use ofthe seal in England seems to have begun after the Norman Conquest, spreading from royalty and a few of the nobility to those of lesser rank. Originally a seal often consisted of wax bearing the imprint of an individu­ alized signet ring, and in the seventeenth century Lord Coke said that wax without impression was not a seal. But in the United States the courts have not required either wax or impression. Impressions directly on the paper were recognized early and are still common for notarial and corporate seals, and gummed wafers have been widely used. In the absence of statute decisions have divided on the effectiveness of the written or printed word 'seal,' the printed initials 'L.S: (locus Sigilli, meaning place of the seal), a scrawl made with a pen (often called a 'scroll') and a recital of sealing. Most states in which the seal is still recognized now have statutes giving effect to one or more such devices." Restatement (Second) of Contracts § 96 emt. a (1979). "The time·honoured form of seal was a blob of wax at the foot of the document, bearing an imprint of some kind, often a crest or motto. The use of wax was not, however, necessary for a seal. and any mark or impression on the

1467 paper was sufficient as long as it was made with the inten­ tion of affixing a seal. Recent English cases have been willing to find the necessary intention in circumstances where courts in the past would almost certainly have declined; so much so that it may now be the common law that a document purporting to be executed as a deed but lacking actual sealing will be regarded as sealed as long as it contains a printed or written indication of where the mark or impression constituting the seal should be placed if it were to be affixed." Peter Butt, Land Law 481-82 (2d ed,1988).

corporate seal. (I8c) A seal adopted by a corporation for executing and authenticating its corporate and legal instruments. [Cases: Corporations (,':,'::)51.] great seal. 1. The official seal of the United States, of which the Secretary of State is the custodian. - Also termed seal ofthe United States. [Cases: United States (::::::5.5.] 2. The official seal of a particular state. ­ Also termed seal ofthe state; state seal. [Cases: States (:::-;:,23.] 3. The official seal of Great Britain, of which the Lord Chancellor is the custodian. notary seal. See NOTARY SEAL private seal. (l6c) A corporate or individual seal, as dis­ tinguished from a public seaL [Cases: Seals public seal. (16c) A seal used to certify documents belonging to a public authority or government bureau. quarter seal. A seal (originally a quarter section of the great seal) maintained in the Scotch chancery to be used on particular grants from the Crown. See great

seal (3). seal ofthe state. See great seal (2). seal ofthe United States. See great seal (1). state seal. See great seal (2). wafer seal. A plastic or paper disk, usu. red or gold, affixed to a legal document as a substitute for a wax seal. _ Wafers are more common in the U.K. than in the U.S. Sometimes shortened to wafer. seal, vb. (14c) 1. To authenticate or execute (a document) by use ofa seaL 2. To close (an envelope, etc.) tightly; to prevent access to (a document, record, etc.). sealed and delivered. See SIGNED, SEALED, AND DELIV­ ERED. sea lane. Int'l & maritime law. A deSignated course or regularly used route for ships, esp. in restricted waters such as harbors and straits, _ Although sea lanes have obvious safety advantages, they were long resisted by sea captains, who saw them as a threat to their freedom to navigate. sea law. See MARITIME LAW. sealed bid. See BID (2). sealed-container rule. (1961) Products liability. The prin­ ciple that a seller is not liable for a defective product if the seller receives the product from the manufacturer and sells it without knowing of the defect or having a reasonable opportunity to inspect the product. [Cases: Products Liability (:::::: 168, 175; Sales (::::::430.J

seal of cause sealed contract. See contract under seal under CONTRACT. sealed instrument. (17c) At common law and under some statutes, an instrument to which the bound party has affixed a personal seal, usu. recognized as providing indisputable evidence ofthe validity ofthe underlying obligations. - The common-law distinction between sealed and unsealed instruments has been abolished by many states, and the UCC proVides that the laws applicable to sealed instruments do not apply to con­ tracts for the sale of goods or negotiable instruments. UCC § 2-203. See contract under seal under CONTRACT. [Cases: Contracts G~36; Seals (::::::, 1.] "At common law, the seal served to render documents indisputable as to the terms of the underlying obligation, thereby dispensing with the necessity of witnesses; the sealed instrument was considered such reliable evidence that it actually became the contract itself called a'spe­ cialty' the loss of which meant loss of all rights of the obligee against the obligor. The seal also had many other consequences at common law, some of which have been retained in jurisdictions which still recognize the seal. , , . In states where the seal is still recognized, its primary legal significance is often the application of a longer statute of limitations to actions on sealed instruments." 69 Am. Jur. 2d Seals § 2, at 617-18 (1993). "In medieval England a wax seal may have performed [the functions of a formality] tolerably well, But in the United States few people owned or used a seal and the ritual deteriorated to the point that wax was dispensed with and printing houses decorated the signature lines of their standard forms with the printed letters 'L.S.' for locus sigilli (place of the sea\), Perfunctory invocation of the rules for sealed documents called into question the seal's utility in making promises enforceable," E, Allan Farnsworth, Changing Your Mind: The Law of Regretted Decisions 46 (l998).

sealed-record statute. See CONFIDENTIALITY STATUTE.

sealed testament. See mystic will under WILL.

sealed verdict. See VERDICT.

sealed will. See mystic will under WILL.

sea letter. Hist. A manifest issued during a war by author­

ities of a port where a neutral vessel is fitted, certifying the vessel's nationality, specifying the nature of and destination of the vessel's cargo, and allOWing the vessel to sail under the neutral flag of its owner. - The last sea letter was issued at the Port of New York in 1806, and the use of sea letters was discontinued by proclama­ tion of President James Madison. - Also spelled sealetter. Also termed sea brief; sea pass; passport. "Our laws require masters of vessels, on entering a port for traffic, to lodge with the consul their registers, sea­ letters, and passports ...." Theodore D. Woolsey, Intro­ duction to the Study of International Law 161-62 (5th ed. 1878). sealing of records. (1953) The act or practice of offiCially preventing access to particular (esp. juvenile-criminal) records, in the absence of a court order. Cf. EXPUNGE­ ME~T OF RECORD. [Cases: Records (;:::'32.] seal of cause. Scots law. The seal of a burgh court, by which a royal burgh could, consistently with its charter powers, create a subordinate corporation by charter. ­

seal of the state

The seal of cause was most commonly used to create charitable corporations and craft guilds. seal of the state. See great seal (2) under SEAL. seal of the United States. See great seal (1) under SEAL. seaman. Maritime law. Under the Jones Act and the Longshore and Harbor Workers' Compensation Act, a person who is attached to a navigating vessel as an employee below the rank of officer and contributes to the function of the vessel or the accomplishment of its mission .• Seamen's are covered under the Jones Act and the general maritime law. Also termed crew member; mariner; member ofa crew. See JONES ACT. Cf. STEVEDORE. [Cases: Seamen 'The Jones Act plaintiff must be a 'seaman' who is injured (or killed) 'in the course of his employment.' The 'course of ... employment' requirement at least excluded pas­ sengers, guests, trespassers, pirates (unless of course the pirate was suing his own employer) and so on. Who else might be excluded (or included) was, as a matter of initial construction, impossible to say. After a half-century of litigation the answer to the riddle is not apparent. The Supreme Court has alternated between giving the term 'seaman' an exceedingly broad construction and giving it a much narrower one. Consequently defendants have been encouraged to argue, in all but the most obvious cases, that plaintiff is not aJones Act seaman and that the action must be dismissed. Thus there has always been, there continues to be, and presumably there will go on being a substantial volume of depressing litigation of this type." Grant Gilmore & Charles L. BlackJr., The Law ofAdmiralty § 6-21, at 328 (2d ed. 1975). "The traditional seaman is a member of the crew of a merchant vessel .. , . However, vessels are not limited in their functions to the transportation of goods over water. The performance by a vessel of some other mission, such as operating as a cruise ship, necessitates the presence aboard ship of employees who do not 'man, reef and steer' the vessel .... Exploration for oil and gas on navigable waters has led to further expansion of the concept of a 'seaman.' In 1959, in the celebrated case of Offshore Oil Co. v. Robinson, 266 F.2d 769 (5th Cir, 1959), the Fifth Circuit held that floating drilling structures are 'vessels' and that the amphibious oil workers aboard them are entitled to the seaman's remedies against their employers and the opera· tors of the 'vessels' on which they are employed." Frank l. Maraist, Admiralty in a NutsheJl178-80 (2d ed. 1988).

able-bodied seaman. An experienced seaman who is qualified for all seaman's duties and certified by an inspecting authOrity. Abbr. AB; ABS. Also termed able seaman; bluewater seaman. [Cases: Seamen 11, 29.) merchant seaman. A sailor employed by a private vessel, as distinguished from one employed in public or military service. [Cases: Seamen (;::;;>2.J ordinary seaman. A seaman who has some experi­ ence but who is not proficient enough to be classified as an able-bodied seaman. Abbr. OS; OD. [Cases: Seamen (;::;;> 11, 29.J seaman's will. See soldier's will under WILL. sea pass. See SEA LETTER. search, n. (14c) 1. Criminal procedure. An examination of a person's body, property, or other area that the person would reasonably be expected to consider as private, conducted by a law-enforcement officer for the purpose

1468

of finding evidence of a crime .• Because the Fourth Amendment prohibits unreasonable searches (as well as seizures), a search cannot ordinarily be conducted without probable cause. [Cases: Searches and Seizures (:;::, 13.] "It must be recognized that whenever a police officer accosts an indiVidual and restrains his freedom to walk away, he has 'seized' that person, And it is nothing less than sheer torture of the English language to suggest that a careful exploration of the outer surfaces of a person's clothing all over his or her body in an attempt to find weapons is not a 'search.'" Terry v. Ohio, 392 U.S. 1, 16, 88 S.Ct. 1868, 1877 (1968) (Warren, j.).

administrative search. (1963) A search of public or commercial premises carried out by a regulatory authority to enforce compliance with health, safety, or security regulations. - The probable cause required for an administrative search is less stringent than that required for a search incident to a criminal investi­ gation. - Also termed regulatory search; inspection search. [Cases: Searches and Seizures (;::;-79.J border search. (1922) 1. A search conducted at the border of a country, esp. at a checkpoint, to exclude illegal aliens and contraband. [Cases: Aliens, Immi­ gration, and Citizenship (;::;;>440-446; Customs Duties (;::;;> 126(1).J "[W)arrantless searches and seizures conducted at national boundaries are permitted under the general authority of the United States to ensure the integrity of its borders. As the Supreme court stated in Carroll v. United States, such activity ensures 'national self-protection reasonably requir­ ing one entering the country to identify himself as entitled to come in, and his belongings as effects which may be lawfully brought in.' [267 U.S. 132, 154,45 S.Ct. 280, 285 (1925).] Thus, the right to remain silent and protect one's personal belongings from government intrusion, normally afforded constitutional protection, are surrendered at the border." Charles H. Whitebread. Criminal Procedure § 12.02, at 227 (1980).

2. Loosely, a search conducted near the border of a country.• Generally, searches near the U.S. border are treated no differently from those conducted else­ where in the country. checkpOint search. (1973) 1. A search anywhere on a military installation. 2. A search in which police officers set up roadblocks and stop motorists to ascer­ tain whether the drivers are intoxicated. [Cases: Auto­ mobiles (;::;;>349(9).] Chimel search. See protective search. consent search. (1965) A search conducted after a person with the authority to do so voluntarily waives Fourth Amendment rights .• The government has the burden to show that the consent was given freely ­ not under duress. Bumper v. North Carolina, 391 U.S. 543, 548-49, 88 S.Ct. 1788, 1792 (1968). Also termed consensual search. [Cases: Searches and Seizures (;::;;> 171-186.J 'The voluntariness of a consent to search is 'to be deter­ mined from the totality of all the circumstances.' [Schneck­ loth v. Bustamante, 412 U.S. 218, 93 S.Ct. 2041 (1973).] Among the factors to be considered in determining the effectiveness of an alleged consent to search are whether the defendant (1) has minimal schooling or was of low

1469

search of patentability

without a warrant. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034 (1969). Also termed search incident to arrest; Chimel search (sh;:l-mel). [Cases: Arrest (;:::)63, 63.5(8); Searches and Seizures (;=70.] regulatory search. See administrative search. search incident to arrest. See protective search.

sector search. See zone search.

shakedown search. (1952) A usu. unannounced and

warrantless search for illicit or contraband material (such as weapons or drugs) in a prisoner's cell. ­ Often shortened to shakedown. [Cases: Prisons 134.J constructive search. A subpoena of a corporation's strip search. (1955) A search of a person conducted after records. that person's clothes have been removed, the purpose "[I]t is settled that the so-called 'constructive search' involved in an administrative subpoena of corporate usu. being to find any contraband the person might be books or records constitutes a 'search' or 'seizure' within I hiding. [Cases: Controlled Substances 126.] the meaning of the Fourth Amendment." 68 Am. Jur. 2d I Searches and Seizures § 44, at 674 (1993). unreasonable search. (18c) A search conducted without probable cause or other considerations that would emergency search. (1971) A warrantless search con­ make it legally permissible. - Also termed illegal ducted by a police officer who has probable cause and , search. reasonably believes that, because of a need to protect I life or property, there is not enough time to obtain voluntary search. (1936) A search in which no duress a warrant. See EMERGENCY DOCTRINE (3). [Cases: or coercion was applied to obtain the defendant's Searches and Seizures consent. See consent search. exigent search (eks-;:l-j;:lnt). (1974) A warrantless search warranted search. (1968) A search conducted under carried out under exigent circumstances, such as authority of a search warrant. [Cases: Searches and an imminent danger to human life or a risk of the Seizures (;= 141.] destruction of evidence. See exigent circumstances warrantless search. (1950) A search conducted without under CIRCUMSTANCE. [Cases: Controlled Substances obtaining a proper warrant. • Warrantless searches 105, 114, 123, 130; Searches and Seizures are permissible under exigent circumstances or when 42.] conducted incident to an arrest. See exigent circum­ illegal search. See unreasonable search. stances under CIRCUMSTANCE; protective search. inventory search. (1966) A complete search of an arrest­ Arrest (;=71.1(1); Searches and Seizures ee's person before that person is booked into jail. • All 42.1.] possessions found are typically held in police custody. zone search. A search of a crime scene (such as the [Cases: Automobiles ~'J349.5(12); Controlled Sub­ stances (;= 117; Searches and Seizures (;=58.] scene of a fire or explosion) by dividing it up into specific sectors. - Also termed sector search. no-knock search. (1970) A search of property by the police without knocking and announcing their 2. An examination of public documents or records presence and purpose before entry.• A no-knock for information; esp., TITLE SEARCH. 3. Int'llaw. search warrant may be issued under limited cir­ The wartime process of boarding and examining cumstances, as when a prior announcement would the contents of a merchant vessel for contraband.• probably lead to the destruction of the objects searched A number of treaties regulate the manner in which for, or would endanger the safety of the police or the search must be conducted. See RIGHT OF SEARCH. another person. [Cases: Searches and Seizures [Cases: War and National Emergency (::=>20.] 143.1; Controlled Substances 153.] search-and-seizure warrant. See SEARCH WARRANT. private search. A search conducted by a private person search book. (1912) A lawbook that contains no state­ rather than by a law-enforcement officer.• Items ments of the law but instead consists of lists or tables found during a private search are generally admis­ sible in evidence if the person conducting the search of cases, statutes, and the like, used simply to help a was not acting at the direction of a law-enforcement resean:her find the law.• Most indexes, other than officer. [Cases: Searches and Seizures (;=33.J index-digests, are search books. protective search. (1967) A search of a detained suspect search committee. See COMMITTEE. and the area within the suspect's immediate control, search incident to arrest. See protective search under conducted to protect the arresting officer's safety SEARCH. (as from a concealed weapon) and often to preserve search of patentability. See PATENTABILITY SEARCH. evidence.• A protective search can be conducted intelligence; (2) was mentally ill or intoxicated; (3) was under arrest at the time the consent was given; (4) was overpowered by officers, handcuffed, or similarly subject to physical restriction; (5) has seized from him by the police the keys to the premises thereafter searched; (6) employed evasive conduct or attempted to mislead the police; (7) denied guilt or the presence of any incriminatory objects in his premises; (8) earlier gave a valid confession or otherwise cooperated, as by instigating the search, or at least the investigation leading to the search; (9) was hesitant in agreeing to the search; or (10) was refused his request to consult with counsel. The presence of some of these factors is not controlling, however, as each case must stand or fall on its own special facts."Jerold H.lsrael & Wayne R. LaFave, Criminal Procedure in a Nutshell 141-42 (5th ed. 1993).

search report

search report. Patents. A list of prior-art documents cited by the patent examiner during the patent appli­ cation's preliminary examination. search warrant. (18c) Criminal law. A judge's written order authorizing a law-enforcement officer to conduct a search of a specified place and to seize evidence. See Fed. R. Crim. P. 41. - A\so termed search-and-sei­ zure warrant. See WARRANT (1). [Cases: Searches and Seizures (;~, 101.] anticipatory search warrant. (1912) A search warrant based on an affidavit showing probable cause that evidence of a certain crime (such as illegal drugs) will be located at a specific place in the future. [Cases: Searches and Seizures (;::::::-122.] blanket search warrant. (1921) 1. A single search warrant that authorizes the search of more than one area. 2. An unconstitutional warrant that authorizes the seizure of everything found at a given location, without specifying which items may be seized. covert-entry search warrant. A warrant authorizing law-enforcement officers to clandestinely enter private premises in the absence of the owner or occupant without prior notice, and to search the premises and collect intangible evidence, esp. photographs and eyewitness information. - Although previously used in federal criminal investigations, these types of warrants were first given express statutory author­ ity by the USA Patriot Act. 18 USCA § 3103a. Infor­ mation gathered while a sneak-and-peek warrant can later be used to support a search warrant under which physical evidence can be seized. - Also termed sneak-and-peek search warrant; surreptitious­ entry search warrant. lCases: Searches and Seizures (;::) 143.1.J no-knock search warrant. (1972) A search warrant that authorizes the police to enter premises without knocking and announcing their presence and purpose before entry because a prior announcement would lead to the destruction of the objects searched for or would endanger the safety of the police or another person. Cf. KNOCK-AND-ANNOUNCE RULE .[Cases: Searches and Seizures (;:::: 143.1.] sneak-and-peek search warrant. See covert-entry search warrant surreptitious-entry search warrant. See covert-entry search warrant. search-warrant affidavit. See AFFIDAVIT. sea reeve (see reev). Hist. An officer appointed to watch the shore and enforce a lord's maritime rights, includ­ ing the right to wreckage. sea rover. 1. A person who roves the sea for plunder; a pirate. 2. A pirate vessel. Sears-Compco doctrine. The principle that Congress, by passing copyright, trademark, and patent laws, has preempted some state-law protection of information that is not protected by those statutes. Sears, Roebuck & Co. v. Stiffel Co., 376 U.S. 225, 84 S.Ct. 784 (1964);

1470

Compco Corp. v. Day-Brite Lighting, Inc., 376 U.S. 234, 84 S.Ct. 779 (1964).• The doctrine reflects a congres­ sional policy decision that public access to informa­ tion outweighs private economic incentives to collect and disseminate it. It limits how far states may protect against misappropriation. [Cases: Copyrights and Intellectual Property (;:::: 109.] seasonable, adj. (ISc) Within the time agreed on; within a reasonable time <seasonable performance of the contract>. seasonal employment. See EMPLOYMENT. seat, n. 1. Membership and privileges in an organiza­ tion; esp., membership on a securities or commodities exchange . [Cases: Exchanges(r~7.]2. The center ofsome activity . seated land. See LAND. seat of government. The nation's capital, a state capital, a county "eat, or other location where the principal offices of the national, state, and local governments are located. [Cases: Counties (;::::;27; States seaward. See CUSTOS MARIS. seaworthy, adj. (Of a vessel) properly equipped and suf­ ficiently strong and tight to resist the perils reasonably incident to the voyage for which the vesseJ is insured. _ An implied condition of marine-insurance policies, unless otherwise stated, is that the vessel will be sea­ worthy. [Cases: Seamen (;:::>9; Shipping (;:::>80,121.] ­ seaworthiness, n. seaworthy vessel. See VESSEL. sec. abbr. 1. (all cap.) SECURITIES AND EXCHANGE COM­ MISSION. 2. Section. See SECTION (1). secession. The process or act of withdrawing, esp. from a religiOUS or politicaJ association . seck (sek), adj. Hist. 1. Lacking the right or remedy of distress. 2. Lacking profits, usu. due to a reversion without rent or other service. See RENT SECK. second, n. Parliamentary law. 1. A statement by a member other than a motion's maker that the member also wants the assembly to consider the motion . 2. Criminal law. A person who directs, assists, or supports another engaged in a duel. See DUEL (2). second, vb. Second Amendment. The constitutional amendment, ratified with the Bill of Rights in 1791, guaranteeing the right to keep and bear arms as necessary for securing freedom through a well-regulated militia. See RIGHT TO BEAR ARMS. [Cases; Weapons (;:::> 1.] secondary, adj. (14c) (Of a position, status, use, etc.) sub­ ordinate or subsequent. secondary, n. Hist. An officer of the courts of the King's Bench and common pleas, so called because he was next to the chief officer.• By the Superior Courts (Officers)

1471

Act (1837), the secondary office was abolished. St. 7 WilL 4; 1 Vict., ch. 30. secondary abuse. See ABDSE. secondary activity. Labor law. A union's picketing or boycotting of a secondary or neutral party, with the goal ofplacing economic pressure on that party so that it will stop doing business with the employer that is the primary subject ofthe labor dispute.• Secondaryactiv­ ities are forbidden by the Labor-Management Relations Act. 29 USCA § 158(b)(4). See secondary boycott under BOYCOTT; secondary picketing under PICKETING. Cf. PRIMARY ACTIVITY. [Cases: Labor and Employment C-::> 1411, 1412.] secondary affinity. See AFFINITY. secondary amendment. See AMENDMENT (3). secondary assumption of risk. See ASSUMPTION OF THE RISK.

secondary authority. See AUTHORITY (4). secondary beneficiary. See contingent beneficiary (2) under BENEFICIARY. secondary boycott. See BOYCOTT. secondary consideration. See SECONDARY FACTOR. secondary conveyance. See CONVEYANCE. secondary creditor. See CREDITOR. secondary devise. See alternative devise under DEVISE. secondary distribution. See DISTRIBUTION. secondary easement. See EASEMENT. secondary-effects test. A court's analysis ofa regulation affecting free-speech interests to determine whether it is actually intended to diminish or eliminate an indirect harm flowing from the regulated expression. • The test is used to distinguish content-specific regula­ tion from content-neutral regulation. A regulation that is facially content-specific may be treated as content­ neutral if its purpose is to diminish or eliminate a sec­ ondary effect of the speech, such as a zoning regulation for adult theaters when it is intended to limit crime. The test was first enunciated in City ofRenton v. Playtime 7heatres, Inc., 475 U.S. 41, 106 S.Ct. 925 (1986). [Cases: Constitutional Law (:::::>2213.] secondary enforcement. See secondary right under RIGHT.

secondary evidence. See EVIDENCE. secondary factor. (usu. pl.) Patents. Objective evidence that courts consider in determining a patent claim's nonobviousness.• Secondary factors include "com­ mercial success, long-felt but unsolved need, failure of others, and unexpected results." Graham v. John Deere Co., 383 US. 1, 17-18 (1966). - Also termed secondary consideration. [Cases: Patents (:::::> 36.1.] secondary insured. See additional insured under INSURED.

secondary insurer. See excess insurer under INSURER.

secondary term

secondary invention. Patents. An invention that uses or incorporates established elements or combinations to achieve a new and useful result. [Cases: Patents 174.) secondary lender. A wholesale mortgage buyer who pur­ chases first mortgages from banks and savings-and­ loan associations, enabling them to restock their money supply and loan more money. secondary liability. See LIABILITY. secondary-line competition. See vertical competition under COMPETITION. secondary-line injury. Antitrust. Under the price-dis­ crimination provisions of the Robinson -Patman Act, the act of hindering or seeking to hinder competition among a seller's customers by selling substantially the same products at favorable prices to one customer, or a select group of customers, to the detriment of others. 15 USCA § 13(a).• A secondary-line injury, which refers to competition among the seller's customers, is distin­ guishable from a primary-line injury, which refers to the anticompetitive effects that predatory pricing has on the direct competitors of the seller. Cf. PRIMARY­ LINE INJURY.

secondary market. See MARKET. secondary meaning. Intellectual property. A special sense that a trademark or tradename for a business, goods, or services has acquired even though the trade­ mark or trade name was originally merely descriptive and therefore not protectable.• The term does not refer to a subordinate or rare meaning, but rather to a later meaning that has been added to the original one borne by the mark or name and that has now become in the market its usual and primary meaning. Also termed special meaning; trade meaning. [Cases: Trademarks (:::::> 1032.J "Secondary meaning is association, nothing more. It exists only in the minds of those of the public who have seen or known or have heard of a brand of goods by some name or sign and have associated the two in their minds." Harry D. Nims, The Law of Unfair Competition and Trade·Marks 105 (1929).

secondary mortgage market. See MORTGAGE MARKET. secondary motion. See MOTION (2). secondary obligation. See OBLIGATION. secondary offering. See OFFERING. secondary party. Commercial law. 1. A party not pri­ marily liable under an instrument, such as a guarantor. [Cases: Bills and Notes 2666.] seconds, n. Commercial law. Goods that are defective or nonconforming because they do not meet a recognized standard. second-step freezeout. See FREEZEOUT. second surcharge. See SURCHARGE. second-tier patent. See UTILITY MODEL.

second user. See JUNIOR USER. secrecy. The state or quality of being concealed, esp. from those who would be affected by the concealment; hidden. secret, n. (14c) 1. Something that is kept from the knowl­ edge of others or shared only with those concerned. See STATE SECRET; TRADE SECRET. 2. Information that cannot be disclosed without a breach of trust; specif., information that is acquired in the attorney-client relationship and that either (1) the client has requested be kept private or (2) the attorney believes would be embarrassing or likely to be detrimental to the client if disclosed.• Under the ABA Code of Professional Responsibility, a lawyer usu. cannot reveal a client's secret unless the client consents after full disclosure. DR 4-101. Cf. CONfIDENCE (3). [Cases: Attorney and Client C=>32(l3).] secretariU5 (sek-ra-tair-ee-as), n. [Law Latin] See APOC­ RISARIUS.

secretary. 1. An administrative assistant. 2. A corporate officer in charge of official correspondence, minutes of board meetings, and records of stock ownership and transfer. - Also termed clerk ofthe corporation. [Cases: Corporations 3. Parliamentary law. An officer charged with recording a deliberative assembly's pro­ ceedings. Also termed clerk; recorder; recording sec­ retary; recording officer; scribe. corresponding secretary. An officer in charge of an organization's correspondence, usu. including notices to members. financial secretary. 1. An officer in charge of billing, collecting, and accounting for dues from the members. 2. TREASURER.

Secretary General. The chief administrative officer of the United Nations, nominated by the Security Council and elected by the General Assembly. Secretary ofAgriculture. The member ofthe President's cabinet who heads the U.S. Department of Agriculture. [Cases: Agriculture C=>2.] Secretary of Commerce. The member ofthe President's cabinet who heads the U.S. Department of Commerce. [Cases: United States C-;:;) 32.] Secretary of Defense. The member of the President's cabinet who heads the U.S. Department of Defense. [Cases: C'nited States C=>32.] Secretary of Education. The member of the President's cabinet who heads the U,S. Department of Education. [Cases: United States secretary of embassy. A diplomatic officer appointed as secretary or assistant, usu. to an ambassador or minister plenipotentiary. Secretary of Energy. The member of the President's cabinet who heads the U.S. Department of Energy. [Cases: United States Secretary of Health and Human Services. The member of the President's cabinet who heads the U.S.

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Department of Health and Human Services. [Cases: United States (:::>32.] Secretary of Homeland Security. The member of the President's cabinet who heads the u.s. Department of Homeland Security. [Cases: United States (:::>32.] Secretary of Housing and Urban Development. The member of the President's cabinet who heads the U.S. Department of Housing and Urban Development. [Cases: United States (:::>32.] Secretary of Labor. The member of the President's cabinet who heads the U.S. Department of Labor. [Cases: United States (:::>32.] secretary oflegation. An officer employed to attend a foreign mission and perform certain clerical duties. Secretary of State. (ISc) 1. The member of the President's cabinet who heads the U.S. Department of State. _ The Secretary is the first-ranking member ofthe cabinet and is also a member of the National Security Council. He or she is fourth in line of succession to the presidency after the Vice President, the Speaker of the House, and the President pro tempore of the Senate. [Cases: Vnited States (:::> 32.] 2. A state government official who is responsible for the licensing and incorporation ofbusinesses, the administration of elections, and other formal duties .• The secretary ofstate is elected in some states and appointed in others. [Cases: United States (:::>68.J Secretary of the Interior. The member of the President's cabinet who heads the U.S. Department ofthe Interior. [Cases: United States (:::>32.] Secretary ofthe Treasury. The member of the President's cabinet who heads the U.S. Department ofthe Treasury. [Cases: United States C=:>32.] Secretary of Transportation. The member ofthe Presi­ dent's cabinet who heads the U.S. Department ofTrans­ portation. [Cases: United States (:::>32.] Secretary of Veterans Affairs. The member of the President's cabinet who heads the U.S. Department of Veterans Affairs. [Cases: United States (:::> 102.] secret ballot. See BALLOT (2). secret detainee. See DETAINEE. secret detention. See DETENTION. secret diplomacy. See DIPLOMACY. secrete (si-kreet), vb. (l7c) To conceal or secretly transfer (property, etc.), esp. to hinder or prevent officials or creditors from finding it. secret equity. See latent equity under EQUITY. secret evidence. See EVIDENCE. secretion of assets. 'The hiding of property, usu. for the purpose of defrauding an adversary in litigation or a creditor. secret lien. See LIEN. secret partner. See PARTNER. Secret Service. See UNITED STATES SECRET SERVICE.

Section 8 and 15 declaration

i

secret session. See executive session under SESSION (1). secret testament. See mystic will under WILL. secret trust. See TRUST. secret will. See mystic will under WILL. secta (sek-to:l), n. [Latin "suit"] 1. Roman law. A group of followers, as of a particular religion or school of phi­ losophy, law, etc.; a religious sect. 2. His!. People whom a plaintiff must bring to court to support the plaintiff's case. 3. Hist. A lawsuit. secta ad molendinum. See DE SECTA AD MOLENDINUM. secta curiae (sek-to:l kyoor-ee-ee). [Latin "suit of court"] Hisl. Attendance at court, esp. by feudal tenants, who are obligated to attend the lord's court as jurors or parties. secta facienda per Wam quae habet eniciam partem (sek-to:l fay-shee-en-do:l po:lr i1-o:lm kwee hay-bo:lt i-nish­ ee-o:lm pahr-to:lm), n. [Law Latin "suit to be performed by her who has the eldest part"] Hist. A writ ordering the eldest heir or coparcener to perform suit and services for all the coheirs or coparceners. secta regalis (sek-to:l ri-gay-lis). [Latin "king's suit"] Hist. An obligation to attend the sheriff's court twice a year, so called because it had the same functions and juris­ diction as the king's court. sectarian, adj. Of or relating to a particular religious sect <sectarian college>. sectatoris (sek-to:l-tor-is), n. [Latin] Roman law. A sup­ porter of a candidate for office, who accompanied a candidate during a campaign, primarily to impress voters. PI. sectatores. secta unica tantum facienda pro pluribus haeredita­ tibus (sek-to:l yoo-no:l-ko:l tan-to:lm fay-shee-en- do:l proh ploor-o:l-bi}s ho:l-red-o:l-tay-to:l-bo:ls), n. [Law Latin "one suit alone to be performed for several inheritances"] Hist. A writ exempting the eldest heir, distrained by a lord to perform several services for the coheirs, from performing all services but one. section. (16c) 1. A distinct part or division of a writing, esp. a legal instrument. - Abbr. §; sec.; s. 2. Real estate. A piece of land containing 640 acres, or one square mile.• Traditionally, public lands in the United States were divided into 640-acre squares, each one called a "section." - Also termed section of land. halfsection. A piece ofland containing 320 acres, laid off either by a north-and-south or by an east-and-west line; half a section ofland. quarter section. A piece ofland containing 160 acres, laid offby a north-south or east-west line; one quarter of a section ofland, formerly the amount usu. granted to a homesteader. Often shortened to quarter. Section 8 affidavit. See DECLARATION OF "LSE. Section 8 and 15 affidavit. See COMBINED § 8 AND § 15 AFFIDAVIT.

Section 8 and 15 declaration. See COMBINED § 8 AND § 15 AFFIDAVIT.

Section 8 declaration. See DECLARATION OF USE. section 8(f) agreement. Labor law. A labor contract that is negotiated between an employer in the construction business and a union that cannot demonstrate that it represents a majority of the employees at the time the contract is executed. 29 USCA § 158(f).• This is an exception to the general rule that an employer need only negotiate with a union that can demonstrate majority status. It was enacted in part because of the nature of the construction industry, in which the employers may have several different jobs in different parts of the country, the jobs are typically completed in a relatively short time, and the workforce is often transient. Since the workforce often does not have suf­ ficient ties to a particular employer to petition for a certification election, section 8(f) agreements provide a certain level ofprotection in recognition of that fact. But section 8(f) agreements are not equivalent to collec­ tive-bargaining agreements. For example, the employer can legally repudiate the agreement at any time, and the employees may not legally picket to enforce the agree­ ment. The main protection such an agreement provides is a monetary obligation, which can be enforced, if necessary, in federal court. And if the union achieves majority status, the section 8(f) agreement will essen­ tially become a fully enforceable collective-bargaining agreement. Section 15 affidavit. See DECLARATION OF INCOKTEST­ ABILITY. Section 15 declaration. See DECLARATION OF INCON­ TESTABILITY. Section 43(a) action. Trademarks. A private cause of action codified in the Lanham Trademark Act and covering a broad spectrum of deceptive trade practices, including passing off, false advertising, trade-dress infringement, trademark dilution, and cyperpiracy. 15 USCA § 1125(a). [Cases: Antitrust and Trade Regu­ lation ~::;;61; Trademarks Section 101 rejection. See REJECTION. Section 102 rejection. See REJECTION. Section 103 rejection. See REJECTION.

Section 112 rejection. See vague-and-indefinite rejection

under REJECTIO.'II. section ofland. See SECTiON (2). sectis nonfaciendis (sek-tis non fay-shee-en-dis). See DE SECTIS NON FACIENDIS. sector (sek-tor), n. [Latin] Roman law. A successful bidder at a public auction. Pi. sectores. sector search. See zone search under SEARCH. secular, adj. Worldly, as distinguished from spiritual <secular business>. secular clergy. 1. Clergy who have no particular religious affiliation or do not belong to a particular religious denomination. 2. Clergy who live in their parishes and minister there, as contrasted with regular clergy who live in monasteries.

secular trust. See TRUST (3). secundum (si-kan-dam), adj. [Latin] Roman law. Accord­ ing to; in favor of, as in secundum actorem ("in favor of the plaintiff'). secundum aequum et bonum (si-kan-dam ee-kwam et boh-mm). [Latin] Hist. According to what is just and good. secundum allegata et probata (si-kan-dam al-a-gay-ta et pra-bay-ta). [Latin] Hist. According to what is alleged and proved. secundum artem (si-kan-dam ahr-tam). [Latin] Hist. According to the art or trade. secundum bonos mores (si-kan-dam boh-nohs mor-eez). [Latin] Hist. According to good usages; customary. secundum bonum et aequum (sa-kan-dam boh-nam et ee-kwam). [Latin] Hist. According to that which is good and equitable. secundum chartam conficiendam (sa-kan-dam kahr-tam kan-fish-ee-eu-dam). [Law Latin] Hist. According to a charter to be granted. Cf. SECUNDUM TENOREM CHARTAE CONFECTAE. secundum consuetudinem manerii (si-k.m-dam kon­ SW;J-t[y]oo-d;J-nam ma-neer-ee-I). [Law Latin] Hist. According to the custom of the manor. secundumformam chartae (si-kan-dam for-mam kahr­ tee). [Law Latin] Hist. According to the form of the charter. secundumformam doni (si-hn-dam for-mam doh-ill). [Latin] Hist. According to the form of the gift or grant. secundum formam statuti (si-kan-dam for-mam sta-t[y] oo-tr). [Law Latin] Hist. According to the form of the statute. secundum legem communem (si-kan-dam lee-jam ka-myoo-nam). [Law l.atin] Hist. According to the common law. secundum legem domicilii, velloc; contractus (sa-kan­ dam lee-jam dom-a-sil-ee-I, velloh-sI kan-trak-tas). [Law Latin] Hist. According to the law of the domicile or of the place where the contract was entered into. See LEX LOCI CONTRACTUS. secundum materiam subjectam (sa-hn-dam ma-teer­ ee-am sab-jek-tam). [Latin] Hist. According to the subject matter. secundum naturam. [Latin] According to nature. secundum normam legis (si-kan-dam nor-mam lee-jis). [Latin] Hist. According to the rule of law; by rule of law. secundum regulam (si-kan-dam reg-p-Iam). [Latin] Hist. According to the rule; by rule. secundum subjectam materiam (si-kan-dam sab-jek­ tam ma-teer-ee-am). [Law Latin] Hist. According to the subject matter. secundum tenorem chartae confectae (sa-kan­ dam ta-nor-am kahr-tee kan-fek-tee). [Latin] Hist.

According to the tenor of the charter already granted. ! Securities and Exchange Commission. The five- member federal agency that regulates the issuance and trading Cf. SECUNDUM CHARTAM CONFICIENDAM. of securities to protect investors against fraudulent or secundum vires hereditatis (s;J-kan-d;Jm VI-reez h;J-red­ unfair practices. - The Commission was established i-tay-tis). [Law Latin] Rist. According to the extent of by the Securities Exchange Act of 1934. -- Abbr. SEC. the inheritance. [Cases: Securities Regulation C::>81-89.J secundum vires inventarii (sa-k;m-dam VI-reez in-ven­ Securities and Investment Board. See FINANCIAL tair-ee-I). [Law Latin] Hist. According to the extent of SERVICES AGENCY. Abbr. SIB. the inventory. securities broker. See BROKER. secured, adj. (1875) 1. (Of a debt or obligation) supported securities exchange. (1909) 1. A marketplace or facility or backed by security or collateraL [Cases: Secured for the organized purchase and sale of securities, esp. Transactions C=>2.] 2. (Of a creditor) protected by a stocks. 2. A group of people who organize themselves pledge, mortgage, or other encumbrance of property to create such a marketplace; EXCHANGE (5). - Often that helps ensure financial soundness and confidence. shortened to exchange. Also termed stock exchange. See SECURITY. [Cases: Mortgages [Cases: Exchanges C::> 1.J secured bond. See BOND (3). regional securities exchange. A securities exchange secured claim. See CLAIM (5). that focuses on stocks and bonds oflocal interest, secured creditor. See CREDITOR. such as the Boston, Philadelphia, and Midwest stock exchanges. - Also termed regional stock exchange. secured debt. See DEBT. Securities Exchange Act of 1934. The federal law reg­ secured loan. See LOAN. ulating the public trading of securities. - This law secured note. See NOTE (1). provides for periodic disclosures by issuers of securities secured party. See secured creditor under CREDITOR. and for the registration and supervision of securities secured transaction. (1936) A business arrangement exchanges and brokers, and regulates proxy solicita­ by which a buyer or borrower gives collateral to the tions. The Act also established the SEC. 15 USCA §§ 78a seller or lender to guarantee payment of an obligation. et seq. - Also termed Exchange Act; 1934 Act. [Cases: - Article 9 of the UCC deals with secured transactions. Securities Regulation C=>35.l0-67.15.] See SECURITY AGREEMENT. [Cases: Secured Transac­ Securities Investor Protection Act. A 1970 federal law tions C~l.] establishing the Securities Investor Protection Cor­ securitas (si-kyoor-i-tas), n. [Latin) 1. Roman law. poration that, although not a governmental agency, Security; freedom from liability after performance. 2. is deSigned to protect investors whose brokers and Civil law. A release. dealers are in financial trouble. - Abbr. SIPA. 15 USCA §§ 78aaa et seq. [Cases: Securities Regulation securitatem inveniendi (si-kyoor-i-tay-tam in-vee-nee­ C=> 185.10-185.21.] en-dI), n. [Law Latin] Hist. A writ from the Crown requiring subjects to find security to ensure that they Securities Investor Protection Corporation. A federally would not leave the kingdom without the Crown's per­ chartered corporation established under the Securities mission. _ It was replaced by ne exeat regno. See NE Investor Protection Act to protect investors and help EXEAT. brokers in financial trouble. - Abbr. SIPe. See SECU­ RITIES INVESTOR PROTECTION ACT. [Cases: Securities securitatepads (si-kyoor-i-tay-tee pay-sis), n. [Law Latin Regulation (;:) 185.11.] "of security of the peace"] Hist. A writ for someone fearing bodily harm from another, as when the person securities-offering distribution. See DISTRIBUTION. has been threatened with violence. - Also termed secu­ securitizable, adj. 1. Of, relating to, or constituting the ritatis pads; writ of threats. class of obligations that a creditor (originator) may securities act. (1933) A federal or state law protecting package and sell to others for corporate purposes. 2. (Of an asset) capable of being rapidly converted to the public by regulating the registration, offering, and cash, as with commercial-loan receivables and trade trading of securities. See SECURITIES ACT OF 1933; SECURITIES EXCHANGE ACT OF 1934; BLUE-SKY LAW. accounts receivable. Securities Act of 1933. The federal law regulating the securitize, vb. To convert (assets) into negotiable secu­ registration and initial public offering of securities, rities for resale in the financial market, allOWing the with an emphasis on full publk disclosure of financial issuing financial institution to remove assets from its books, and thereby improve its capital ratio and liquid­ and other information. 15 USCA §§ 77a-77aa. - Also termed Securities Act; 1933 Act. [Cases: Securities Reg­ ity, and to make new loans with the security proceeds if it so chooses. securitized, adj. - securitization, ulation C=> 11.10-30.15.] n. securities analyst. A person, usu. an employee of a bank, security, n. (15c) 1. Collateral given or pledged to guaran­ brokerage, or mutual fund, who studies a company and tee the fulfillment of an obligation; esp., the assurance reports on the company's securities, financial condi­ that a creditor will be repaid (usu. with interest) any tion, and prospects.

money or credit extended to a debtor. [Cases: Secured Transactions 115.]2. A person who is bound by some type of guaranty; SURETY. 3. The state of being secure, esp. from danger or attack. 4. An instrument that evidences the holder's ownership rights in a firm (e.g., a stock), the holder's creditor relationship with a firm or government (e.g., a bond), or the holder's other rights (e.g., an option). - A security indicates an interest based on an investment in a common enterprise rather than direct participation in the enterprise. Under an important statutory definition, a security is any interest or instrument relating to finances, including a note, stock, treasury stock, bond, debenture, evidence of indebtedness, certificate of interest or participation in a profit-sharing agreement, collateral trust certificate, preorganization certificate or subscription, transfer­ able share, investment contract, voting trust certificate, certificate ofdeposit for a security, fractional undivided interest in oil, gas, or other mineral rights, or certificate of interest or participation in, temporary or interim certificate for, receipt for, guarantee of, or warrant or right to subscribe to or purchase any ofthese things. A security also includes any put, call, straddle, option, or privilege on any security, certificate of deposit, group or index of securities, or any such device entered into on a national securities exchange, relating to foreign Also termed (in sense currency. 15 USCA § 77b(1). 4) evidence ofindebtedness; evidence ofdebt. Cf. SHARE (2); STOCK (4). [Cases: Corporations C::>63.1, 470; Secu­ rities Regulation 249.] "Securities differ from most other commodities in which people deal. They have no intrinsic value in themselves they represent rights in something else. The value of a bond, note or other promise to pay depends on the finan­ cial condition of the promisor. The value of a share of stock depends on the profitability or future prospects of the corporation or other entity which issued it; its market price depends on how much other people are willing to pay for it, based on their evaluation of those prospects." David L. Ratner, Securities Regulation in a .Nutshell1 (4th ed. 1992). "What do the following have in common: scotch whisky, self-improvement courses, cosmetics, earthworms, beavers, muskrats, rabbits, chinchillas, fishing boats, vacuum cleaners, cemetery lots, cattle embryos, master recording contracts, animal feeding programs, pooled litigation funds, and fruit trees? The answer is that they have all been held to be seCUrities within the meaning of federal or state securities statutes. The vast range of such unconventional investments that have fallen within the ambit of the securities laws' coverage is due to the broad statutory definition of a 'security' ...." 1 Thomas Lee Hazen, Treatise on the Law of Securities Regulation § 1.5, at 28-29 (3d ed. 1995).

adjustment security. A stock or bond that is issued during a corporate reorganization. _ The security holders' relative interests are readjusted during this process. assessable security. A security on which a charge or assessment covering the obligations of the issuing company is made. _ Bank and insurance-company stock may be assessable.

asset-backed security. A debt security (such as a bond) that is secured by assets that have been pooled and secured by the assets from the pool. bearer security. An unregistered security payable to the holder. Cf. bearer bond under BOND (3). callable security. See redeemable security. certificated security. A security that is a recognized investment vehicle, belongs to or is divisible into a class or series of shares, and is represented on an instrument payable to the bearer or a named person. UCC § 8-102(1)(4). [Cases: Corporations 63.1; Securities Regulation exempt security. A security that need not be registered under the provisions ofthe Securities Act of 1933 and is exempt from the margin requirements ofthe Secu­ rities Exchange Act of 1934. [Cases: Securities Regula­ tion C::> 14.10-14.40.]

security

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fixed-income security. A security that pays a fixed rate of return, such as a bond with a fixed interest rate or a preferred stock with a fixed dividend. government security. A security issued by a govern­ ment, a government agency, or a government corpora­ tion; esp., a security (such as a Treasury bill) issued by a U.S. government agency, with the implied backing of Congress. - Also termed government-agency security; agency security; government bond. [Cases: Securities Regulation C=o5.29; United States C-::>91.] heritable security. Scots law. A debt instrument secured by a charge on heritable property. Also termed inheritable security. See heritable bond under BOND (2).

high-grade security. A security issued by a company of sound financial condition and having the ability to maintain good earnings (e.g., a utility company security). hybrid security. A security with features of both a debt instrument (such as a bond) and an equity interest (such as a share of stock).• An example of a hybrid security is a convertible bond, which can be exchanged for shares in the issuing corporation and is subject to stock-price fluctuations. investment security. An instrument issued in bearer or registered form as a type commonly recognized as a medium for investment and evidencing a share or other interest in the property or enterprise of the issuer. [Cases: Securities Regulation C=o5.1O, 252.] junior security. A security that is subordinate to a senior security.• Junior securities have a lower priority in claims on assets and income. landed security. A mortgage or other encumbrance affecting land. [Cases: Mortgages letter security. See restricted security. listed security. A security accepted for trading on a securities exchange .• The issuing company must have met the SEC's registration requirements and complied with the rules ofthe particular exchange. Also termed listed stock. See DELISTING. [Cases: Exchanges C::> 13.10.] long-term security. 1. A new securities issue with an initial maturity of ten years or more. 2. On a balance sheet, a security with a remaining maturity of one year or more. low-grade security. A security with low investment quality.• Low-grade securities usu. offer higher yields to attract capital. See high-yield bond under BOND

(3).

marginable security. A security that can be bought on margin. - Also termed margin stock. See MARGIN. margined security. A security that is bought on margin and that serves as collateral in a margin account. See MARGIN.

marketable security. A security that the holder can readily sell on a stock exchange or an over-the-coun­ ter market. mortgage-backed security. A security (esp. a pass­ through security) backed by mortgages .• The cash flow from these securities depends on principal and interest payments from the pool of mortgages. See stripped mortgage-backed security. [Cases: Securities Regulation C=o5.13.] municipal security. See municipal bond under BOND (3).

noncallable security. A security that cannot be redeemed, or bought back, at the issuer's option. Also termed (specif.) noncallable bond. nonmarketable security. 1. A security that cannot be sold on the market and can be redeemed only by the holder. 2. A security that is not of investment quality. outstanding security. A security that is held by an investor and has not been redeemed by the issuing corporation. pass-through security. A security that passes through payments from debtors to investors .• Pass-through securities are usu. assembled and sold in packages to investors by private lenders who deduct a service fee before passing the principal and interest payments through to the investors. personal security. 1. An obligation for the repayment of a debt, evidenced by a pledge or note binding a natural person, as distinguished from property. 2. A person's legal right to enjoy life, health, and reputation. public security. A negotiable or transferable security that is evidence of government debt. real security. The security of mortgages or other liens or encumbrances upon land. See COLLATERAL (2). [Cases: Mortgages C=o 1.] redeemable security. Any security, other than a short­ term note, that, when presented to the issuer, entitles the holder to receive a share ofthe issuer's assets or the cash equivalent. Also termed callable security. registered security. 1. A security whose owner is recorded in the issuer's books .• The issuer keeps a record ofthe current owners for purposes ofsending dividends, interest payments, proxies, and the like. 2. A security that is to be offered for sale and for which a registration statement has been submitted. - Also termed (specif.) registered stock. [Cases: Securities Regulation C~ 11.10-11.50.] restricted security. A security that is not registered with the SEC and therefore may not be sold publicly unless specified conditions are met. • A restricted security is usu. acquired in a non public transaction in which the buyer gives the seller a letter stating the buyer's intent to hold the stock as an investment rather than resell it. Also termed restricted stock; letter security; letter stock; unregistered security.

security agreement

senior security. A security of a class having priority over another class as to the distribution of assets or the payment of dividends. 15 USCA § 77r(d)(4). shelf security. A security that is set aside for shelf reg­ istration. short-term security. A bond or note that matures and is payable within a brief period (often one year). speculative security. A security that, as an invest­ ment, involves a risk ofloss greater than would usu. be involved; esp., a security whose value depends on proposed or promised future promotion or develop­ ment, rather than on present tangible assets or con­ ditions. stripped mortgage-backed security. A derivative security providing distributions to classes that receive different proportions of either the principal or interest payments from a pool of mortgage-backed securi­ ties. - Abbr. 5MBS. See mortgage-backed security. structured security. (usu. pl.) 1. A security whose cash­ flow characteristics depend on one or more indexes, or that has an embedded forward or option. 2. A securitv for which an investor's investment return and the iss~er's payment obligations are contingent on, or highly sensitive to, changes in the value ofthe under­ lying assets, indexes, interest rates, or cash flows. SEC Rule 434(h) (17 CFR § 230.434(h». treasury security. See treasury stock under STOCK. uncertificated security. A share or other interest in property or an enterprise, or an obligation of the issuer that is not represented by an instrument but is registered on the issuer's books. UCC § 8-102(a)(18). • This term was called uncertified security in earlier Also termed (in BrE) dema­ versions of the UCC. terialized security. unlisted security. An over-the-counter security that is not registered with a stock exchange. - Also termed unlisted stock. unregistered security. See restricted security. voting security. See voting stock under STOCK. when-issued security. A security that can be traded even though it has not yet been issued .• Any transac­ tion that takes place does not become final until the security is issued. worthless security. A security that has lost its value, for which a loss (usu. capital) is allowed for tax purposes. IRC (26 USCA) § 165. [Cases: Internal Revenue 3429.] zero-coupon security. A security (esp. a bond) that is issued at a large discount but pays no interest. • The face value of the bond is payable at maturity. security agreement. An agreement that creates or prOVides for an interest in specified real or personal property to guarantee the performance of an obligation. • It must provide for a security interest, describe the collateral, and be signed by the debtor. The agreement

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may include other important covenants and warranties. [Cases: Secured Transactions (;::::-'41-51.] Security Council. A principal organ of the United Nations, consisting offive permanent members (China, France, Russia, the United Kingdom, and the United States) and ten additional members elected at stated intervals, charged with the responsibility of main­ taining international peace and security, and esp. of preventing or halting wars by diplomatic, economic, or military action .• The nonpermanent members are elected from each of the world's major regions, based on a distribution formula. [Cases: International Law (;:::> 10.45.] security deposit. See DEPOSIT (3). security for costs. (l7c) Money, property, or a bond given to a court by a plaintiff or an appellant to secure the payment of court costs if that party loses. [Cases: Costs (;::::-105,302; Federal Civil Procedure 2732.] security grade. See SECURITY RATING. security grading. See SECURITY RATING. security interest. (1951) A property interest created by agreement or by operation oflaw to secure performance of an obligation (esp. repayment of a debt) .• Although the UCC limits the creation of a security interest to personal property, the Bankruptcy Code defines the term to mean "a lien created by an agreement." 11 USCA § 101(51). [Cases: Secured Transactions C=)2, 11.] perfected security interest. (1955) A security interest that complies with the statutory requirements for achieving priority over a trustee in bankruptcy and unperfected interests .• A perfected interest may also have priority over another interest that was perfected later in time. See PERFECT. [Cases: Bankruptcy 2952; Secured Transactions 81-96, 138-145.] purchase-money security interest. (1957) A security interest that is created when a buyer uses the lender's money to make the purchase and immediately gives the lender security by using the purchased property as collateral (UeC § 9-107); a security interest that is either (1) taken or retained by the seller of the col­ lateral to secure all or part of its price or (2) taken by a person who by making advances or incurring an obligation gives value to enable the debtor to acquire rights in or the use of collateral if that value is in fact so used .• If a buyer's purchase ofa boat, for example, is financed by a bank that loans the amount of the purchase price, the bank's security interest in the boat that secures the loan is a purchase-money security interest. Abbr. PMSI. - Also termed purchase­ money interest. [Cases: Secured Transactions 146.] unperfected security interest. (1957) A security interest held by a creditor who has not established priority over any other creditor. - The only priority is over the debtor. [Cases: Secured Transactions 139.]

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segregation

security rating. 1. The system for grading or classifying a security by financial strength, stability, or risk.• Firms such as Standard and Poor's and Moody's grade securi­ ties. Also termed security grade; security grading; security rate. 2. The classification that a given security is assigned to under this system.

secus (see-kas). [Latin] Otherwise; to the contrary. sedato animo (5i-day-toh an-a-moh). [Latin] With stated or settled purpose. se defendendo (see def-en-den-doh), adv. [Law Latin] In self-defense; in defending oneself . "Homicide se defendendo is of two kinds. (1) Such, as tho it excuseth from death, yet it excuseth not the forfeiture of goods, ... (2) Such as wholly acquits from all kinds of forfeiture." 1 Hale P.c. 478.

sedentary work. See WORK (1). sedente curia (si-den-tee kyoor-ee-d). [Latin]lhe court sitting; during the court sitting. sede plena (see-dee plee-nd). [Latin] Hist. The see being filled.• This term indicated that a bishop's see was not vacant. sederunt. See ACT OF SEDERUNT. sedes (see-deez), n. [Latin "a seat"] 1. Roman law. A private residence. 2. Roman law. Judicial office; the bench. 3. Hist. A see; a bishop's dignity. sede vacante (see-dee vd-kan-tee). [Law Latin] Hist. The benefice being vacant. sedge flat. A tract ofland below the high-water mark. sedition, n. (l4c) 1. An agreement, communication, or other preliminary activity aimed at inciting treason or some lesser commotion against public authority. 2. Advocacy aimed at inciting or producing - and likely to incite or produce - imminent lawless action .• At common law, sedition included defaming a member of the royal family or the government. The differ­ ence between sedition and treason is that the former is committed by preliminary steps, while the latter entails some overt act for carrying out the plan. But if the plan is merely for some small commotion, even accomplishing the plan does not amount to treason. Cf. TREASON. [Cases: Insurrection and Sedition 1.] - seditious, adj. "Sedition - This, perhaps the very vaguest of all offences known to the Criminal Law, is defined as the speaking or writing of words calculated to excite disaffection against the Constitution as by law established, to procure the alteration of it by other than lawful means, or to incite any person to commit a crime to the disturbance of the peace, or to raise discontent or disaffection, or to promote ill-feeling between different classes of the community. A charge of sedition is, historically, one ofthe chief means by which Government, especially at the end of the eighteenth and the beginning of the nineteenth century, strove to put down hostile critics. It is evident that the vagueness of the charge is a danger to the liberty of the subject, especially if the Courts of Justice can be induced to take a view favour­ able to the Government." Edward Jenks, The Book of English Law 136 (P.B. Fairest ed., 6th ed. 1967).

Sedition Act. Hist. A 1798 federal statute that prohibited the malicious publication ofdefamatory material about the government, Congress, or the President. • The act expired in 1801. seditious conspiracy. See CONSPIRACY. seditious libel. See LIBEL. seditious speech. See SPEECH. sed non allocatur (sed non al-a-kay-tar). [Law Latin] Hist. But it is not allowed or upheld.• This phrase was formerly used to indicate the court's disagreement with the arguments of counsel. sed per curiam (sed pdr kyoor-ee-dm). [Latin] But by the court. • This phrase is used to introduce: (1) a state­ ment made by the court disagreeing with counsel's arguments; or (2) the opinion of the whole court when different from the opinion of the single judge immedi­ ately before quoted. sed quaere (sed kweer-ee). [Latin] But inquire; examine this further.• This remark indicates that the correct­ ness of a particular statement is challenged. seduction. (16c) The offense that occurs when a man entices a woman of previously chaste character to have unlawful intercourse with him by means of persua­ sion, solicitation, promises, or bribes, or other means not involving force .• Many states have abolished this offense for persons over the age oflegal consent. Tra­ ditionally, the parent of a young woman had an action to recover damages for the loss of her services. But in measuring damages, the jury could consider not just the loss of services but also the distress and anxiety that the parent had suffered in being deprived of her comfort and companionship. 1bough seduction was not a crime at common law, many American states made it a statutory crime until the late 20th century. [Cases: Seduction 10.] seisin in fact. See seisin in deed. seisin in law. (l7e) The right to immediate possession of a freehold estate in land, as when an heir inherits land but has not yet entered it. - Also termed legal seisin; constructive seisin; equitable seisin; fictitious seisin. [Cases: Property C=> 10.] "Seisin in law is, when something is done, which the law accounteth a seisin; as an inrollment." 2 E. Chambers, Cyclopedia: Or, an Universal Dictionary ofArts and Sciences (1743), s.v. SEISIN 'N FACT.

seisina (see-zin-13.1.]

is singled out for prosecution when others Similarly situated have not been prosecuted and the prosecutor's reasons for doing so are impermissible. constructive seizure. A manifest intent to seize and take possession of another person's property, usu. either selective prospectivity. (1991) A court's decision to apply a new rule oflaw in the particular case in which the new by lawfully acquiring actual custody and control of rule is announced, but to apply the old rule in all other the property or by posting notice of the property's cases pending at the time the new rule is announced pending foreclosure. [Cases: Attachment C=> 162; or in which the facts predate the new rule's announce­ Execution C=> 126.] ment. [Cases: Courts C=' 100(1).] select committee. See special committee under COMMIT­ i Selective Service System. The federal agency that reg­ TEE. isters all persons 18-26 who are eligible for military select council. See COUNCIL. service military service and prOVides personnel to the selecti judices (si-Iek-tI joo-di-seez). [Latin] Roman law. i Armed Forces during emergencies.• It was established Jurors on the official panel prepared by the praetor, in 1940 as a part of the War Manpower Commission who for a specific trial were drawn by lot subject to and became independent in 1943. - Abbr. SSS. [Cases: challenge and sworn to office in a similar manner to Armed Services C~\20.8.1 modern juries. I selectman. A municipal officer elected annually in some selective disclosure. (1963) The act ofdivulging part ofa New England towns to transact business and perform privileged communication, or one of several privileged some executive functions. [Cases: Towns C=>26.] communications, usu. because the divulged portion is helpful to the party giving the information, while • self-applying, adj. (1894) (Of a statute, ordinance, etc.) harmful portions ofthe communication are withheld. ! requiring no more for interpretation than a familiarity - Such a disclosure can result in a limited waiver ofthe i with the ordinary meanings of words. self-authentication. See AUTHENTICATION. privilege for all communications on the same subject matter as the divulged portion. [Cases: Privileged Com­ self-canceling installment note. See NOTE (1). munications and ConfidentialityC=>20.] self-crimination. See SELF-INCRIMINATION. selective-draft law. A statute empowering the federal self-critical-analysis privilege. See PRIVILEGE (3). government to conscript citizens for military duty. ­ self-dealing, n. (1940) Participation in a transaction that The constitutionality of the first selective-draft law benefits oneself instead of another who is owed a fidu­ was challenged and upheld in the Selective-Draft-Law ciary duty.• For example, a corporate director might Cases. See Arver v. United States, 245 U.S. 366, 38 S.Ct. engage in self-dealing by participating in a compet­ 159 (1918). [Cases: Armed Services C=>20, 40.1.] ing business to the corporation's detriment. Cf. FAIR selective enforcement. (1958) The practice of law­ DEALING (1), (2). [Cases: Corporations ~315, 316.]­ enforcement officers who use wide or even unfettered self-deal, vb. discretion about when and where to carry out certain self-defense, n. (1651) 1. The use of force to protect laws; esp., the practice of singling a person out for pros­ oneself, one's family, or one's property from a real or ecution or punishment under a statute or regulation threatened attack. • Generally, a person is justified in because the person is a member of a protected group using a reasonable amount of force in self-defense if or because the person has exercised or is planning to he or she reasonably believes that the danger ofbodily exercise a constitutionally protected right. - Also harm is imminent and that force is necessary to avoid termed selective prosecution. Cf. vindictive prosecution this danger. Also termed defense ofseif. Cf. adequate under PROSECUTION. [Cases: Constitutional Law provocation under PROVOCATION. [Cases: Assault and 223,250.1(3); Criminal Law C=>37.1O.] Battery c= 13, 67; Homicide C:;>766.J "The chief of police of a New England town once declared to the press that he believed in a strict curfew law, 'selectively enforced.' 'Selective enforcement' in this case means that the policeman decides for himself who ought to be sent home from the street; legislative candour would suggest that if this is the intention it ought to be expressed in the law itself, instead of being concealed behind words that are 'strict' and categorical." Lon L. Fuller, Anatomy of the Law 42 (1968).

selective incorporation. See INCORPORATION. selective prosecution. (1967) I. SELECTIVE ENFORCE­ MENT. 2. The practice or an instance of a criminal pros­ ecution brought at the discretion ofa prosecutor rather than one brought as a matter of course in the normal functioning of the prosecuting authority's office. _ Selective prosecution violates the Equal Protection Clause of the Fourteenth Amendment if a defendant

'The law of self-defence, as it is applied by the courts, turns

on two requirements: the force must have been necessary, and it must have been reasonable." Andrew Ashworth, Prin­ ciples of Criminal Law 114 (1991).

imperfect self-defense. (1882) The use of force by one who makes an honest but unreasonable mistake that force is necessary to repel an attack. - In some juris­ dictions, such a self-defender will be charged with a lesser offense than the one committed. [Cases: Homicide C'J686.] perfect self-defense. (1883) The use of force by one who accurately appraises the necessity and the amount of force to repel an attack. 2. Int' I law. The right ofa state to defend itself against a real or threatened attack. See United Nations Charter,

art. 51 (59 Stat. 1031). - Also spelled (esp. in BrE) self­ defence. self-defender, n. "Self-defence, properly understood, is a legal right, and as with other legal rights the question whether a specific state of facts warrants its exercise is a legal question. It is not a question on which a state is entitled, in any special sense, to be ajudge in its own cause." J.L Brierly, The Law of Nations 319 (5th ed. 1955).

self-destruct clause. A provision in a trust for a con­ dition that will automatically terminate the trust. ­ Discretionary trusts, esp. supplemental-needs trusts, often include a self-destruct provision. For example, a trust to provide for the needs of a disabled person may terminate if the beneficiary becomes ineligible for a government-benefits program such as Medicaid. self-destruction. See SUICIDE (1). self-determination contract. See CONTRACT. self-determination election. See GLOBE ELECTION. self-disserving declaration. Hist. See declaration against interest under DECLARATION (6). self-employed retirement plan. See KEOGH PLAN. self-employment tax. See TAX. self-evaluation privilege. See self-critical-analysis privi­ lege under PRIVILEGE (3). self-executing, adj. (1857) (Of an instrument) effective immediately without the need of any type of imple­ menting action . _ Legal instruments may be self-executing according to various standards. l;or example, treaties are self-executing under the Supremacy Clause of the U.S. Constitution (art. VI, § 2) if textually capable of judicial enforcement and intended to be enforced in that manner. self-help, n. (1831) An attempt to redress a perceived wrong by one's own action rather than through the normal legal process. - The UCC and other statutes provide for particular self-help remedies (such as repos­ session) if the remedy can be executed without breach­ ing the peace. UCC § 9-609. - Also termed self-redress; extrajudicial enforcement. [Cases: Secured Transactions C=228.] "Notice to the debtor is generally not required prior to self-help repossession of collateral by the creditor upon default, although the provision for self-help repossession has been held to violate due process requirements in some instances, and states under the Uniform Consumer Credit Code require particular notice requirements. Furthermore, while the UCC generally does not require notice to the debtor upon self-help repossession of the collateral upon the debtor's default, the agreement between the parties may require such notice prior to repossession." 68A Am. Jur. 2d Secured Transactions § 608, at 466 (1993).

self-help remedy. See extrajudiCial remedy under REMEDY.

self-incrimination. (1853) The act of indicating one's own involvement in a crime or exposing oneself to pros­ ecution, esp. by making a statement. - Also termed self-crimination; self-inculpation. See RIGHT AGAINST

[Cases: Criminal Law C='393; Witnesses C;)297.] Self-Incrimination Clause. (1925) The clause of the Fifth Amendment to the U.S. Constitution barring the government from compelling criminal defendants to testify against themselves. [Cases: Witnesses (;:=:>299.] self-inculpation. See SELF-INCRIMLNATION. self-induced frustration. See FRUSTRATION. self-induced intoxication. See voluntary intoxication under INTOXICATION. self-insurance. See INSURANCE. self-insured retention. Insurance. The amount of an oth­ erwise-covered loss that is not covered by an insurance policy and that usu. must be paid before the insurer will pay benefits . Abbr. SIR. C( DEDUCTIBLE. [Cases: Insurance (;:=:>2283.] self-killing. See SUICIDE (1). self-liquidating mortgage. See amortized mortgage under MORTGAGE. self-murder. See SUICIDE (1). self-policing privilege. See self-critical-analysis privilege under PRIVILEGE (3). self-proved will. See WILL. self-proving affidavit. See AFFIDAVIT. self-redress. See SELF-HELP. self-regulation. See REGULATION (1). self-regulatory organization. A nongovernmental orga­ nization that is statutorily empowered to regulate its members by adopting and enforcing rules of conduct, esp. those governing fair, ethical, and efficient prac­ tices. Abbr. SRO. self-represented litigant. See PRO SE. self-serving declaration. See DECLARATION (6). self-settled trust. See TRUST. self-slaughter. See SUICIDE (1). self-stultification. (1862) The act or an instance of testi­ fying about one's own deficiencies. See STULTIFY. sell, vb. (bef. 12c) To transfer (property) by sale. seller. (l3c) 1. A person who sells or contracts to sell goods; a vendor. UCC § 2-103(l)(d). [Cases: Sales (;:=:> 15.] 2. Generally, a person who sells anything; the transferor of property in a contract of sale. seller's market. See MARKET. seller's option. See OPTION. selling agent. See AGENT (2). selling price. See sales price under PRICE. sell-off, n. A period when heavy pressure to sell causes falling stock-market prices. sell order. See ORDER (8), SELF-INCRIMINATION.

semble (sem-b;Jl). [Law French] (1817) It seems; it would appear <semble that the parties' intention was to create a binding agreement>.• This term is used chiefly to indicate an obiter dictum in a court opinion or to intro­ duce an uncertain thought or interpretation. - Abbr. sem.; semb. semestria (si-mes-tree-;J), n. [Latin «half-yearly matters"] Roman law. The collected decisions of Roman emperors, issued every six months. Semiconductor Chip Protection Act. Intellectual property. A 1984 statute protecting manufacturers against the unauthorized copying or use of semicon­ ductor chips and the mask works used to manufacture them. _ Semiconductor chips do not qualify for patent protection since technological advancements are small and usu. obvious. Mask works are multi-layered, three­ dimensional templates used to produce semiconduc­ tor chips. Mask-work design is more functional than expressive and so traditional copyright protection was inapplicable until 1984. The Act provides copyright protection to the mask works for a period often years. 17 USCA §§ 901-914. - Abbr. SCPA. [Cases: Copy­ rights and Intellectual Property (::::::> lOA.] semi-free software. Software that does not include source code but comes with permission for individu­ als to use, copy, modify, and distribute the software for nonprofit purposes. Cf. FREEWARE; PROPRIETARY SOFTWARE; SHAREWARE.

semi-matrimonium (sem-I ma-tr 1137.] sensitivity training. (1956) One or more instructional sessions for management and employees, designed to counteract the callous treatment of others, esp. women and minorities, in the workplace. sensus (sen-s~s). [Latin] Hist. Sense; meaning; signi­ fication. _ The word appears in its inflected form in phrases such as malo sensu ("an evil sense"), mitiori sensu ("in a milder sense"), and sensu honesto nn an honest sense").

sentence, n. (14c) The judgment that a court formally pronounces after finding a criminal defendant guilty; the punishment imposed on a criminal wrongdoer . See Fed. R. Crim. P. 32. Also termed judgment ofconviction. [Cases: Sen­ tencing and Punishment ~ 1001.] - sentence, vb. accumulative sentences. See consecutive sentences. aggregate sentence. (1917) A sentence that arises from a conviction on multiple counts in an indictment. [Cases: Sentencing and Punishment ~642-643.1 alternative sentence. (1841) A sentence other than incarceration.• Examples include community service and victim restitution. Also termed creative sentence. [Cases: Sentencing and Punishment 2049,2100-2217.]

blended sentence. In a juvenile-delinquency disposi­ tion, a sanction that combines delinquency sanctions and criminal punishment. concurrent sentences. (1905) Two or more sentences of jail time to be served simultaneously.• For example, ifa convicted criminal receives concurrent sentences of 5 years and IS years, the total amount of jail time is IS years. [Cases: Sentencing and Punishment 547.]

conditional sentence. (1843) A sentence of confinement if the convicted criminal fails to perform the condi­ tions of probation. [Cases: Sentencing and Punish­ ment ~ 1960-1988.] consecutive sentences. (1844) Two or more sentences of jail time to be served in sequence .• For example, ifa convicted criminal receives consecutive sentences of 20 years and 5 years, the total amount of jail time is 25 vears. - Also termed cumulative sentences; accu­ mrllative sentences. [Cases: Sentencing and Punish­ ment consolidated sentence. See general sentence.

creative sentence. See alternative sentence.

death sentence. (1811) A sentence that imposes the

death penalty. See Model Penal Code § 210.6. ­ Also termed judgment ofblood. See DEATH PENALTY. [Cases: Sentencing and Punishment (:::::i 1610,1787.] deferred sentence. (1915) A sentence that will not be carried out if the convicted criminal meets certain requirements, such as complying with conditions of probation. [Cases: Sentencing and Punishment 2051-2054.]

delayed sentence. (1906) A sentence that is not imposed immediately after conviction, thereby allowing the convicted criminal to satisfy the court (usu. by com­ plying with certain restrictions or conditions during the delay period) that probation is preferable to a prison sentence. [Cases: Sentencing and Punishment ~c;2051-2054.1

determinate sentence. (1885) A sentence for a fixed length of time rather than for an unspecified duration. Also termed definite sentence; defini­ tive sentence; fixed sentence; flat sentence; straight

sentence. [Cases: Sentencing and Punishment 1053, 1054.]

excessive sentence. (1879) A sentence that gives more punishment than is allowed by law. [Cases: Sentenc­ ing and Punishment :>34, 1480, 1483.J fixed sentence. 1. See determinate sentence. 2. See man­ datory sentence. flat sentence. See determinate sentence. general sentence. (1891) An undivided, aggregate sentence in a multicount case; a sentence that does not specify the punishment imposed for each count. • General sentences are prohibited. Also termed consolidated sentence. [Cases: Sentencing and Punish­ ment (;:;) 1060.] indeterminate sentence. (1885) 1. A sentence of an unspecified duration, such as one for a term of 10 to 20 years. [Cases: Sentencing and Punishment ~ 1057­ 1059, 1125-1127.] 2. A maximum prison term that the parole board can reduce, through statutoryauthoriza­ tion, after the inmate has served the minimum time required by law. - Also termed indefinite sentence. See INDETERMINATE SENTENCING. intermittent sentence. (1964) A sentence consisting of periods of confinement interrupted by periods of freedom. - Also termed (when served on weekends) weekend sentence. life sentence. (1878) A sentence that imprisons the convicted criminal for life though in some juris­ dictions the prisoner may become eligible for release on good behavior, rehabilitation, or the like. (Cases: Sentencing and Punishment (';=> 1055, 1120.] mandatory sentence. (1926) A sentence set by law with 110 discretion for the judge to individualize punish­ ment. Also termed mandatory penalty; mandatory punishment;fixed sentence. [Cases: Sentencing and Punishment ~'=' 1053, 1054.] maximum sentence. (1898) The highest level of punish­ ment provided by law for a particular crime. (Cases: Sentencing and Punishment ~ 1059, 1127.) minimum sentence. (1891) The least amount of time that a convicted criminal must serve in prison before becoming eligible for parole. [Cases: Sentencing and Punishment ~ 1057, 1126.] multiple sentences. (1938) Concurrent or consecutive sentences, if a convicted criminal is found guilty of more than one offense. [Cases: Sentencing and Pun­ ishment ~500.1 nominal sentence. (1852) A criminal sentence in name only; an exceedingly light sentence. noncustodial sentence. (1971) A criminal sentence (such as probation) not requiring prison time. presumptive sentence. (1978) An average sentence for a particular crime (esp. provided under sentencing guidelines) that can be raised or lowered based on the presence of mitigating or aggravating circumstances. [Cases: Sentencing and Punishment C-::> 34,654.)

prior sentence. (1863) A sentence previously imposed on a criminal defendant for a different offense, whether by a guilty verdict, a guilty plea, or a nolo contendere. [Cases: Sentencing and Punishment 630-637.] split sentence. (1927) A sentence in which part of the time is served in confinement - to expose the offender to the unpleasantness of prison and the rest on probation. See shock probation under PROBA­ TION. [Cases: Sentencing and Punishment (;:;;, 1934, 1936.] straight sentence. See determinate sentence. suspended sentence. (1919) A sentence postponed so that the convicted criminal is not required to serve time unless he or she commits another crime or violates some other court-imposed condition .• A suspended sentence, in effect, is a form of proba­ tion. - Also termed withheld sentence. [Cases: Sen­ tencing and Punishment C::::> 1804-1810.] weekend sentence. See intermittent sentence. sentence bargain. See PLEA BARGAIN. sentence cap. Military law. A pretrial plea agreement in a court-martial proceeding by which a ceiling is placed on the maximum penalty that can be imposed. [Cases: Military Justice C='990, 1326.] sentenced to time served. (1959) A sentencing dispo­ sition whereby a criminal defendant is sentenced to the same jail time that the defendant is credited with serving while in custody awaiting trial. • The sentence results in the defendant's release from custodv. Cf. BALANCE OF SENTENCE SUSPENDED. [Cases: Sen'tenc­ ing and Punishment (;:;;, 1156.] sentence-factor manipulation. See sentencing entrap­ ment under ENTRAPMENT. sentence-package rule. (1996) Criminal procedure. The principle that a defendant can be resentenced on an aggregate sentence that is, one arising from a con­ viction on multiple counts in an indictment - when the defendant successfully challenges part of the con­ viction, as by successfully challenging some but not all of the counts. sentencing. The judicial determination of the penalty for a crime. determinate sentencing. See mandatory sentencing. discretionary sentencing. See indeterminate sentenc­ ing. fixed sentencing. See mandatory sentencing. indeterminate sentencing. Sentencing that is left up to the court, with few or very flexible guidelines. Also termed discretionary sentencing. [Cases; Sentencing and Punishment (;:;;, 1057-1059, Il25-Il27.J mandatory sentencing. A statutorily specified penalty that automatically follows a conviction for the offense, Also often with a mi~imum mandatory term. termed determinate sentencing; fixed sentencing. [Cases: Sentencing and Punishment 1054.]

presumptive sentencing. A statutory scheme that pre­ scribes a sentence or range ofsentences for an offense but allows the court some flexibility in atypical cases. [Cases: Sentencing and Punishment (;:;;, 34,654.] sentencing council. (1973) A panel of three or more judges who confer to determine a criminal sentence. • Sentencing by a council occurs less frequently than sentencing by a Single trial judge. sentencing entrapment. See ENTRAPMENT. sentencing guidelines. (1970) A set of standards for determining the punishment that a convicted criminal should receive, based on the nature of the crime and the offender's criminal history.• The federal government and several states have adopted sentencing guidelines in an effort to make judicial sentencing more consistent. [Cases: Sentencing and Punishment (;:;;,650-998.] sentencing bearing. See PRESENTENCE HEARING. sentencing phase. See PENALTY PHASE. Sentencing Reform Act of 1984. A federal statute enacted to bring greater uniformity to punishments assessed for federal crimes by creating a committee of federal judges and other officials (the United States Sentencing Commission) responsible for producing sentencing gUidelines to be used by the federal courts. 28 USCA § 994(a)(1). Sentencing Table. A reference gUide used by federal courts to calculate the appropriate punishment under the sentencing guidelines by taking into account the gravity of the offense and the convicted person's criminal history. [Cases; Sentencing and Punishment (;:;;,666-871.] sententia (sen-ten-shee-~), n. [Latin] Roman & civil law. 1. Sense; meaning. 2. An opinion, esp. a legal opinion. 3. A judicial decision. sententia voluntatis (sen-ten-shee-;l vol-~n-tay-tis). [Law Latin] Hist. The determination of the will. SEP. abbr. See simplified employee pension plan under EMPLOYEE BENEFIT PLAN.

separability. Copyright. An element of various judicial tests used to determine whether a design in a func­ tional article is a copyrightable work of applied art, or an uncopyrightable industrial design, the test being based on whether the beholder separates the work's artistic appearance from its useful function. _ Some courts use a strict phYSical separability test, but most look at whether the work's two roles are conceptually separate. [Cases: Copyrights and Intellectual Property (;:;;,4.] separability clause. See SEVERABILITY CLAUSE. separable, adj. (14c) Capable of being separated or divided . separable controversy. See CONTROVERSY. separaliter (sep-a-ray-l;l-tar). [Latin] Hist. Separately. ­ This term was formerly used in an indictment to empha­ size that multiple defendants were being charged with separate offenses, when it appeared from the general

1487

language of the indictment that the defendants were jointly charged. separate, adj. (15c) (Of liability, cause of action, etc.) individual; distinct; particular; disconnected. separate action. See ACTION (4). separate and apart. See LIVING SEPARATE AND APART. separate-but-equal doctrine. (1950) The now-defunct doctrine that African-Americans could be segregated if they were provided with equal opportunities and facilities in education, public transportation, and jobs. • This rule was established in Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138 (1896), and overturned in Brown v. Board ofEducation, 347 U.S. 483, 74 S.Ct. 686 (1954). [Cases: Schools C=:> 13(2).] separate caucus. See CAUCUS. separate count. See COUNT.

separate covenant. See several covenant under COVENANT

(1).

separate demise. See DEMISE. separate estate. See ESTATE (1). separate examination. (18c) 1. The private interroga­ tion of a witness, apart from the other witnesses in the same case. 2. The interrogation of a wife outside the presence of her husband by a court clerk or notary for the purpose of acknowledging a deed or other instru­ ment. • This was done to ensure that the wife signed without being coerced to do so by her husband. separate goodwill. See personal goodwill under GOODWILL. separate maintenance. See MAINTENANCE. separate offense. See OFFENSE (1). separate property. (I8c) 1. Property that a spouse owned before marriage or acquired during marriage by inheri­ tance or by gift from a third party, and in some states property acquired during marriage but after the spouses have entered into a separation agreement and have begun living apart or after one spouse has commenced a divorce action. - Also termed individual property. Cf. COMMUNITY PROPERTY; marital property under PROPERTY. [Cases: Divorce (>:::252.3(3).] 2. In some common-law states, property titled to one spouse or acquired by one spouse individually during marriage. 3. Property acquired during the marriage in exchange for separate property (in sense 1 or sense 2). separate-property state. See COMMON·LAW STATE (2). separate return. See TAX RETURN. separate-sovereigns rule. (1995) Criminal procedure. The principle that a person may be tried twice for the same offense despite the Double Jeopardy Clause - if the prosecutions are conducted by separate sovereigns, as by the federal government and a state government or by two different states. See DOUBLE JEOPARDY. [Cases: Double Jeopardy C-= 183.] separate-spheres doctrine. Hist. Family law. The com­ mon-law doctrine that wives were limited to control

separation of powers

of the home the personal or domestic sphere and that husbands had control of the public sphere .• Under this-early-19th century doctrine, the wife was to tend to the home and family and the husband was to be the breadwinner. - Also termed doctrine ofseparate

spheres. separate support. See separate maintenance under MAINTENANCE. separate trading of registered interest and principal of securities. A treasury security by which the owner receives either principal or interest, but usu. not both. - Abbr. STRIP. separate trial. See TRIAL. separatim (sep-a·ray-tim). [Latin] Hist. Severally.• This term referred to the formation of several covenants in a deed. separatio (sep-a-ray-shee-oh), n. See FRUCTUS (1). separatio bonorum. See BENEFICIUM SEPARATIONIS. separation. (l7c) 1. An arrangement whereby a husband and wife live apart from each other while remaining married, either by mutual consent (often in a written agreement) or by judicial decree; the act of carrying out such an arrangement. - Also termed separation from bed and board. See divorce a mensa et thoro under DIVORCE. [Cases: Divorce Husband and Wife C:::277.] 2. The status of a husband and wife having begun such an arrangement, or the judgment or contract that brought about the arrangement. - Also termed (in both senses) legal separation; judicial separa­ tion. 3. Cessation of a contractual relationship, esp. in an employment situation. - separate, vb. separation agreement. (1886) 1. An agreement between spouses in the process of a divorce or legal separation concerning alimony, maintenance, property division, child custody and support, and the like. Also termed separation order (if approved or sanctioned judicially). See temporary order under ORDER. 2. DIVORCE AGREE­ MENT. [Cases: Husband and Wife C=~)277.] separation a mensa et thoro. See divorce a mensa et thoro under DIVORCE. separation from bed and board. 1. SEPARATION (1). 2. See divorce a mensa et thoro under DIVORCE. separation of patrimony. Ovillaw. The act ofproViding creditors of a succession the right to collect against the class of estate property from which the creditors should be paid, by separating certain succession property from property rights belonging to the heirs. [Cases: Descent and Distribution (;=> 137.] separation ofpowers. (1896) The division of governmen­ tal authOrity into three branches ofgovernment leg­ islative, executive, and judicial - each with specified duties on which neither of the other branches can encroach; a constitutional doctrine of checks and balances designed to protect the people against tyranny. Cf. DIVISION OF POWERS. [Cases: Constitutional Law G=2330-2626.]

"[TJhe doctrine of the separation of powers was adopted by the convention of 1787 not to promote efficiency but to preclude the exercise of arbitrary power. The purpose was not to avoid friction, but, by means of the inevitable friction incident to the distribution of the governmental powers among three departments, to save the people from autocracy." Justice Louis Brandeis (as quoted in Roscoe Pound, The Development of Constitutional Guarantees of Liberty 94 (1957)). "Although in political theory much has been made of the vital importance of the separation of powers, it is extraor· dinarily difficult to define precisely each particular power. In an ideal state we might imagine a legislature which had supreme and exclusive power to lay down general rules for the future without reference to particular cases; courts whose sale function was to make binding orders to settle disputes between IndiViduals which were brought before them by applying these rules to the facts which were found to exist; an administrative body which carried on the business of government by issuing particular orders or making decisions of policy within the narrow confines of rules of law that it could not change. The legislature makes, the executive executes, and the judiciary construes the law." George Whitecross Paton, A Textbook ofJurisprudence 330 (GW. Paton & David P. Derham eds., 4th ed. 1972). "Separation of powers means something quite different in the European context from what it has come to mean in the United States .... Separation of powers to an American evokes the famil iar system of checks and balances among the three coordinate branches of government legislative, executive, and judiciary each with its independent con· stitutional basis. To a European, it is a more rigid doctrine and inseparable from the notion of legislative supremacy." Mary Ann Glendon et aI" Comparative Legal Traditions 67 (1994).

separation of witnesses. (1819) The exclusion of wit­ nesses (other than the plaintiff and defendant) from the courtroom to prevent them from hearing the testi­ mony ofothers. [Cases: Criminal Law (;:::::>665; Federal Civil Procedure (';=;>2012; Trial0=>4L] separation order. 1. See SEPARATION AGREEMENT. 2. See ORDER (2). separation pay. See SEVERANCE PAY. separatio tori (sep-Cl-ray-shee-oh tor-I). [Law Latin] Hist. A separation of the marriage bed. See A MENSA ETTHORO. separator, n. Oil & gas. Equipment used at a well site to separate oil, water, and gas produced in solution with oiL. Basic separators simply heat oil to speed the natural separation process, More complex separa­ tors may use chemicals. separatum tenementum (sep-Cl-ray-tClm ten-Cl-men-tClm). [Law Latin] Hist. A separate tenement SEP-IRA. See simplified employee pension plan under EMPLOYEE BENEFIT PLAN. sequatur sub suo periculo (si-kway-tClr s;)b s[y]oo-oh pa-rik-[y];)-loh), n. [Law Latin "let him follow at his peril"] Hist. A writ available when a sheriff returned nihil to several summonses; speci£., a writ issued after the sheriff returned nihil to a warrant ad warrantizan­ dum and follOWing an alias and a pluries writ See SICUT ALIAS. sequela (si-kwee-ICl), n. [Latin "that which follows"] Hist. Suit; process, as in sequela curiae ("a suit ofcourt") and

sequela causae ("the process of a cause"). pL sequelae (si-kwee-Iee). sequela villanorum (si-kwee-la vil-<J-nor-<Jm). [Law Latin] Hist. The family and appurtenances to a villein's goods, which were at the lord's disposaL sequence listing. Patents. A description ofthe nucleotide or amino-acid chain in a biotechnological invention. sequential journal. See JOURNAL OF NOTARIAL ACTS, sequential marriage. See BIGAMY (2). sequester (si-kwes-tar), n. (14c) 1. An across-the-board cut in government spending. [Cases: States ~ 121.]2. A person with whom litigants deposit property being contested until the case has concluded; a sequestra­ tor. sequester, vb. (I5c) 1. To seize (property) by a writ of sequestration. [Cases: Sequestration ~ 15.] 2. To seg­ regate or isolate (a jury or witness) during triaL [Cases: Criminal Law ~665, 854; Federal Civil Procedure C:::)2012; Trial C--J 41, 303,]3. Eccles. law. To excommu­ nicate. See EXCOMMlJNICATION. Also (erroneously) termed sequestrate. [Cases: Criminal Law~665, 854; Trial ~41, 303.] sequestered account. See ACCOUNT. sequesterer. See SEQUESTRATOR. sequestrarifacias (see-kwes-trair-I fay-shee-as), n. [Law Latin "you are to cause to be sequestered"] Hist. Eccles. law. A process to enforce a judgment against a clergy­ man in a benefice, by which the bishop was ordered to sequester a church's rents, tithes, or other profits until the debt was paid. sequestrate, vb. See SEQUESTER. sequestratio (see-kwes-tray-shee-oh), n. [Latin] Roman law. The depositing ofan object in dispute with a holder, the sequester, either voluntarily or by court order. PL sequestrationes (see-kwes-tray-shee-oh-neez). sequestration (see-kwes-tray-shCln), n. (16c) 1. The process by which property is removed from the pos­ sessor pending the outcome of a dispute in which two or more parties contend for it. Cf. ATTACHMENT (1); GARNISHMENT, [Cases: Sequestration ~ l.] conventional sequestration. The parties' voluntary deposit of the property at issue in a lawsuit. judicial sequestration. The court-ordered deposit of the property at issue in a lawsuit. [Cases: Sequestra­ tion~L]

2. The setting apart of a decedent's personal property when no one has been willing to act as a personal rep­ resentative for the estate. 3. The process by which a renounced interest is subjected to judicial management and is distributed as the testator would have wished ifhe or she had known about the renunciation. 4. A judicial writ commanding the sheriff or other officer to seize the goods of a person named in the writ.• This writ is sometimes issued against a civil defendant who has defaulted or has acted in contempt of court [Cases: Sequestration ~ 13.] 5. The court-ordered seizure of

seriatim

1489

a bankrupt's estate for the benefit of creditors. 6. Int'l law. The seizure by a belligerent power of enemy assets. [Cases: War and National Emergency 12.] 7. The freezing of a government agency's funds; SEQUESTER (1). [Cases: States 121.] 8. Custodial isolation of a trial jury to prevent tampering and exposure to public­ ity, or of witnesses to prevent them from hearing the testimony of others. - Also termed (in sense 8) jury sequestration. [Cases: Federal Civil Procedure C=>20l2; Trial 303.] sequestration for rent. Scots law. A landlord's remedy to recover up to one year's unpaid rent by seizing and selling, under court order, the tenant's personal property. Cf. DISTRESS (2). sequestrator (see-kwes-tray-tar). (15c) 1. An officer appointed to execute a writ of sequestration. "[AJ sequestrator was an officer of the Court of Chancery acting under the order of that court in seizing property. The law courts appear, however, to have held that the holder of the property could resist seizure by the officer of the Court of Chancery, and indeed kill that officer if necessary to prevent the seizure. And if he killed the officer, he would not be held gUilty of murder because the Court of Chancery was an illegal tribunal or its decrees were illegal, and could not justify an officer in seizing the property mentioned in the order." Charles Herman Kinnane, A First Book on Anglo­ American Law 306 (2d ed. 1952).

2. A person who holds property in sequestration. Also termed sequesterer. [Cases: Sequestration Cd 14.]

sequestro habendo (si-kwes-troh ha-ben-doh), n. [Law Latin] Hist. Eccles. law. A writ from the sovereign to the bishop ordering the discharge of the sequestration of a benefice's profits. serendipity doctrine. (1989) Criminal procedure. lhe principle that all evidence discovered during a lawful search is eligible to be admitted into evidence at trial. [Cases: Criminal LawC-~394.1(1).] serf. Hist_ A person in a condition of feudal servitude, bound to labor at the will of a lord; a villein .• Serfs differed from slaves in that they were bound to the native soil rather than being the absolute property of a master. "As the categories became indistinct, the more abject vari­ eties of slavery disappeared and in the twelfth century the word 'villein' became the general term for unfree peasants. 'Serf' did not become a legal term of art, and in so far as it remained in use it did not connote a status lower than that of villein. The merger was to the detriment of the villani, but it ensured that full slavery was not received as part of the common law." j.H. Baker, An Intmduction to English Legal History 532 (3d ed. 1990).

sergeant. 1. Hist. A person who is not a knight but holds lands by tenure of military service. 2. Hist. A munici­ pal officer performing duties for the Crown. 3. Hist. A bailiff. 4. SERGEANT-AT-ARMS. 5. A noncommissioned officer in the armed forces ranking a grade above a corporal. 6. An officer in the police force ranking below a captain or lieutenant. - Also spelled serjeant. [Cases: Municipal Corporations 180(2).]

sergeant-at-arms. 1. Hist. An armed officer attending a sovereign. 2. An officer the Crown assigns to attend a session of Parliament. 3. A legislative officer charged with maintaining order and serving notices and process on behalf of the legislative body and its committees. [Cases: States (;::;>32.] 4. Parliamentary law. An officer charged with helping keep order in a meeting under the chair's direction. Also spelled (in senses 1, 2, & 4) serjeant-at-arms_ - Also termed (in sense 4) warden; warrant officer. sergeantry. See SERJEANTY. Sergeant Schultz defense. Slang. An assertion by a criminal or civil defendant who claims that he or she was not an active partiCipant in an alleged scheme or conspiracy, and that he or she knew nothing, saw nothing, and heard nothing.• This defense is named after a character from the television series Hogan's Heroes, in which Sergeant Schultz, a German guard in charge of prisoners of war during World War II, would avoid responsibility for the prisoners' schemes by proclaiming that he saw nothing and knew nothing. [Cases: Criminal Law sergeanty. See SERJEANTY. serial bond. See BOND (3). serial consideration. See consideration seriatim under CONSIDERATION (2).

serial murder. See MURDER. serial note. See installment note under NOTE (1). serial number. 1. A number assigned to a specific thing, esp. a product, to identify it from other things of the same kind .• While serial numbers are usually assigned in numerical order, they may also be random. 2. Patents & Trademarks. An identifying number assigned to a completed patent or trademark application .• The serial number is assigned when the application is received or completed. See APPLICATION NUMBER. serial polygamy. See POLYGAMY (2). serial right. The right of publication; esp., a right reserved in a publishing contract giving the author or publisher the right to publish the manuscript in installments (as in a magazine) before or after the publication of the book. [Cases: Copyrights and Intellectual Property C=>38.] serial violation. (1989) Civil-rights law. The practice by an employer of committing a series of discrimina­ tory acts against an employee, all of which arise out of the same discriminatory intent or animus .• Such a series of discriminatory acts will usu. be considered a continuing violation. For a claim on the violation to be timely, at least one of the discriminatory acts must have taken place within the time permitted to assert the claim (e.g., 300 days for a Title VII claim). Cf. SYSTEM­ ATIC VIOLATION. [Cases: Civil Rights C=> 1505(7).J seriatim (seer-ee-ay-tim), adj. Occurring in a series. seriatim, adv. [Latin] One after another; in a series; suc­ cessively . See

seriatim opinions

consideration seriatim under CONSIDERATION. Also termed sedately (seer-ee-dt-lee). seriatim opinions. See OPINION (1). series bonds. See BOND (3). series code. Patents & Trademarks. A numerical designa­ tion aSSigned to any ofa group ofapplications for patent or trademark registration filed in the U.S. Patent and Trademark Office.• The series code is part of an appli­ cation number and is followed by a slash. For example, if the application number is 09/445,323, then 09 is the series code, and the application is the 445,323rd appli­ cation in that batch. For ordinary patent applications, series codes are aSSigned for a group of applications filed during a particular period. Nonprovisional patent applications are aSSigned series codes from 01 to 10, depending on the period during which the application was filed. The series code for design applications is 29, for provisional applications 60, for ex parte reexamina­ tion proceedings 90, and for inter partes reexamination proceedings 95. For trademark applications, the series code usu. begins with numbers between 70 and 75. Also termed batch number. series rerum judicatarum (seer-d-eez or seer-eez reer-dm joo-di-ka-tor-dm). [Law Latin] Scots law. A succession of decisions deciding a particular principle, as a result of which a precedent has been established. serious, adj. 1. (Of conduct, opinions, etc.) weighty; important <serious violation of rules>. 2. (Of an injury, illness, accident, etc.) dangerous; potentially resulting in death or other severe consequences <serious bodily harm>. serious and willful misconduct. Workers' compensation. An intentional act performed with the knowledge that it is likely to result in serious injury or with a wanton and reckless disregard of its probable consequences. [Cases: Workers' Compensation (::=>774; 2093.J serious bodily harm. See serious bodily injury under INJURY.

serious bodily injury. See INJURY. serious crime. 1. See serious offense under OFFENSE (I). 2. See FELONY (1). serious felony. See FELONY. serious health condition. Under the Family and Medical Leave Act, an illness, injury, or physical or mental state that involves in-patient care or continuing treatment by a health care provider for several days .• Excluded from the definition are cosmetic treatments and minor illnesses that are not accompanied by medical compli­ cations. [Cases: Labor and Employment (;:=,)351(2). serious illness. Insurance. A disorder that permanently or materially impairs, or is likely to permanently or materially impair, the health of the insured or an insur­ ance applicant. [Cases: Insurance (::=> 3003(9).] seriously harmful behavior. See HARMFUL BEHAVIOR. serious misdemeanor. See MISDEMEANOR. serious offense. See OFFENSE (1).

1490

serjeant. I. See SERGEANT. 2. See SERJEANT-AT-LAW. serjeant-at-arms. See SERGEANT-AT-ARMS. serjeant-at-law. Hist. English law. A barrister of superior grade; one who had achieved the highest degree of the legal profession, having (until 1846) the exclusive privi­ lege of practicing in the Court of Common Pleas.• Every judge of the common-law courts was required to be a serjeant-at-law until the Judicature Act of 1873. The rank was gradually superseded by that of Queen's Counsel. - Often shortened to serjeant. - Also termed serjeant at the law; serjeant of the law; serjeant of the coif; serviens narrator. premier serjeant. The serjeant given the primary right of preaudience by royal letters patent. Also termed prime serjeant. See PREAUDIENCE. Serjeants' Inn. Hist. A bUilding on Chancery Lane, London, that housed the Order of Serjeants-at-Law. _ The building was sold and demolished in 1877. Until 1416, the Inn was called Faryndon's Inn or Faryndon Inn, after Robert Faryndon, who held the lease. Two other inns in the 15th and 16th centuries were also called Serjeants' Inn, one in Holborn (sometimes called Scroops's Inn) and one in Fleet Street. serjeanty (sahr-jdn-tee). Hist. A feudal lay tenure requir­ ing some form of personal service to the king .• The required service was not necessarily military. Many household officers of the Crown, even those as humble as bakers and cooks, held lands in serjeanty. - Also spelled sergeanty. Also termed sergeantry. grand serjeanty. Hist. Serjeanty requiring the tenant to perform a service relating to the country's defense .• The required service could be as great as fielding an army or as small as providing a fully equipped knight. Sometimes the service was ceremonial or honorary, such as carrying the king's banner or serving as an officer at the coronation. petit serjeanty (pet-ee). Hist. Serjeanty requiring only a minor service of small value, usu. with military sym­ bolism. _ Examples include presenting an arrow or an unstrung bow to the king. serment (sdr-m;}nt). Hist. An oath. serological test (seer-d-loj-d-bl). (1931) A blood examination to detect the presence of antibodies and antigens, as well as other characteristics, esp. as indica­ tors of disease .• Many states require serological tests to determine the presence ofvenereal disease in a couple applying for a marriage license. See BLOOD TEST. serpentine vote. See VOTE (4). serva aliena. See SERVUS. servage (sdr-vij). Hist. A feudal service that a serf was required to perform for the lord or else pay the equiva­ lent value in kind or money. servant. (l3e) A person who is employed by another to do work under the control and direction of the employer. • A servant, such as a full-time employee, provides personal services that are integral to an employer's business, so a servant must submit to the

servient property

1491

employer's control of the servant's time and behavior. See EMPLOYEE. Cf. MASTER (1). [Cases: Labor and Employment "A servant, strictly speaking, is a person who. by contract or operation of law, is for a limited period subject to the authority or control of another person in a particular trade. business or occupation .... The word servant, in our legal nomenclature, has a broad significance, and embraces all persons of whatever rank or pOSition who are in the employ. and subject to the direction or control of another in any department of labor or business. Indeed it may. in most cases, be said to be synonymous with employee." H.G. Wood, A Treatise on the Law of Master and Servant § 1, at 2 (2d ed. 1886).

fellow servant. See FELLOW SERVANT. indentured servant. Hist. A servant who contracted to work without wages for a fixed period in exchange for some benefit, such as learning a trade or cancellation of a debt or paid passage to another country, and the promise of freedom when the contract period expired. • Indentured servitude could be voluntary or invol­ untary. A contract usu.lasted from four to ten years, but the servant could terminate the contract sooner by paying for the unexpired time. Convicts trans­ ported to the colonies were often required to serve as indentured servants as part of their sentences. serve, vb. (ISc) 1. To make legal delivery of (a notice or process) . 2. To present (a person) with a notice or process as required by law . [Cases: Federal Civil Procedure C=>411; Process C=>48.j service, n. (ISc) 1. The formal delivery ofa writ, summons, or other legal process . - Also termed service of process. [Cases: Federal Civil Procedure (~'411-S18; Process C=>48-1S0.] 2. The formal delivery of some other legal notice, such as a pleading . [Cases: Federal Civil Procedure C=>66S.]

actual service. See PERSONAL SERVICE (1). constructive service. (1808) 1. See substituted service. 2. Service accomplished by a method or circumstance that does not give actual notice. personal service. See PERSONAL SERVICE (1). service by publication. (1826) The service of process on an absent or nonresident defendant by publish­ ing a notice in a newspaper or other public medium. [Cases: Federal Civil Procedure 414; Process C::=> 84-111.] sewer service. Slang. The fraudulent service of process on a debtor by a creditor seeking to obtain a default judgment. substituted service. (1840) Any method of service allowed by law in place of personal service, such as service by mail. - Also termed constructive service. [Cases: Federal Civil Procedure C=>414; Process 69-111.]

3. The act of doing something useful for a person or company, usu. for a fee . personal service. See PERSONAL SERVICE (2). 4. A person or company whose business is to do useful things for others . civil service. See CIVIL SERVICE.

salvage service. See SALVAGE SERVICE.

5. An intangible commodity in the form of human effort, such as labor, skill, or advice . [Cases: Contracts C=> 190.] service, vb. (1927) To provide service for; specif., to make interest payments on (a debt) <service the deficit>. service by publication. See SERVICE (2). service charge. 1. A charge assessed for performing a service, such as the charge assessed by a bank against the expenses of maintaining or servicing a customer's checking account. 2. lhe sum of (1) all charges payable by the buyer and imposed by the seller as an incident to the extension of credit and (2) charges incurred for investigating the collateral or creditworthiness of the buyer or for commissions for obtaining the credit. UCCC § 2.109. - Also termed (in sense 2) credit service charge. [Cases: Consumer Credit service contract. See CONTRACT. service establishment. Under the Fair Labor Standards Act, an establishment that, although haVing the char­ acteristics of a retail store, primarily furnishes services to the public, such as a barber shop, laundry, or auto­ mobile-repair shop. service life. The period of an asset's expected usefulness. • It mayor may not coincide with the asset's depre­ ciable life for income-tax purposes. servicemark. (1945) Trademarks. A name, phrase, or other device used to identify and distinguish the services of a certain provider. • Servicemarks identify and afford protection to intangible things such as services, as distinguished from the protection already provided for marks affixed to tangible things such as goods and products. - Often shortened to mark. Also spelled service mark; service-mark. Cf. TRADE­ MARK (1); registered trademark under TRADEMARK. [Cases: Trademarks C=> 1024.] servicemark application. See TRADEMARK APPLICA­ TION. service-occupation tax. See TAX. service of process. See SERVICE (1). serviens narrator (s. ­ Also termed (for a court) sitting. See TERM (5). "Parliament have three modes of separation, to wit, by adjournment, by prorogation, or dissolution by the king, or by the efflux of the term for which they were elected. Prorogation or dissolution constitutes there what is called a session, provided some act has passed. In this case all matters depending before them are discontinued, and at their next meeting are to be taken up de novo, if taken up at all. Adjournment, which is by themselves, is no more than a continuance of the session from one day to another,

1495 or for a fortnight, a month, &c. ad libitum. All matters depending remain in statu quo, and when they meet again, be the term ever so distant, are resumed without any fresh commencement. at the point at which they were left. Their whole session is considered in law but as one day, and has relation to the first day thereof." Thomas Jefferson, A Manual of Parliamentary Practice 127-28 (1801) (citations omitted).

biennial session. (1854) A legislative session held every two years .• Most state legislatures have biennial sessions, usu. held in odd-numbered years. lCases: States (;:::;c 32.] closed session. (1956) 1. See executive session. 2. A session to which parties not directly involved are not admitted. 3. Military law. A period during a court­ martial when the members (or the judge, if trial is before a military judge) deliberate alone. - Also termed closed court. [Cases: Military Justice 1222, 1270.] executive session. A meeting, usu. held in secret, that only the members and invited nonmembers may attend.• The term originated in the United States Senate, which until 1929 sat behind closed doors when it advised the President about executive business such as appointments and treaties. Also termed closed session; secret session. [Cases: Administrative Law and Procedure 124; Municipal Corporations "Virtually all open meeting statutes expressly authorize the use of executive sessions, typically specifying the particular circumstances in which executive sessions are permitted. When the specific circumstances are specified, generally no other exceptions are permitted .... Use of the executive session to discuss matters not properly hidden from the public is a clear violation of the open meeting law. Many states expressly or impliCitly forbid use of the executive session as a subterfuge to defeat the purposes of the open meeting law." Ann Taylor Schwing, Open Meeting Laws § 7.1, at 357, 359 (2d ed. 2000).

extraordinary session. See special session. extra session. See special session. joint session. (1853) The combined meeting oftwo leg­ islative bodies (such as the House of Representatives and the Senate) to pursue a common agenda. [Cases: United States (;:::=)18.] "When the two houses meet in a joint seSSion, they, in effect, merge into one house where the quorum is a majority of the members of both houses, where the votes of members of each house have equal weight, and where special rules can be adopted to govern joint sessions or they can be governed by the parliamentary common law." National Conference of State Legislatures, Mason's Manual of Legislative Procedure § 782, at 573 (2000).

lame-duck session. (1924) A post-election legislative session in which some of the participants are voting during their last days as elected officials. See LAME DUCK. [Cases: States (;:::;c32.] open session. (1810) 1. A session to which parties not directly involved are admitted. Also termed public session. 2. Military law. The period during a court-martial in which all participants are in the courtroom.• Generally, the public may attend a

set aside

court-martial's open session. [Cases: Military Justice C:::-1210.1, 1222.] plenary session. (1936) A meeting of all the members of a deliberative assembly, not just a committee. pro forma session. A legislative session held not to conduct business but only to satisfy a constitutional provision that neither house may adjourn for longer than a certain time (usu. three days) without the other house's consent. public session. See open session (1). quarter session. 1. English law. The meetings held four times a year by a county's justices of the peace to transact business, including trying certain criminal and civil matters as specified by statute .• The quarter sessions were abolished in 1971 and replaced by the Crown Court system. 2. Scots law. A meeting formerly held four times a year by the justices to review criminal sentences. - Abbr. Q.S. regular session. (18c) A session that takes place at fixed intervals or specified times. secret session. See executive session. special session. (17c) A legislative session, usu. called by the executive, that meets outside its regular term to consider a specific issue or to reduce backlog. Also termed extra session; extraordinary session. [Cases: States (;:::;c 32.] 2. The period within any given day during which such a body is assembled and performing its duties . - The terms "meeting" and "session" have opposite but sometimes interchangeable meanings. An organization's annual convention may consist of several consecutive meetings that it calls "sessions," such as a morning session and an afternoon session, or a Friday session and a Saturday session, which are technically meetings rather than sessions. Likewise, the organi­ zation may call its convention an "annual meeting," which technically comprises several meetings that con­ stitute a single session. Cf. .MEETI~G. 3. A trading day in a stock market. triple witching session. A stock-market session on the third Friday in March, June, September, and December during which stock options, index options and futures contracts all expire .• Stock-market vola­ tility and share volume are often high on these days session laws. (18c) 1. A body of statutes enacted by a leg­ islature during a particular annual or biennial session. 2. The softbound booklets containing these statutes. ­ Also termed acts ofassembly; blue books; sheet acts. sessions. See COURT OF GENERAL QUARTER SESSIONS OF THE PEACE.

set-aside, n. (1943) Something (such as a percentage of funds) that is reserved or put aside for a specific purpose. set aside, vb. (18c) (Of a court) to annul or vacate (a judgment, order, etc.) . [Cases: Federal Civil Procedure ~'='2441, 2641; Judgment 336.]

setback

setback, n. (1916) Real estate. The minimum amount of space required between a lot line and a building line . - Typically contained in zoning ordinances or deed restrictions, setbacks are designed to ensure that enough light and ventilation reach the property and to keep buildings from being erected too close to property lines. See BUSINESS LINE. [Cases: Zoning and Planning C--'-::>64, setback requirement. See BUILDING LINE. set down, vb. (18c) To schedule (a case) for trial or hearing, usu. by making a docket entry. se te fecerit securum (see tee fes-dr-it si-kyoor-dm). [Latin] See SI FECERIT TE SECURUM. set forth. See SET OUT. seti (set-ee). Mining law. A lease. set of exchange. Commercial law. A Single bill oflading drawn in a set of parts, each of which is valid only if the goods have not been delivered against any other part. _ Bills may be drawn in duplicate or triplicate, the first part being "first of exchange:' the second part being "second of exchange," and so on. When one part has been paid, the other parts become void. setoff, n. (I8c) 1. A defendant's counterdemand against the plaintiff, arising out of a transaction independent of the plaintiffs claim. [Cases: Federal Civil Procedure 2. A debtor's Set-offand Counterclaim right to reduce the amount of a debt by any sum the creditor owes the debtor; the counterbalancing sum owed by the creditor. - Also written set-off. - Also termed (in civil law) compensation; stoppage. See COUN­ TERCLAIM; OFFSET. Cf. RECOUPMENT (3). [Cases: Banks and Banking 0134; Set-off and Counterclaim 8.] 3. The balancing of mutual liabilities with respect to a pledge relationship. - set off, vb. "Set·off signifies the subtraction or taking away of one demand from another opposite or cross demand, so as to distinguish the smaller demand and reduce the greater by the amount of the less; or. if the opposite demands are equal, to extinguish both. It was also. formerly. sometimes called stoppage, because the amount to be set-off was stopped or deducted from the cross demand." Thomas W_ Waterman, A Treatise on the Law of Se t· Off. Recoupment, and Counter Claim § 1, at 1 (2d ed. 1872). "Before considering the counter·claim, a brief reference to 'the set· off' as known in former practice is necessary. By the common law, the setting off of one demand against another in the same action was unknown. If A had a cause of action in debt against B, and B had another cause of action in debt in equal amount against A. each must bring his action. One could not be set off against the other. ThiS was changed by statute in England in 1729, by a provi­ sion which. somewhat enlarged and modified. has been generally adopted in this country." Edwin E. Bryant, The LawofP!eading Under the Codes of Civil Procedure 250-51 (2d ed_ 1899). "Set·off is defined to be a counter-demand, generally of a liquidated debt growing out of an independent transaction for which an action might be maintained by the defendant against the plaintiff." Eugene A. Jones. Manual of Equity Pleading and Practice 65 n.42 (1916).

1496

set out, vb. (16c) To recite, explain, narrate, or incorpo­ rate (facts or circumstances) <set out the terms of the contract>. Also termed set forth. set over, vb. (16c) To transfer or convey (property) . setting, n. The date and time established by a court for a trial or hearing . [Cases: Federal Civil Procedure C=::" 1991; Trial 9.] special setting. (1916) A preferential setting on a court's calendar, usu. reserved for older cases or cases given priority by law. made either on a party's motion or on the court's own motion. - For example. some juris­ dictions authorize a special setting for cases involVing a party over the age of70. - Also termed speCial trial setting; trial-setting preference. [Cases: Trial (;::~) 13.] settled estate. See ESTATE (1). settled insanity. See DELIRIUM TREMENS. settled land. See LAND. settlement, n. (l7c) 1. The conveyance of property or of interests in property - to provide for one or more beneficiaries, usu. members of the settlor's family, in a way that differs from what the beneficiaries would receive as heirs under the statutes of descent and distri­ bution 484; Com­ promise and Settlement (;::::c-2, 5.J nuisance settlement. A settlement in which the defen­ dant pays the plaintiff purely for economic reasons as opposed to any notion ofresponsibility - because without the settlement the defendant would spend more money in legal fees and expenses caused by protracted litigation than in paying the settlement amount. - The money paid in such a settlement is often termed nuisance money. out-of-court settlement. The settlement and termina­ tion of a pending suit, arrived at without the court's participation. [Cases: Compromise and Settlement C:Jl.J structured settlement. A settlement in which the defen­ dant agrees to pay periodic sums to the plaintiff for a specified time.[Cases: Assignments (;::::c-62; Compro­ mise and Settlement (;::::c-2.] "EspeCially in personal injury and product liability cases, structl.lred settlements - Le., those which provide for an initial cash payment followed by deferred payments are in future years, normally on some annuity baSis becoming more frequent.... Such a structured settle­ ment may have advantages over a lump·sum cash payment. Deferred payments or arranged settlements may serve par· ticular purposes that a cash settlement could not reach, and there will be instances when a structured settlement will be in lieu of an all-cash settlement that would not be acceptable to one party or the other." Alba Conte, Attorney Fee Awards § 2.31, at 101 (1993).

3. Payment, satisfaction, or final adjustment . intestate share. The share that the renouncer of a will would take in the decedent's assets if the decedent had left no will affecting in any way the distribution of assets. [Cases: Wills (;::::>717.] 2. One of the definite number of equal parts into which the capital stock of a corporation or jOint-stock company is divided . • A share represents an equity or ownership interest in the corporation or joint-stock company. Cf. STOCK (4); SECURITY [Cases: Corporations C=>62; Joint Adventures American share. Securities. A share ofstock in a foreign corporation issued directly to U.S. investors through a transfer qualifying share. A share ofcommon stock purchased by someone in order to become a director of a corpo­ ration that requires its directors to be shareholders. share, vb. (16c) 1. To divide (something) into portions. 2. To enjoy or partake of (a power, right, etc.). share account. See share-draft account under ACCOUNT.

share acquisition. The acquisition of a corporation by purchaSing all or most of its outstanding shares

directly from the shareholders; TAKEOVER. Also termed share-acquisition transaction; stock acquisition; stock-acquisition transaction. Cf. ASSET ACQUISITION. [Cases: Corporations 197; Securities Regulation C=>262.1.] share and share alike. To divide (assets, etc.) in equal shares or proportions; to engage in per capita division. See PER CAPITA. share certificate. See STOCK CERTIFICATE. sharecropping. An agricultural arrangement in which a landowner leases land to a tenant who, in turn, gives the landlord a portion of the crop as rent. • The landlord usu. provides the seed, fertilizer, and ment. [Cases: Landlord and Tenant sharecropper, n. shared-appreciation mortgage. See MORTGAGE. shared custody. See joint custody under CUSTODY (2). shared-equity mortgage. See MORTGAGE. shared parenting. See PARENTING. share draft. See DRAFT. share-draft account. See ACCOUNT. shared residency. See joint physical custody under CUSTODY.

shareholder. (1832) One who owns or holds a share or shares in a company, esp. a corporation. Also termed shareowner; (in a corporation) stockholder. [Cases: Cor­ porations C=> 170.] controlling shareholder. A shareholder who can influ­ ence the corporation's activities because the share­ holder either owns a majority of outstanding shares or owns a smaller percentage but a Significant number of the remaining shares are widely distributed among many others. [Cases: Corporations dummy shareholder. A shareholder who owns stock in name only for the benefit of the true owner, whose identity is usu. concealed. interested shareholder. A person who owns enough of a corporation's stock to affect corporate decision­ making, usu. at least 15-20% of the corporation's outstanding stock. Also termed interested stock­ holder. majority shareholder. A shareholder who owns or controls more than half the corporation's stock. 182.3.J [Cases: Corporations minority shareholder. A shareholder who owns less than half the total shares outstanding and thus cannot control the corporation's management or singlehandedly elect directors. Corporations C=>182.3.] shareholder-control agreement. See POOLING AGREE­ MENT.

shareholder derivative suit. See

DERIVATIVE ACTION

(1).

shareholder oppression. See OPPRESSION (4).

shelter doctrine

1501

shareholder proposal. A proposal by one or more cor­ porate stockholders to change company policy or procedure.• Ordinarily, the corporation informs all stockholders about the proposal before the next share­ holder meeting. shareholder resolution. See RESOLUTION (2). shareholders' equity. See OWNERS' EQUITY. shareholder's liability. See LIABILITY. shareholders' scheme of arrangement. See SCHEME OF ARRANGEMENT.

shareholder voting agreement. See

POOLING AGREE­

MENT.

shareowner. See SHAREHOLDER. shares outstanding. See outstanding stock under STOCK. share split. See STOCK SPLIT. shareware. Software that can be redistributed but not modified and requires all users to pay a license fee.• The license fee applies to both originals and distributed copies. Cf. FREEWARE; PROPRIETARY SOFTWARE; SEMI­ FREE SOFTWARE.

share-warrant to bearer. A warrant providing that the bearer is entitled to a certain amount of fully paid stock shares.• Delivery of the warrant operates as a transfer of the shares of stock. Sharia (sh 1.] deputy sheriff. An officer who, acting under the direc­ tion of a sheriff, may perform most of the duties of the sheriff's office .• Although undersheriffis broadly synonymous with deputy sheriff, writers have some­ times distinguished between the two, suggesting that a deputy is appointed for a special occasion or purpose, while an undersheriff is permanent. - Also termed undersheriff; general deputy; Vice-sheriff [Cases: Sheriffs and Constables (::::> 16.] 2. Scots law. The chief judge at the county level, with limited criminal and unlimited civil jurisdiction.• A sheriff may not hear cases ofmurder or of some minor offenses. In medieval times, the sheriff was the king's representative in the shires, haVing military, adminis­ trative, and judicial functions. The office was hereditary until the Heritable Jurisdictions Act of 1746. sheriff derk. Scots law. The clerk of a sheriff's court. sheriff-depute. Hist. Scots law. The qualified judge of a district or county, acting for the titular, unqualified sheriff. sheriff principal. Scots law. The chief judge of a sheriff­ dom comprising one or more counties. sheriff's court. See COURT. sheriff's deed. See DEED. sheriff's jury. See JURY. sheriff's sale. See SALE. Sherman Antitrust Act. A federal statute, passed in 1890, that prohibits direct or indirect interference with the freely competitive interstate production and distribu­ tion of goods.• This Act was amended by the Clayton Often shortened to Act in 1914. 15 USCA §§ 1-7.

1502

Sherman Act. - Also termed the Antitrust Law. ICases: Antitrust and Trade Regulation Sherman-Sorrells doctrine. (1998) The principle that a defendant may claim as an affirmative defense that he or she was not disposed to commit the offense until a public official (often an undercover police officer) encouraged the defendant to do so.• This entrapment defense, which is recognized in the federal system and a majority ofstates, was developed in Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819 (1958), and Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210 (1932). ­ Also termed subjective method. See ENTRAPME:-IT. Cf. HYPOTHETICAL-PERSON DEFENSE. [Cases: Criminal Law(;:::> 37.] shield law. (1971) 1. A statute that affords journalists the privilege not to reveal confidential sources. See journal­ ist's privilege under PRIVILEGE (3). ICases: PriVileged Communications and Confidentiality "More than half of the states have 'shield laws' creating 'reporters' privileges' that are sometimes broader than the First Amendment version of that privilege." David A. Anderson, Freedom of the Press, 80 Texas L. Rev. 429, 432 (2002).

2. A statute that restricts or prohibits the use, in rape or sexual-assault cases, of evidence about the victim's past sexual conduct. - Also termed (in sense 2) rape shield law; rape shield statute. [Cases: Rape (::::>40(1)-40(5).] "The 'rape shield law.' At common law the character of the woman as to chastity or unchastity was held to be admissible in evidence on the theory that it had probative value in determining whether she did or did not consent. Defense counsel, in unrestrained zeal for an acquittal, took advantage of this to the point that it often seemed as if it was the victim of the rape, rather than the perpetrator, who was on trial. ... A typical 'rape shield statute' does not prevent the introduction of any relevant and otherwise admissible evidence, but requires that the relevancy of any evidence of the previous sexual conduct of the complaining witness must be determined in a pretrial hearing before the judge in camera." Rollin M. Perkins & Ronald N. Boyce, Criminal Law 206 (3d ed. 1982).

shifting, ad). (1874) (Of a position, place, etc.) changing or passing from one to another . shifting clause. (1813) At common law, a clause under the Statute of Uses prescribing a substituted mode of devolution in the settlement of an estate. See STATUTE OF USES.

shifting executory interest. See EXECUTORY INTEREST. shifting ground. Patents. The broadening of a patent application in an amendment by claiming a feature of the invention that was disclosed but not claimed in the original application. [Cases: Patents (::::> 109.] shifting inheritance. See INHERITANCE. shifting risk. See RISK. shifting stock of merchandise. Merchandise inventory subject to change by purchases and sales in the course of trade. shifting the burden of proof. (l805) In litigation, the transference ofthe duty to prove a fact from one party to the other; the passing of the duty to produce evidence

1503

ship's papers

in a case from one side to another as the case progresses, when one side has made a prima facie showing on a point ofevidence, requiring the other side to rebut it by contradictory evidence. See BURDEN OF PROOF. [Cases: Criminal Law 0=>327; Evidence C=>94.] shifting trust. See TRUST. shifting use. See USE (4). shill. 1. A person who poses as an innocent bystander at a confidence game but actually serves as a decoy for the perpetrators of the scheme. 2. BY-BIDDER. - shill, vb. shilling, n. 1. The practice of fraudulently bidding on items at an auction solely to drive up the price .• The seller might collude with another person to bid or might act alone and anonymously. Cf. BIDDING UP; BY-BIDDING. [Cases: Auctions and Auctioneers 0=>7.J 2. Rist. An English coin equal to 12 pence or 1I20th of a pound.• Shillings were revalued as five pence and phased out when decimalization was adopted in the early 1970s. The modern five-pence coin, like its pre­ decessor equal to 1/20th of a pound, is sometimes nos­ talgically referred to as a shilling. shingle. A small, usu. dignified sign that marks the office door of a lawyer or other professional. shingle theory. Securities. The notion that a broker-dealer must be held to a high standard of conduct because by engaging in the securities business ("hanging out a shingle"), the broker-dealer implicitly represents to the world that the conduct of all its employees will be fair and meet professional norms. [Cases: Securities Regulation C-=>27.21, 60.32(1).] "[lIn judging the appropriate standard of care that attaches to a broker-dealer in recommending securities to his or her customers and in dealing with the customers' accounts, the Commission has relied upon the 'shingle theory.' The shingle theory is but an extension of the common law doctrine of 'holding out.' When brokers hold themselves out as experts either in investments in general or in the securities of a particular issuer, they will be held to a higher standard of care in making recommendations." Thomas Lee Hazen, The Law of Securities Regulation § 10.6, at 423 (2d ed. 1994).

shin plaster. Hist. Slang. 1. A bank note that has greatly depreciated in value; esp., the paper money of the Republic ofTexas in relation to the u.s. dollar. 2. Paper money in denominations less than one dollar. ship, n. A type of vessel used or intended to be used in navigation. See VESSEL. [Cases: Shipping C:-;::> L] chartered ship. 1. A ship specially hired to transport the goods of only one person or company. [Cases: Shipping 0=> 34-58.] 2. A ship on which a shipper has chartered space for a cargo. general ship. A ship that is set for a particular voyage to carry the goods of any persons willing to ship goods on it for that voyage. ship, vb. To send (goods, documents, etc.) from one place to another, esp. by delivery to a carrier for transporta­ tion. ship broker. Maritime law. 1. The business agent of a shipowner or charterer; an intermediary between an

owner or charterer and a shipper. 2. One who negoti­ ates the purchase and sale of a ship. ship channel. Maritime law. The part of a navigable body of water where the water is deep enough for large vessels to travel safely. [Cases: Collision 0=>89; Navi­ gable Waters C:> 1(5).] shipmaster. See MASTER OF A SHIP. shipment. 1. The transportation of goods; esp., the delivery of goods to a carrier and subsequent issuance of a bill oflading. 2. The goods so shipped; an order of goods. shipment contract. See CONTRACT. Ship Mortgage Act. A federal law regulating mortgages on ships registered as U.S. vessels by, among other things, proViding for enforcement of maritime liens in favor of those who furnish supplies or maintenance to the vessels. 46 USCA §§ 30101, 31301-43. [Cases: Shipping C-:::>32.J shipowner-negligence doctrine. The principle that a shipowner is liable for an assault on a crew member if the crew member was assaulted by a superior, during an activity undertaken for the benefit of the ship's business, and ifthe ship's officers could reasonably have foreseen the assault. [Cases: Seamen 0=>29(3).] shipper. 1. One who ships goods to another. 2. One who contracts with a carrier for the transportation of cargo. • As a legal term of art, the shipper may not be the person who owns the cargo, but an agent or an inde­ pendent contractor. Cf. CARRIER (1). [Cases: Carriers (.."--:::>3.J shipping articles. Maritime law. A document (provided by a master of a vessel to the mariners) detailing voyage information, such as the voyage term, the number of crew, and the wage rates. 46 USCA § 10302. [Cases: Seamen C:-:>7.] shipping commissioner. An officer, appointed by the secretary of the treasury, who is posted at a port of entry, and vested with general supervisory authority over seamen's contracts and welfare.• In 1993, the term was changed to "master or individual in charge." See Pub. L. 103-206 § 403. [Cases: Seamen shipping document. Any paper that covers a shipment in trade, such as a bill oflading or letter of credit. [Cases: Carriers (.."--:::>46-68; Shipping 0=>] 06.] shipping law. See LAW OF SHIPPING. shipping order. A copy of the shipper's instructions to a carrier regarding the disposition of goods to be trans­ ported. [Cases: Carriers C=;'61.] ship's husband. Maritime law. A person appointed to act as general agent of all the coowners of a ship, as by contracting for all necessary services, equipment, and supplies. Cf. EXERCITOR. [Cases: Maritime Liens 28; Seamen 0=>22; Shipping C:-'::>74.] ship's papers. Maritime law. The papers that a vessel is required to carry to provide the primary evidence of the ship's national character, ownership, nature and

shipwreck

destination of cargo, and compliance with navigation laws.•These papers includes certificates of health, charter-party, muster-rolls, licenses, and bills oflading. [Cases: Shipping C=>5.] shipwreck. Maritime law. 1. A ship's wreckage. [Cases: Shipping C=>212.] 2. The injury or destruction of a vessel because of circumstances beyond the owner's control, rendering the vessel incapable of carrying out its mission. "There are two kinds of shipwreck: (1.) When the vessel sinks or is dashed to pieces. (2.) When she is stranded, which is, when she grounds and fills with water. The latter may terminate in shipwreck, or may not, and it depends on circumstances whether it will or will not justify an abandon­ ment." 4 James Kent, Commentaries on American Law *323 n.(b) (George Comstock ed., 11th ed. 1866).

shire. A county in Great Britain (esp. England), origi­ nally made up of many hundreds but later consisting oflarger divisions set offby metes and bounds. shire-gerefa. See shire-reeve under REEVE. shire-reeve. See REEVE. Shively presumption (shIv-lee). The doctrine that any prestatehood grant of public property does not include tidelands unless the grant specifically indicates other­ wise. Shively v. Bowlby, 152 U.S. 1, 14 S.Ct. 548 (1894); United States v. Holt State Bank, 270 U.S. 49, 46 S.Ct. 197 (1925). See EQUAL-FOOTING DOCTRINE. [Cases: Navigable Waters C=>36(1).] shock, n. A profound and sudden disturbance of the physical or mental senses; a sudden and violent physical or mental impression depressing the body's vital forces, as by a sudden injury or medical procedure. mental shock. Shock caused by agitation of the mental senses and resulting in extreme grief or joy, as by witnessing the horrific death of a family member or winning the lottery. Cf. EMOTIONAL DISTRESS. physical shock. Shock caused by agitation of the physical senses, as from a sudden violent blow, impact, collision, or concussion. shock incarceration. See INCARCERATION. shock probation. See PROBATION. shock the conscience. To cause intense ethical or humanitarian discomfort. • This phrase is used as an equitable standard for gauging whether (1) state action amounts to a violation of a person's substantive-due­ process rights, (2) a jury's award is excessive, (3) a fine, jail term, or other penalty is disproportionate to the crime, or (4) a contract is unconscionable. See CON­ SCIENCE OF THE COURT (2). [Cases: Appeal and Error C=> 1004(5); Constitutional Law C=> 3896; Contracts C:-.~1; Damages C=>127.1-127.3; New Trial C=>76.] shop, n. (l3c) A business establishment or place of employment; a factory, office, or other place of business. agency shop. A shop in which a union acts as an agent for the employees, regardless of their union mem­ bership.• Nonunion members must pay union dues

1504

because it is presumed that any collective bargaining will benefit nonunion as well as union members. closed nonunion shop. A shop in which the employer restricts employment to workers who are unaffiliated with any labor union. closed shop. A shop in which the employer, by agree­ ment with a union, employs only union members in good standing .• Closed shops were made illegal under the federal Labor-Management Relations Act. - Also termed closed union shop. See PREHIRE AGREEMENT. Cf. closed union under UNION. [Cases: Labor and Employment C=> 1264.] open closed shop. A shop in which the employer hires nonunion workers on the understanding that they will become union members within a specified period. - Also termed open shop. [Cases: Labor and Employment C=> 1264.] open shop. 1. A shop in which the employer hires workers without regard to union affiliation. See RIGHT-TO-WORK LAW. Cf. open union under UNION. 2. See open closed shop. preferential nonunion shop. A shop in which nonunion members are given preference over main members in employment matters. preferential shop. See preferential union shop. preferential union shop. A shop in which union members are given preference over nonunion members in employment matters. - Also termed preferential shop. union shop. A shop in which the employer may hire nonunion employees on the condition that they join a union within a specified time (usu. at least 30 days). shop-book rule. (1898) Evidence. An exception to the hearsay rule permitting the admission into evidence of original bookkeeping records if the books' entries were made in the ordinary course of business and the books are authenticated by somebody who maintains them. [Cases: Criminal Law C=>436(2); Evidence C=> 354.] shop books. (17c) Records of original entry maintained in the usual course of business by a shopkeeper, trader, or other businessperson. - Also termed books of account; account books. shop committee. A union committee that resolves employee complaints within a union shop. See union shop under SHOP. shoplifting, n. (17c) Theft of merchandise from a store or business; specif., larceny of goods from a store or other commercial establishment by willfully taking and concealing the merchandise with the intention of con­ verting the goods to one's personal use without paying the purchase price. See LARCENY. [Cases: Larceny C=> 1.] - shoplift, vb. "Shoplifting is a form of larceny .... As a practical matter, however, the difficulty of proving the wrongful taking and the felonious intent requisites for a conviction under the general larceny statutes, together with the risk of retribu­ tory civil action against the shopkeeper consequent to

1505 acquittal of an accused shoplifter, have caused shoplifting to be established as a specific statutory crime in many juris· dictions." 50 Am. Jur. 2d Larcenv § 71, at 79-80 (1995).

shop right. (1879) Patents. An employer's right to an irrevocable, nonassignable, nonexclusive, royalty-free license in an employee's invention, ifthe employee con­ ceived and developed the invention during the course ofemployment and used company funds and materials. - The term derives from the idea that the right belongs to the shop, not to the employee. Employment contracts frequently contain patent-assignment clauses, but the employer is entitled to the license even ifthe employee retains the patent. If the employee or consultant was hired to invent, then the employer owns the result­ ing inventions. If an employee develops an invention independently, the employee is its sole owner. But if an employees uses the employer's resources to make the invention, courts use the shop-right doctrine to order the employee to compensate the employer. [Cases: Labor and Employment (;'=:>308.] shop steward. See STEWARD (2). shore. (14c) 1. Land lying between the lines of high­ and low-water mark; lands bordering on the shores of navigable waters below the line of ordinary high water. [Cases: Navigable WatersC='36(3); Waters and Water Courses (> 90.] 2. Land adjacent to a body of water regardless of whether it is below or above the ordinary Also termed shore land. high- or low-water mark. [Cases: Navigable Waters 18, 33, 41; Waters and Water Courses (;'=:>90-96.] short, adj. 1. Not holding at the time of sale the security or commodity that is being sold in anticipation of a fall in price . See short sale under SALE. short, vb. To sell (a security or commodity) by a short sale <shorted 1,000 shares of Pantheon stock>. See short sale under SALE. [Cases: Securities Regulation short cause. See CAUSE (J). short-cause calendar. See CALENDAR (2). short-cause trial. See short cause under CAUSE (3). shortened statutory period. Patents. An amount of time less than 6 months, but not less than 30 days, given in certain circumstances to a patent applicant to respond to an office action. _ The period for most responses can be extended up to the statutory period of 6 months. MPEP 710.02. [Cases: Patents (;'=:> 104.] shorter-term rule. See RULE OF THE SHORTER TERM. short-form agreement. Labor law. A contract usu. entered into by a small independent contractor whereby the contractor agrees to be bound by a collective-bar­ gaining agreement negotiated between a union and a multiemployer bargaining unit.

short-form bill oflading. See BILL OF LADING. short-form merger. See MERGER. short interest. Securities. In a short sale, the number of shares that have not been purchased for return to lenders. See short sale under SALE. short lease. See LEASE. short notice. See NOTICE. short position. The position of an investor who borrowed stock to make a short sale but has not yet purchased the stock to repay the lender. See short sale under SALE. short sale. See SALE. short sale against the box. See SALE. short-shipped, adj. Commercial law. Partially filled; con­ taining fewer units than requested or paid for. [Cases: Shipping (;'=:> 116.] short summons. See SUMMONS. short-swing profits. Profits made by a corporate insider on the purchase and sale (or sale and purchase) of company stock within a six-month period. - These profits are subject to being returned to the company. [Cases: Securities Regulation (;'=:>53.10-53.22.J short-term alimony. See rehabilitative alimony under ALIMONY.

short-term capital gain. See CAPITAL GAIN. short-term debt. 1. See DEBT. 2. See current liability under LIABILITY. short-term loan. See LOAN. short-term security. See SECURITY. short-term trading. See TRADING. short-term trust. See Clifford trust under TRlJST. short title. See TITLE (3). short ton. See TON. shotgun instruction. See ALLEN CHARGE. shotgun pleading. See PLEADING (I). shotgun rejection. See REJECTION. show, vb. (I2c) To make (facts, etc.) apparent or clear by evidence; to prove. show cause. To produce a satisfactory explanation or excuse, usu. in connection with a motion or applica­ tion to a court. [Cases: Motions (;'=:>24.] show-cause motion. See MOTION. show-canse order. See ORDER (2). show-cause proceeding. (1922) A usu. expedited pro­ ceeding on a show-cause order. - Also termed rule to show cause; summary process; summary procedure; expedited proceeding. show-cause rule. See show-cause order under ORDER (2).

shower (shoh-ilr), n. A person commissioned by a court to take jurors to a place so that they may observe it as they consider a case on which they are sitting. See VIEW (3). [Cases: Criminal Law (;'=:>651; Trial C~::;)28.1

showing

showing, n. (1857) The act or an instance of establish­ ing through evidence and argument; proof . show of hands. See vote by show ofhands under VOTE (4).

show-stopper. Corporations. An antitakeover tactic by which the company seeks an injunction barring the takeover usu. because the proposed merger violates antitrust laws. show trial. (1937) A trial, usu. in a nondemocratic country, that is staged primarily for propagandistic purposes, with the outcome predetermined. showup, n. (1929) A pretrial identification procedure in which a suspect is confronted with a witness to or the victim of a crime. - Unlike a lineup, a showup is a one­ on-one confrontation. Cf. LINEUP. [Cases: Criminal LawC~~339.8(5, 6).] shrinkage. (1961) The reduction in inventory caused by theft, breakage, or waste. shrink-wrap license. See LICENSE. SHU. abbr. SPECIAL HOUSING UNIT. shutdown. (1884) A cessation of work production, esp. in a factory. shut-in royalty. See ROYALTY (2). shut-in royalty clause. Oil & gas. A provision in an oil­ and-gas lease allowing the lessee to maintain the lease while there is no production from the property because wells capable of production are shut in. - The lessee pays the lessor a shut-in royalty in lieu of production. [Cases: Mines and Minerals C:::">78.1(3).] shuttle diplomacy. See DIPLOMACY. shyster (Shls-t;)r). (1843) A person (esp. a lawyer) whose business affairs are unscrupulous, deceitful, or unethi­ caL

1506 Within the household composed of a father and children there was no degree; this household was regarded for this purpose as a unit, and only when, in default of children, the inheritance fell to remoter kinsmen, was there any need to count the grades of 'sibship.' Thus first cousins are in the first degree of sibship; second cousins in the second." 2 Frederick Pollock & Frederic William Maitland, History of English Law Before the Time of Edward I 386 (2d ed. 1899).

2. A group of blood relatives; kindred. sic (sik). [Latin "so, thus"] (1859) Spelled or used as written. - Sic, invariably bracketed and usu. set in italics, is used to indicate that a preceding word or phrase in a quoted passage is reproduced as it appeared in the original document . sick leave. 1. An employment benefit allowing a worker time off for sickness, either with or without pay, but without loss ofseniority or other benefits. [Cases: Labor and Employment C:::"> 182.] 2. The time so taken by an employee. sickness and accident insurance. See health insurance under INSURANCE. si constet de persona (51 kon-stet dee p;)r-soh-na). [Latin] If it is certain who is the person meant. si contingat (Sl kon-ting-at). [Law Latin] If it happens. _ This term was formerly used to describe conditions in a conveyance. sicut alias (sl-kat ay-lee-;)s), n. [Latin "as at another time"] Hist. A second writ issued when the first one was not executed. "But where a defendant absconds, and the plaintiff would proceed to an outlawry against him, an original writ must then be sued out regularly, and after that a capias. And if the sheriff cannot find the defendant upon the first writ ... there issues out an alias writ, and after that a pluries, to the same effect as the former: only after these words 'we command you,' this clause is inserted, 'as we have formerly,' or, 'as we have often commanded you;' 'sicut alias' ...." 3 William Blackstone, Commentaries on the

si actio (SI ak-shee-oh), n. [Latin] Hist. The closing state- , ment in a defendant's plea demanding judgment. Laws of Eng/and 283 (1768). si aliquid sapit (SI al-i-kwid say-pit). [Law Latin] Hist. If sicut me Deus adjuvet (sik-;)t mee dee-;)s aj-;)-vet). he knows anything. [Latin] So help me God. si antecedit ictum licet non congressum (SI an-ti-see­ side, n. (l3c) 1. The position of a person or group dit ik-t;)m II-set non bn-gres-am). [Law Latin] Hist. If opposing another . 2. Either it precedes the blow, although not actually connected of two parties in a transaction or dispute <each side with it. • The phrase appeared in reference to the malice put on a strong case>. 3. Archaic. The field of a court's sufficient to warrant a capital murder conviction. jurisdiction <equity side> . 4. Property. In a SIB. abbr. 1. Securities and Investment Board. See FINAN­ description of more or less rectangularly shaped land, CIAL SERVICES AGENCY. 2. See survivor-income benefit either of the two long boundary lines. plan under EMPLOYEE BENEFIT PLAN. side agreement. See AGREEMENT. sib; imputet (sib-I im-py;)-tet). [Latin] Hist. Let it be sidebar. (1856) 1. A position at the side of a judge's imputed to himself. bench where counsel can confer with the judge sibi invigilare (sib-I in-vij-;)-lair-ee). [Latin] Hist. To beyond the jury's earshot . 2. SIDEBAR CONFERENCE . 3. A short, secondary article within sibship. 1. The quality or state of being a blood relative, or accompanying a main story in a publication . 4. "[Tlhe ancient Germans knew yet another calculus of kinship, which was bound up with their law of inheritance. SIDEBAR COMMENT.

sidebar comment. (1922) An unnecessary, often argu­ mentative remark made by an attorney or witness, esp. during a trial or deposition . - Often shortened to sidebar. Also termed sidebar remark. [Cases: Trial (;::> lB.] sidebar conference. (1925) 1. A discussion among the judge and counsel, usu. over an evidentiary objection, outside the jury's hearing. - Also termed bench con­ ference. [Cases: Trial 18,50.] 2. A discussion, esp. during voir dire, between the judge and a juror or pro­ spective juror. - Often shortened to sidebar. sidebar remark. See SIDEBAR COMMENT. sidebar ru1e. Hist. English law. An order or rule allowed by the court without formal application, such as an order to plead within a particular time.• Formerly, the rules or orders were made on the motion of the attorneys at the sidebar in court. side judge. See JUDGE. side lines. L The margins ofsomething, such as property. 2. A different type of business or goods than one prin­ cipally engages in or sells. 3. Mining law. The boundary lines of a mining claim not crossing the vein running on each side of it. - Also written sidelines. Cf. END LINES. [Cases: Mines and Minerals (;::> 18.J sidenote. See MARGINAL NOTE. s; deprehendatur (SI dep-ri-hen-day-t 133, 151.] signature crime. See CRIME. signature evidence. See EVIDENCE. signature loan. See LOAN. signed, sealed, and delivered. (l7c) In a certificate of acknowledgment, a statement that the instrument was executed by the person acknowledging it. - Often shortened to sealed and delivered. [Cases: Acknowl­ edgment (::::>29.] signed writing. See WRITING. signet. 1. Civil law. An elaborate hand-drawn symbol (usu. incorporating a cross and the notary's initials) formerly placed at the base of notarial instruments, later replaced by a seal. 2. Scots law. A seal used to authenticate summonses in civil matters before the Court of Session .• Originally, this was the monarch's personal seal. Cf. WRITER TO THE SIGNET.

1508

significant-connection jurisdiction. See

JURISDIC­

TION.

significant-connection/substantial-evidence juris­ diction. See significant-connection jurisdiction under JURISDICTION.

significant-relationship theory. See CENTER-OF-GRAV­ ITY DOCTRINE.

significavit (sig-ni-fi-kay-vit), n. [Latin "he has signi­ fied"] Eccles. law. 1. A bishop's certificate that a person has been in a state of excommunication for more than 40 days. 2. A notice to the Crown in chancery, based on the bishop's certificate, whereby a writ de contumace capiendo (or, earlier, a writ de excommunicato capiendo) would issue for the disobedient person's arrest and imprisonment. See DE CONTUMACE CAPIENDO. sign manual. 1. See SIGNATURE (1). 2. A symbol or emblem, such as a trademark, representing words or an idea, signum (sig-n5; Wills (;::)596.]3. (Of a contract) not made under seal. [Cases: Contracts ~~36.] simple agreement. See AGREEMENT. simple assault. 1. See ASSAULT (1). 2. See ASSAULT (2).

simple average. See particular average under AVERAGE.

simple battery. See BATTERY.

simple blockade. See BLOCKADE.

simple bond. See BOND (2).

simple contract. 1. See informal contract (1) under CON­ TRACT. 2. See parol contract (2) under CONTRACT. simple-contract debt. See DEBT. simple interest. See INTEREST (3). simple kidnapping. See KIDNAPPING. simple larceny. See LARCENY. simple listing. See open listing under LISTING (1). simple majority. See MAJORITY. simple mortgage clause. See open mortgage clause under MORTGAGE CLAUSE. simple negligence. See inadvertent negligence under NEGLIGENCE. simple obligation. See OBLIGATION. SIMPLE plan. See EMPLOYEE BENEFIT PLAN. simple reduction. Scots law. A court's temporary ruling that a document is of no effect until it is produced in court. simple resolution. See RESOLUTION (1). simple robbery. See ROBBERY. simple state. See unitary state under STATE. simple-tool rule. The principle that an employer has no duty to warn its employees of dangers that are obvious to everyone involved, and has no duty to inspect a tool that is within the exclusive control of an employee when that employee is fully acquainted with the tool's con­ dition. simple trust. 1. See mandatory trust under TRUST. 2. See passive trust under TRUST. simplex (sim-pleks), adj. [Latin] Simple; pure; uncon­ ditional. simplex dictum. See DICTUM. simplex passagium (sim-pleks p;J-say-jee-;Jm). [Law Latin] Hist. Simple passage (to the holy land alone).• This type ofpilgrimage served as an excuse for absence from court during the Crusades. - Also termed simplex peregrinatio. Cf. IN GENERALI PASSAGIO. simpliciter (sim-plis-i-t;Jr), adv. [Latin] (16c) 1. In a simple or summary manner; simply. 2. Absolutely; unconditionally; per se. simplified employee pension plan. See EMPLOYEE BENEFIT PLAN. simplum (sim-pl;Jm), n. [Latin] Roman law. The single value of something. Cf. DUPLUM. simulated contract. See CONTRACT. simulated fact. See FACT. simulated judgment. See JUDGMENT. simulated sale. See SALE.

simulated transaction. See simulated sale under SALE.

simulatio latens (sim-y;J-Iay-shee-oh lay-tenz). [Latin "hidden pretence"] Hist. Feigned enhancement of illness, as when symptoms are present but not nearly as severe as is pretended. simulation. 1. An assumption of an appearance that is feigned, false, or deceptive. 2. Civil law. A feigned, pre­ tended act, usu. to mislead or deceive. 3. See simulated contract under CONTRACT. simul cum (sl-m;JI bm). [Latin] Together with.• This phrase was formerly used in an indictment or other instrument to indicate that a defendant had committed an injury jointly with others unknown. simul et semel (sl-m;JI et sem-. 2. Consist­ ing ofone alone; individual <Single condition> <single beneficiary>. single-act statute. See LONG-ARM STATUTE. single adultery. See ADULTERY. single-asset real estate. Bankruptcy. A single piece of real property (apart from residential property with fewer than four residential units) that a debtor operates for business purposes, that provides the debtor with sub­ stantially all his or her gross income, and that carries aggregate, liquidated, noncontingent secured debts of $4 million or less. 11 USCA § 101(51B). [Cases: Bank­ ruptcy02021.1.] single bill. See bill Single under BILL (7). single bond. See bill obligatory under BILL (7). single combat. See DUEL (2). single condition. See CONDITION (2). Single-controversy doctrine. See ENTIRE-CONTROVERSY DOCTRINE. single-country fund. See MUTUAL FUND. single creditor. See CREDITOR. single-criminal-intent doctrine. See SINGLE-tARCENY DOCTRINE. single-date-of-removal doctrine. Civil procedure. The principle that the deadline for removing a case from

i

state court to federal court is 30 days from the day that any defendant receives a copy of the state-court pleading on which the removal is based. - If a later­ served defendant seeks to remove a case to federal court more than 30 days after the day any other defendant received the pleading, the removal is untimely even if effectuated within 30 days after the removing defen­ dant received the pleading. One theory underlying this doctrine is that all defendants must consent to remove a case to federal court, and a defendant who has waited longer than 30 days to remove does not have the capacity to consent to removal. 28 USCA § 1446(b). See NOTICE OF REMOVAL ICases: Removal ofCases (,~ 79(1).] single demise. See DEMISE. single-element means claim. See single-means claim under PATENT CtAIM. Single-entry bookkeeping. See BOOKKEEPING. single-filing rule. Civil-rights law. The principle that an administrative charge filed by one plaintiff in a civil­ rights suit (esp. a Title VII suit) will satisfy the admin­ istrative-filing requirements for all coplaintiffs who are making claims for the same act ofdiscrimination. - But this rule will not usu. protect a coplaintiff's claims ifthe coplaintiff also filed an administrative charge, against the same employer, in which different discriminatory acts were complained of, because the administrative agency (usu. the EEOC) and the employer are entitled to rely on the allegations someone makes in an admin­ istrative charge. [Cases: Civil Rights C= 1517.] single-impulse plan. See SINGLE-LARCENY DOCTRINE. single-juror instruction. See lURY INSTRUCTION. single-larceny doctrine. (1969) Criminal law. The prin­ ciple that the taking of different items of property belonging to either the same or different owners at the same time and place constitutes one act oflarceny if the theft is part of one larcenous plan, as when it involves essentially one continuous act or if control over the property is exercised Simultaneously. - The thief's intent determines the number of occurrences. Also termed single-impulse plan; single-larceny rule; single­ criminal-intent doctrine. [Cases: Larceny (;=:) 1.] single-means claim. See PATENT CtAIM. single-name paper. A negotiable instrument signed by only one maker and not backed by a surety. single obligation. See OBUGATJON. single ordeal. See ORDEAL. single original. (1815) An instrument executed singly, not in duplicate. single-paragraph form. Patents. A style ofwriting patent claims that uses a colon after the introductory phrase and a semicolon between each element. Cf. COLON­ SEMICOLON FORM; OUTLINE FORM; SUBPARAGRAPH FORM. single-premium deferred annuity. See ANNUITY.

single-premium insurance

single-premium insurance. See single-premium life insurance under LIFE INSURANCE. single-premium life insurance. See LIFE INSURANCE. single-publication rule. The doctrine that a plaintiff in a libel suit against a publisher has only one claim for each mass publication, not a claim for every book or issue in that run. [Cases: Libel and Slander ~26.] single-purpose project. A facility that is designed, built, and used for one reason only, such as to generate elec­ tricity.• This term most often refers to large, complex, expensive projects such as power plants, chemical-pro­ cessing plants, mines, and toll roads. Projects of this type are often funded through project financing, in which a special-purpose entity is established to perform no function other than to develop, own, and operate the facility, the idea being to limit the number of the entity's creditors and thus provide protection for the project's lenders. See project financing under FINANC­ ING; SPECIAL-PURPOSE ENTITY; BANKRUPTCY-REMOTE ENTITY. single-recovery rule. See ONE-SATISFACTION RULE. single-registration rule. Copyright. The U.S. Copyright Office doctrine that permits only one registration for each original work.• Exceptions to the rule are rou­ tinely made for unpublished works that are later pub­ lished. Generally, revised works cannot be registered a second time if the revisions are not substantial, but the creator may be allowed to file a supplemental reg­ istration. [Cases: Copyrights and Intellectual Property ~50.16.]

single-source requirement. Under the common-law tort of false advertising, the necessity to show that the plaintiff is the only supplier of the genuine goods in question and that buyers would have bought the plain­ tiff's goods if the true nature of the defendant's goods had been known. Ely-Norris Safe Co. v. Mosler Safe Co., 7 F.2d 603 (2d Cir. 1925) .• This is a narrow exception to the common-law rule that the tort of false advertis­ ing applies only in instances of passing off, trade defa­ mation, or trade disparagement. [Cases: Antitrust and Trade Regulation ~ 19.] singles' penalty. See MARRIAGE BONUS. single transferable vote. See VOTE (1). singular, adj. 1. Individual; each . 2. Civil law. Of or relating to separate interests in property, rather than the estate as a whole <singular succession>. singular successor. See SUCCESSOR.

singular title. See TITLE (2).

singuli in solidum (sing-gYd-h in sol-d-ddm). [Latin]

Hist. Each for the whole. "Where there are several co-obligants in one obligation, each bound in full performance, they are said to be liable singuli in solidum; and where each is liable only for his own proportion of the debt, they are said to be liable pro rata." John Trayner, Trayner's Latin Maxims 580 (4th ed. 1894).

sinking fund. See FUND (1).

1512

sinking-fund bond. See BOND (3).

sinking-fund debenture. See DEBENTURE.

sinking-fund depreciation method. See DEPRECIATION

METHOD. sinking-fund reserve. See RESERVE. sinking-fund tax. See TAX. si non jure seminis, saltem jure soli (SI non joor-ee sem­ i-nis, sal-tern joor-ee soh-h). [Law Latin] Hist. If not by right of seed, at least by right of soil. si non omnes (SI non om-neez). [Latin "if not all"] Hist. A writ allowing two or more judges to proceed in a case if the whole commission cannot be present on the assigned day. sin tax. See TAX. SIPA (see-Pd). abbr. SECURITIES INVESTOR PROTECTION ACT. si parcere ei sine suo periculo non potest (Sl pahr-sdr-ee ee-I sl-nee s[y]oo-oh pd-rik-Yd-Ioh non poh-test). [Latin] Roman law. Ifhe could not spare him except at his own peril. • This phrase defined the circumstances in which a defendant could plead self-defense. si paret (Sl par-et). [Latin] If it appears.• In Roman law, this phrase was part of the praetor's formula by which judges were appointed and told how they were to decide. SIPC. abbr. SECURITIES INVESTOR PROTECTION CORPO­ RATION. si petatur tantum (Sl pi-tay-tdr tan-tdm). [Law Latin] Hist. If asked only. "In blench holdings, where the return for the lands is gener­ ally elusory, that return is for the most part due and payable si petatur tantum; and this clause, by universal practice, has been interpreted to mean, if asked only within the year (si petatur intra annum). If the duty is not demanded within the year, the vassal is not liable for it." John Trayner, Trayner's Latin Maxims 575 (4th ed. 1894).

si prius (Sl prhls). [Law Latin] Ifbefore .• This phrase is used in a writ summoning a jury. si quis (Sl kwis). [Latin] Roman law. If anyone.• This term was used in praetorian edicts. In England, it was also mentioned in notices posted in parish churches requesting anyone who knows ofjust cause why a can­ didate for holy orders should not be ordained to inform the bishop. SIR. abbr. 1. SELF-INSURED RETENTION. 2. STATUTORY INVENTION REGISTRATION. si recognoscat (Sl rek-dg-nos-kat). [Latin "ifhe acknowl­ edges"] Hist. A writ allowing a creditor to obtain money counted - that is, a specific sum that the debtor had acknowledged in county court to be owed. si sine liberis decesserit (Sl sl-nee lib-dr-is di-ses-dr-it). [Latin] Hist. Ifhe shall have died without children. si sit admodum grave (Sl sit ad-moh-ddm gray-vee). [Latin] Hist. If it be very heinous. si sit incompos mentis, fatuus, et naturaliter idiota (Sl sit in-kom-pds men-tis, fach-oo-ds et nach-d-ray-li-tdr

678 trust

1513

id-ee-oh-t 189; Commerce small-business corporation. See CORPORATION. Small Business Investment Act. A federal law, originally enacted in 1958, under which investment companies may be formed and licensed to supply long-term equity capital to small businesses .• The statute is implemented by the Small Business Administration. 15 USCA §§ 661 et seq. [Cases: United States C=-;;53(8).] small-business investment company. A corporation created under state law to provide long-term eqUity capital to small businesses, as provided under the Small Business Investment Act and regulated by the Small Business Administration. 15 USCA §§ 661 et seq. Abbr. SBIC. [Cases: Banks and Banking (;:::::>310; United States (;::;c 53(8).J small claim. A claim for damages at or below a speci­ fied monetary amount. See small-claims court under COURT. [Cases: Courts small-claims court. See COURT.

small-debts court. See small-claims court under

COURT.

small entity. Patents. An independent inventor, a non­ profit organization, or a company with 500 or fewer employees.• A small entity is usu. charged a lower fee for patent applications and related expenses as long as the patent rights are not aSSigned or licensed to a large entity (a for-profit organization with more than 500 employees). 37 CFR § 1.27. [Cases: Patents (;::;c 103.] small-estate probate. See PROBATE. small invention. See UTILITY MODEL. small-loan act. A state law fixing the maximum legal interest rate and other terms on small, shorHerm loans by banks and finance companies. [Cases: Banks and Usury Banking (;:::::> 181; Consumer Credit 42.] small-loan company. See consumer finance company under FINANCE COMPANY. smart card. See STORED-VALUE CARD. smart money. 1. Funds held by sophisticated, usu.large investors who are considered capable of minimizing risks and maximizing profits . 2. See punitive damages under DAMAGES . smash-and-grab. Slang. The act of breaking a window or other glass barrier in order to seize goods beyond it before fleeing .• In a smash-and-grab, the criminal usu. breaks a shop window or a glass display case with a handheld tool and seizes whatever merchandise is nearest. Cf. RAM RAID. 5MBS. abbr. See stripped mortgage-backed security under SECURITY.

1516

Smith Act. A 1948 federal antisedition law that crimi­ nalizes advocating the forcible or violent overthrow of the government. 18 USCA § 2385. [Cases: Insurrection and Sedition 'The Smith Act is aimed at the advocacy and teaching of concrete action for the forcible overthrow of the govern· ment, and not at advocacy of principles divorced from action. The essential distinction is that those to whom the advocacy is addressed must be urged to do something, now or in the future, rather than merely to believe in some· thing." 70 Am.Jur. 2d Sedition, Etc. § 63, at 59 (1987).

Smithsonian Institution. An independent trust of the United States responsible for conducting scientific and scholarly research; publishing its results; maintaining over 140 million artifacts, works of art, and scientific specimens for study, display, and circulation through­ out the nation; and engaging in educational program­ ming and international cooperative research.• It was created in 1846 to give effect to the terms of the will of a British scientist, James Smithson, who left his entire estate to the United States. smoking gun. (1974) A piece of physical or documentary evidence that conclusively impeaches an adversary on an outcome-determinative issue or destroys the adver­ sary's credibility. Smoot-Hawley Tariff Act. Hist. A 1930 protectionist statute that raised tariff rates on most articles imported into the U.S., and provoked U.S. trading partners to institute comparable tariff increases .• This act is often cited as a factor in precipitating and spreading the Great Depression. The Act was named for the legislators who sponsored it, Senator Reed Smoot of Utah and Repre­ sentative Willis C. Hawley of Oregon. It is sometimes called the Grundy Tarifffor Joseph Grundy, who was president ofthe Pennsylvania Manufacturers Associa­ tion and the chieflobbyist supporting the Act. - Also termed Tariff Act of 1930. smuggling, n. (17c) The crime of importing or exporting illegal articles or articles on which duties have not been paid. See CONTRABAND. Cf. PEOPLE-SMUGGLING; TRAF­ FICKING. [Cases: Customs Duties 120.1,125.] ­ smuggle, vb. alimentary-canal smuggling. Smuggling carried out by swallowing packets, usu. balloons, filled with con­ traband, which stays in the smuggler's stomach or intestines during the crossing of a border. smurf, n. Slang. 1. A person who participates in a money­ laundering operation by making transactions ofless than $10,000 (the amount that triggers federal report­ ing requirements) at each of many banks .• The name derives from a cartoon character of the 1980s. 2. See CURRENCY-TRANSACTION REPORT.

sneak-and-peek search warrant. See covert-entry search warrant under SEARCH WARRANT. SNS. abbr. STRATEGIC NATIONAL STOCKPILE. SO. abbr. SOUTHERN REPORTER. sober, adj. (14c) 1. (Of a person) not under the influence of drugs or alcohol. 2. (Of a person) regularly abstinent

1517

socida

or moderate in the use of intoxicating liquors. [Cases: Chemical Dependents

411.] / sobrini (s22S.14.] 2. An allowance in a zoning ordinance for special uses that are consid­ ered essential and are not fundamentally incompatible with the original zoning regulations. - Also termed (in sense 2) conditional use; special use. Cf. VARIANCE (2). [Cases; Zoning and Planning C=>481.] special execution. See EXECUTION. special executor. See EXECUTOR. special-facts rule. Corporations. The principle that a director or officer has a fiduciary duty to disclose material inside information to a shareholder when engaging in a stock transaction under special cir­ cumstances, as when the shareholder lacks business acumen, the shares are closely held with no readily ascertainable market value, or the director or officer instigated the transaction. -1his is an exception to the "majority rule." Also termed special-circumstances rule. Cf. MAJORITY RULE (2). [Cases: Corporations 316(3).]

special finding. See FINDING OF FACT. special-form drawing. See DRAWING. special franchise. See FRANCHISE (2). special grand jury. See GRAND JURY. special guaranty. See GUARANTY. special guardian. See GUARDIAN. special-hazard rule. The principle that workers' compen­ sation covers an employee for injuries received while traveling to or from work if the route used contains unique risks or hazards and is not ordinarily used by the public except in dealing with the employer. - This is an exception to the general rule that an employee is not covered for injuries occurring during the employee's commute. See GOING-AND-COMING RULE. Cf. SPECIAL­ ERRAND DOCTRINE. [Cases: Workers' Compensation C=> 719-755.]

special housing unit. A block of cells used to house inmates who have been separated from the general prison population, usu. for disciplinary purposes but sometimes for safety reasons. - Inmates in special housing units typically have fewer privileges than other inmates. - Abbr. SHU. [Cases; Prisons C=> 13(5).] special imparlance. See IMPARLANCE. special indorsement. See INDORSEMENT. special injunction. See INJUNCTION. special instruction. See JURY INSTRUCTION. special-interest group. An organization that seeks to influence legislation or government policy in favor of a particular interest or issue, esp. by lobbying. Also termed special interest. special interrogatory. See INTERROGATORY.

special issue. 1. See ISSUE (1). 2. See special interrogatory under INTERROGATORY. specialist. 1. A lawyer who has been board-certified in a specific field oflaw. See BOARD OF LEGAL SPECIALIZA­ TION. 2. Securities. A securities-exchange member who makes a market in one or more listed securities .• The exchange assigns securities to various specialists and expects them to maintain a fair and orderly market as provided by SEC standards. [Cases: Exchanges 10.10.] special judge. See JUDGE. special jurisdiction. See limited jurisdiction under JURIS­ DICTION.

special jury. See JURY. special law. See LAW. special legacy. See specific legacy under LEGACY. special letter of credit. See LETTER OF CREDIT. special lien. See particular lien under LIEN. special limitation. See LIMITATION. special litigation committee. Corporations. A com­ mittee of independent corporate directors assigned to investigate the merits of a shareholder derivative suit and, if appropriate, to recommend maintaining or dismissing the suit. - Abbr. SLC. - Also termed independent investigation committee; authorized com­ mittee. See DERIVATIVE ACTION. [Cases: Corporations C=>206(l).] specially accredited agent. See AGENT (2). special malice. See particular malice under MALICE. special master. 1. MASTER. 2. See judicial officer (3) under OFFICER. special matter. See MATTER. special meaning. See SECONDARY MEANING. special meeting. See MEETING. special message. See MESSAGE. special-mission exception. See SPECIAL-ERRAND DOC­ TRINE.

special mortgage. See MORTGAGE. special motion. See MOTION (1). special-needs analysis. (1989) Criminal procedure. A balancing test used by the Supreme Court to determine whether certain searches (such as administrative, civil­ based, or public-safety searches) impose unreasonably on individual rights. [Cases: Searches and Seizures C=> 24.]

special-needs child. See CHILD. special-needs trust. See supplemental-needs trust under TRUST.

special non est factum. See NON EST FACTUM. special occupant. See OCCUPANT. special offering. See OFFERING. special order. See ORDER (4).

special-order agenda. See special-order calendar under CALENDAR (4).

special-order calendar. See CALENDAR (4). special owner. See OWNER. special partner. See limited partner under PARTNER. special partnership. See PARTNERSHIP. special permit. See SPECIAL-USE PERMIT. special plea. See PLEA (3). special pleader. See PLEADER. special pleading. (17c) 1. The common-law system of pleading that required the parties to exchange a series of court papers (such as replications, rebutters, and sur­ rebutters) setting out their contentions in accordance with hypertechnical rules before a case could be tried. • Often, therefore, cases were decided on points of pleading and not on the merits. [Cases: Pleading 1.] 2. The art of drafting pleadings under this system. 3. An instance of drafting such a pleading. 4. A respon­ sive pleading that does more than merely deny alle­ gations, as by introducing new matter to justify an otherwise blameworthy act. 5. An argument that is unfairly slanted toward the speaker's viewpoint because it omits unfavorable facts or authorities and develops only favorable ones. special plea in bar. See PLEA IN BAR. special plea in error. At common law, a plea alleging some extraneous matter as a ground for defeating a writ of error (such as a release or expiration of the time within which error can be brought), to which the plain­ tiff in error must reply or demur. special power. 1. See POWER (3). 2. See limited power of appointment under POWER OF APPOINTMENT. special power of appOintment. See limited power of appOintment under POWER OF APPOINTMENT. special power of attorney. See POWER OF ATTORNEY. special prayer. See PRAYER FOR RELIEF. special privilege. See PRIVILEGE (1). special proceeding. See PROCEEDING. special property. See PROPERTY. special prosecutor. See PROSECUTOR. special-purpose entity. A business established to perform no function other than to develop, own, and operate a large, complex project (usu. called a single­ purpose project), esp. so as to limit the number ofcredi­ tors claiming against the project. - A special-purpose entity provides additional protection for project lenders, which are usu. paid only out of the money gen­ erated by the entity's business, because there will be fewer competing claims for that money and because the entity will be less likely to be forced into bankruptcy. A special-purpose entity will sometimes issue securities instead ofjust receiving a direct loan. - Abbr. SPE. ­ Also termed special-purpose vehicle (SPV). See BANK­ RUPTCY-REMOTE ENTITY; SINGLE-PURPOSE PROJECT;

project financing under FINANCING.

1527

special-purpose property. See PROPERTY. special-purpose vehicle. See SPECIAL-PURPOSE ENTITY. special reference. See REFERENCE. special registration. See REGISTRATION (1). special relationship. See RELATIONSHIP. special-relationship doctrine. (1981) The theory that if a state has assumed control over an individual sufficient to trigger an affirmative duty to protect that individual (as in an involuntary hospitalization or custody), then the state may be liable for the harm inflicted on the individual by a third party.• This is an exception to the general principle prohibiting members ofthe public from suing state employees for failing to protect them from third parties. Also termed special-relationship exception. Cf. DANGER-CREATION DOCTRINE. [Cases: States ~ 112.2(2).] special relief. Copyright. A variance from a formal requirement for copyright registration or deposit granted by the U.S. Copyright Office when an applicant shows a good reason for the variance. [Cases: Copy­ rights and Intellectual Property ~50.20.] special replication. See REPLICATION. special reprisal. See REPRISAL. special retainer. See RETAINER. special retention. See RETENTION. special rule. 1. A rule applicable to a particular case or circumstance only. See RULE (1). 2. A deliberative assembly's rule that supplements or supersedes its par­ liamentary authority. See PARLIAMENTARY AUTHORITY. 3. A rule that applies only to a particular matter, such as a specific bill. In senses 2 & 3, see RULE (2), (3). specials. See special damages under DAMAGES. special-sensitivity rule. See EGGSHELL-SKULL RULE. special session. See SESSION (1). special setting. See SETTING. special statute. See STATUTE. special stock. See STOCK.

special tail. See tail special under TAIL.

special tax. See TAX. special-tax bond. See BOND (3). special term. See TERM (5). Special 301. Intellectual property. A provision of the Omnibus Trade and Competitiveness Act of 1988 directing the U.S. Trade Representative to report annually on countries that do not provide adequate and effective protection against the pirating of goods pro­ tected by U.S. intellectual-property rights .• Countries that fail the annual audit are put on a watch list and may face trade sanctions. 19 USCA §§ 2411 et seq. special traverse. See TRAVERSE. special trial setting. See special setting under SETTING. special truce. See TRUCE. special trust. See active trust under TRUST.

species

specialty. 1. See contract under seal under CONTRACT. 2. DOCTRINE OF SPECIALTY. 3. Eminent domain. Unique property (such as a church or cemetery) that is essen­ tially not marketable, so that its value for condemnation purposes is determined by measuring the property's reproduction cost less any depreciation. Also termed (in sense 3) specialty property. [Cases: Eminent Domain C-~\ 134.]

specialty bar. See BAR. specialty contract. See contract under seal under CONTRACT.

specialty creditor. See CREDITOR. specialty debt. See special-contract debt under DEBT. specialty doctrine. See DOCTRINE OF SPECIALTY. specialty property. See SPECIALTY (3). special use. See SPECIAL EXCEPTION (2). special-use permit. A zoning board's authorization to use property in a way that is identified as a special exception in a zoning ordinance .• Unlike a variance, which is an authorized violation ofa zoning ordinance, a special-use permit is a permitted exception. - Abbr. SUP. - Also termed conditional-use permit; special permit. See SPECIAL EXCEPTION (2). Cf. VARIANCE (2). [Cases: Zoning and Planning ~371, 483.] special-use valuation. See VALUATION. special venire. See VENIRE. special verdict. See VERDICT. special warranty. See WARRANTY (1). special warranty deed. See DEED. specie (spee-shee). See IN SPECIE. species (spee-sheez). 1. A taxonomic class of organisms uniquely distinguished from other classes by shared characteristics and usu. by an inability to interbreed with members of other classes. candidate species. Environmental law. Plants and animals identified by the Fish and Wildlife Service or National Marine Fisheries Service as potentially endangered or threatened but not of high enough priority to develop a proposed listing regulation under the Endangered Species Act. • Candidate species are not protected by federal law. - Also termed listed species. endangered species. A species in danger ofbecoming extinct; esp., under federal law, a species that is in danger of extinction throughout all or a significant part of its range .• Federal law excludes from the defi­ nition a species of the class Insecta ifthe Environmen­ tal Protection Agency determines that it constitutes a pest whose protection would present a Significant risk to the human population. 50 CFR § 81. [Cases: Environmental Law ~~528.1 listed species. See candidate species. threatened species. A species that, within the foresee­ able future, is likely to become an endangered species throughout all or a Significant part of its range. 16

USCA § 1532(20). [Cases: Environmental Law 528.] 2. A spedfic class or kind of thing within a larger, general class.• For example, tort refers to a general class or genus. Slander refers to a specific kind of tort. Cf. GENUS. 3. Patents. An element, usu. one of several mutually exclusive alternatives, that may be used in an invention to achieve a desired result <magnetic metals, including iron and steel>.• Species may be structures, steps, parts, compounds, and so on. ultimate species. A species that has been fully and narrowly defined.• For example, a species may be defined generally as "magnetic metals, includ­ ing iron and steeL" or particularly, such as "sodium chloride." species claim. See PATENT CLAIM. species facti (spee-shee-eez or spee-sheez fak-tI). [Latin] Scots law. The particular character of the thing done. • The phrase appeared in reference to the specific criminal act or civil wrong alleged. specific, adj. 1. Of, relating to, or designating a particu­ lar or defined thing; explicit <specific duties>. 2. Ofor relating to a particular named thing <specific item>. 3. Conformable to special requirements <specific per­ spe­ formance>. - specificity (spes--fis-i-tee), n. cifically, adv. specific appropriation. See APPROPRIATION (2). specificatio (spes--fi-kay-shee-oh), n. [Latin fro species "form" + facere "to make"] Roman & civil law. L A giving of form to materials; the process of making something new from existing property. 2. A mode of acquisition by which a person makes something new from existing material (for example, wine from grapes or a ship from timber). See ACCESSION (4). PI. specifi­ cationes. "Specificatio. This may be described as acquisition of a new thing by making it, out of materials wholly or partly belonging to another person. We shall deal only with the case in which the materials are wholly another's. There was in classical law a conflict of opinion on this topic, , . , Justinian tells us that there had been a media sententia according to which it belonged to the maker if (I) it was irreducible to its former state, and (ii) it really was a nova speCies. where species means thing, And this view he adopts as law." w.w. Buckland, A Manual of Roman Private Law 143 (2d ed, 1953),

specification. (I7c) 1. The act ofmaking a detailed state­ ment, esp. of the measurements, quality, materials, or other items to be provided under a contract. [Cases: Contracts 199(1).] 2. The statement so made. 3. Patents. 'The part of a patent application describing how an invention is made and used, the best mode ofopera­ tion of the claimed invention, and the inventor's claims. • The specification must be clear and complete enough to enable a person of ordinary skill in the art to make and use the invention. It must also disclose the best mode ofworking the invention. The term may also refer to the description as separate from the claims. Abbr. spec. Cf. PATENT CLAIM. [Cases: Patents ~-:::>99.]

"The specification and claims of a patent, particularly ifthe Invention be at all complicated, constitute one of the most difficult legal instruments to draw with accuracy; and, in view of the fact that valuable inventions are often placed in the hands of inexperienced persons to prepare such speci' fications and claims, it is no matter of surprise that the latter frequently fail to describe with requisite certainty the exact invention of the patentee, and err either in claiming that which the patentee had not in fact invented, or in omitting some element which was a valuable or essential part of his actual invention," Topliff v. Topliff. 145 U.S. 156, 170,12 S.Ct. 825, 831 (1892).

substitute specification. A patent specification that is rewritten (1) to include amendments made to the specification after filing; (2) to replace an illegible or unreadable original; or (3) to prepare the papers for printing.• A substitute specification must be accompanied by a statement that it contains no new matter, and by a copy showing what has been added and deleted since the original specification. Substitute specifications are allowed under 37 CFR 1.125. Also termed rewritten specification. [Cases: Patents 109.] 4. A statement of charges against one who is accused of an offense, esp. a military offense. [Cases: Military Justice C:::950-971.] "A charge sets forth an offense that is, a particular kind of act or conduct that the governing rules define as entailing liability to prescribed penalties - of which the accused is alleged to be guilty. A specification states what the accused is alleged to have done which, if true, consti­ tutes an instance of the offense indicated in the charge. An accused must be found guilty of a charge before a penalty can be imposed." Henry M. Robert. Robert's Rules of Order Newly Revised § 61, at 636 (10th ed. 2002),

5. The acquisition of title to materials belonging to another person by converting those materials into a new and different form, as by changing grapes into wine, lumber into shelving, or corn into liquor.• The effect is that the original owner of the materials loses the property rights in them and is left with a right of action for their original value. - Abbr. spec. specific bequest. See BEQUEST. specific denial. See DENIAL. specific deposit. See special deposit under DEPOSIT (2). specific devise. See DEVISE. specific duty. See DUTY (4). specific enforcement. See primary right under RIGHT. specific example. See EXAMPLE. specific guaranty. See GUARANTY. specific intent. See INTENT (1). specific-intent defense. Criminal law. A defendant's claim that he or she did not have the capacity (often supposedly because of intoxication or mental illness) to form the intent necessary for committing the crime alleged. lCases: Criminal Law ~48-51, 55.] specific jurisdiction. See JURISDICTION. specific legacy. See LEGACY. specific legatee. See LEGATEE.

speech

1529

specific lien. See LIEN.

specific main motion. See incidental main motion under

MOTION (2).

specific objection. See OBTECTION. specific performance. (I8c) The rendering, as nearly as practicable, of a promised performance through a judgment or decree; specif., a court-ordered remedy that requires precise fulfillment of a legal or contrac­ tual obligation when monetary damages are inappro­ priate or inadequate, as when the sale of real estate or a rare article is involved.• Specific performance is an equitable remedy that lies within the court's discretion to award whenever the common-law remedy is insuf­ ficient, either because damages would be inadequate or because the damages could not pOSSibly be estab­ lished. - Also termed specific relief [Cases: Specific Performance (;::c 1.] "In essence, the remedy of specific performance enforces the execution of a contract according to its terms, and it may therefore be contrasted with the remedy of damages, which is compensation for non-execution. In specific per­ formance, execution of the contract is enforced by the power of the Court to treat disobedience of its decree as contempt, for which the offender may be imprisoned until he IS prepared to comply with the decree. Actually, ... it is not strictly accurate to say that the Court enforces execu' tion of the contract according to its terms, for the Court will not usually intervene until default upon the contract has occurred, so that enforcement by the Court is later in time than performance carried out by the person bound, without the intervention of the Court." G.W. Keeton, An Introduction to Equity 304 (5th ed. 1961).

specific personal jurisdiction. See TURISDICTION. specific policy. See basic-form policy under INSURANCE POLICY.

specific-purpose rule. Insurance. The principle that a nonowner driver of a vehicle is treated as an omnibus insured under the vehicle owner's liability coverage only ifthe driver's actual use ofthe vehicle at the time ofthe accident is the exact use that the owner contemplated when granting permission or consent to the nonowner driver.• The time at which the bailment of the vehicle was to expire must not have passed, the place where the vehicle was being used must be as specified or con­ templated by the insured, and the use of the vehicle must comport with the type of use that the insured had in mind when the bailment was created. Otherwise, the permittee's use of the vehicle will be regarded as a conversion. - Also termed conversion rule; strict rule. [Cases: Insurance C::::>2667.J specific relief. See SPECIFIC PERFORMANCE. specific remedy. See REMEDY. specific tax. See TAX. specific traverse. See common traverse under TRAVERSE. specimen. An actual sample of something; esp., an example of a trademark as it is used in commerce .• In the field of trademarks, a specimen typically consists of a label, a container, a display, or a photograph of the mark used for selling or advertising the goods or services. [Cases: Trademarks (;::c 1282.]

specious, adj. Falsely appearing to be true, accurate, or just <specious argument>. spectrograph. (1884) An electromagnetic machine that analyzes sound, esp. a human voice, by separating and mapping it into elements offrequency, time lapse, and intensity (represented by a series of horizontal and vertical bar lines) to produce a final voiceprint. See VOICEPRINT. [Cases: Criminal Law (;::c339.6, 388.2.] speculation, 11. (l4c) 1. The buying or selling of some­ thing with the expectation of profiting from price fluctuations . 2. The act or practice of theorizing about matters over which there is no certain knowledge . spiritual corporation. See CORPORATION. spiritual court. See ecclesiastical court under COURT. spiritual lord. An archbishop or bishop having a seat in the House of Lords. spiritual tenure. See TENURE. spiritual-treatment exemption. See FAITH-HEALING

split-level statute. See STATUTE. split-off, n. 1. 'llie creation of a new corporation by an existing corporation that gives its shareholders stock in the new corporation in return for their stock in the original corporation. 2. The corporation created by this process. - Also written splitoff. Cf. SPIN-OFF; SPLIT­

EXEMPTION.

spital (spit-;>l). Archaic. A hospital.

Also termed

spittle. spite fence. (1901) A fence erected solely to annoy a neighbor, as by blocking the neighbor's view or pre­ venting the neighbor from acquiring an easement of light . Cf. LAWFUL FENCE. [Cases: Nuisance Adjoining Landowners C::~: 10; Fences C=)3(12).] spittle. See SPITAL. split, vb. 1. To divide (a cause of action) into segments or parts. 2. To issue two or more shares for each old share without changing the shareholder's proportional ownership interest. See STOCK SPLIT; SPLIT-INTEREST PURCHASE OF PROPERTY. [Cases: Corporations 66.]

split custody. See CUSTODY (2). split-dollar life insurance. See LIFE INSURANCE. split fund. See dual fund under MUTUAL FUND. split-funded plan. See EMPLOYEE BENEFIT PLAN. split gift. See GIFT. split income. See INCOME. split-interest purchase of property. An arrangement between two parties to purchase an asset whereby one party (often a parent) purchases a life estate and the other party (often a child or grandchild of the life tenant) purchases a remainder interest. _ Each party to a split pays the actuarial value of the interest pur­ chased. Often shortened to split. - Also termed

joint-interest purchase.

TRUST.

UP.

split order. See ORDER (8). split sentence. See SENTENCE. splitting a cause of action. (1850) Separating parts of a demand and pursuing it piecemeal; presenting only a part of a claim in one lawsuit, leaving the rest for a second suit. _ This practice has long been considered procedurally impermissible. [Cases: Action C=S3; Judgment (;::::0591.] split-up, n. The division of a corporation into two or more new corporations. _ The shareholders in the original corporation typically receive shares in the new corporations, and the original corporation goes out ofbusiness. Also written splitup. Cf. SPI~-OFF; SPLIT-OFF.

split verdict. See VERDICT. spoiled ballot. See BALLOT (2). spoils of war. See BOOTY (1). spoils system. The practice of awarding government jobs to supporters and friends of the victorious politi­ cal party. Cf. MERIT SYSTEM. [Cases: Officers and Public Employees (;::::025.] spoliation (spoh-Iee-ay-sh;>n), n. (18c) 1. The intentional destruction, mutilation, alteration, or concealment of evidence, usu. a document. - Ifproved, spoliation may be used to establish that the evidence was unfavor­ able to the party responsible. [Cases: Evidence (;::::078; Federal Civil Procedure 1636; Pretrial Procedure (;::::0434.] 2. The seizure of personal or real property by violent means; the act of pillaging. 3. 1he taking of a benetit properly belonging to another. 4. Eccles. law. The wrongful deprivation of a cleric ofhis benefice. spoliate (spoh-Iee-ayt), vb. - spoliator (spoh-Iee-ay­ tar), n. spolium (spoh-lee-;>m), n. [Latin "booty"] Roman law. Something taken from an enemy in war or plundered from a fellow-citizen .• The plural spolia was more common than the Singular. Spondesnef Spondeo (spon-deez spon-dee-oh). [Latin] Roman law. Do you agree to undertake? I undertake. ­ This was the special phrase, available only to citizens, that created a sponsio. See SPONSIO; STIPULATIO. spondet peritiam artis (spon-det p;>-rish-ee-am ahr-tis). [Latin "he guarantees his professional skill"] Hist. He promised to use the skill of his art. - This phrase is used in construction contracts to indicate an implied agree­ ment to perform in a workmanlike manner. sponge tax. See pickup tax under TAX.

sponsalia (spon-say-lee-~), n. [Latin] Rist. 1. A betrothal; an engagement to marry. 2. An engagement gift. ­ Also termed stipulatio sponsalitia. sponsalia per verba de futuro (spon-say-lee-a p~r v. stable stand. Hist. In forest law, a person found standing in a forest either with a bow bent, ready to shoot a deer, or close to a tree with greyhounds on a leash and ready to slip, being presumptive evidence of an intent to steal the Crown's deer. stacking. (1982) l. Insurance. The process of obtaining benefits from a second policy on the same claim when recovery from the first policy alone would be inade­ quate. [Cases: Insurance~2108, 2799.] judicial stacking. The principle that a court can construe insurance policies to permit stacking, under certain circumstances, when the policies do not spe­

cifically allow stacking but public policy is best served by permitting it. [Cases: Insurance ~2799.] policy stacking. Stacking that is permitted by the express terms of an insurance policy. [Cases: Insur­ ance (;::,,2108.] 2. A gerrymandering technique in which a large politi­ calor racial group is combined in the same district with a larger opposition group. Cf. CRACKING; PACKING. [Cases: Elections 12(6).] staff attorney. 1. See ATTORNEY, 2. See CLERK (5). staff director. See EXECUTIVE DIRECTOR. staff judge advocate. See JUDGE ADVOCATE. stagflation (stag-flay-sh.:m), n. A period of slow economic growth or recession characterized by high inflation, stagnant consumer demand, and high unemploy­ ment. - stagflationary, adj. staggered board of directors. See BOARD OF DIREC­ TORS.

stagiarius (stay-jee-air-ee-as), n. [Latin] Hist. 1. Eccles. law. A resident canon; an ecclesiastic bound to keep terms of residence. 2. A stagiary; a law student keeping terms before admission to the bar. stake, n. Cbef, 12c) 1. Something (such as property) deposited by two or more parties with a third party pending the resolution of a dispute; the subject matter of an interpleader. [Cases: Interpleader ('::::>21.J 2. An interest or share in a business venture. 3. Something (esp. money) bet in a wager, game, or contest. [Cases: Gaming (;:::::, 1,67,] 4. A boundary marker used in land surveys. [Cases: Boundaries stakeholder. (18c) 1. A disinterested third party who holds money or property, the right to which is disputed between two or more other parties. See INTERPLEADER. [Cases: Interpleader (.':::' 13.] 2. A person who has an interest or concern in a business or enterprise, though not necessarily as an owner. 3. One who holds the money or valuables bet by others in a wager. [Cases: 72.5.] Gaming stale check. See CHECK. stale claim. See CLAIM (3). Stalingrad defense. See DEFENSE (2). stalking. (bef. 12c) 1. The act or an instance of follow­ ing another by stealth. 2. The offense of following or lOitering near another, often surreptitiously, to annoy or harass that person or to commit a further crime such as assault or battery. - Some statutory definitions include an element that the person being stalked must reasonably feel harassed, alarmed, or distressed about personal safety or the safety ofone or more persons for whom that person is responsible. And some definitions include acts such as telephoning another and remain­ ing silent during the call. Cf. CYBERSTALKING. [Cases: Extortion and Threats ~25.1.] stallage (stawl-ij), n. Hist. 1. The right to erect stalls in public markets. 2. The cost for that right.

stand at ease

1535

stamp, n. (15c) An official mark or seal placed on a document, esp. to indicate that a required tax (such as duty or excise tax) has been paid. [Cases: Bills and Notes C~:)56; Internal Revenue (;::::>4390-4409; Taxation 2218,3679.] stamp acts. English statutes requiring and regulating stamps on deeds, contracts, legal papers, bills, or other documents. stamp duty. Hist. A tax raised by requiring stamps sold by the government to be affixed to designated docu­ ments, thus forming part of the perpetual revenue. See stamp tax under TAX. [Cases: Internal Revenue 4390-4409; Taxation (;::2218.] "A fifth branch of the perpetual revenue consists in the stamp duties, which are a tax imposed upon all parch· ment and paper whereon any legal proceedings, or private instruments of almost any nature whatsoever, are written: and also upon licenses ... and pamphlets containing less than six sheets of paper. These imposts are very various, according to the nature of the thing stamped, rising gradu· ally from a penny to ten pounds: 1 William Blackstone, Commentaries on the Laws of England 312-13 (1765).

stamp tax. See TAX. stand. See WITNESS STAND. stand adjourned. (Of a meeting or proceeding) to be in a state of adjournment .• This status is usu. announced by a judge or other presiding officer concerning the business scheduled to continue at a later time. - Often shortened to adjourned. [Cases: Courts (::::;'66.] standard, n. (I5c) 1. A model accepted as correct by custom, consent, or authority <what is the standard in the ant·farm industry?>. 2. A criterion for measur­ ing acceptability, quality, or accuracy . standard, adj. objective standard. (1915) A legal standard that is based on conduct and perceptions external to a particular person.• In tort law, for example, the reasonable­ person standard is considered an objective standard because it does not require a determination of what the defendant was thinking. subjective standard. (1915) A legal standard that is peculiar to a particular person and based on the person's individual views and experiences.• In criminal law, for example, a subjective standard applies to determine premeditation because it depends on the defendant's mental state. Standard & Poor's. An investment-analysis and -advisory service .• Standard & Poor's rates the finan­ cial strength of businesses from AAA (strongest) to AA, A, BBB, and so on to CCC. Most grades may also be modified with a plus- or minus-sign according to the business's relative strength among similar companies. A rating ofR means that the company is the subject of some regulatory action. standard characteristics. See STANDARD DESCRIPTIVE CHARACTERISTICS.

standard deduction. See DEDUCTION.

!

I

standard descriptive characteristics. Parliamentary law. The basic rules that apply to and define a motion .• The characteristics include when the motion is in order; its rank that is, what it takes precedence over, and what yields to it; whether making it may interrupt a speaker; whether it needs a second; whether it is debat­ able; whether it is amendable; what vote its adoption Also takes; and whether it can be reconsidered. termed standard characteristics. standard-form contract. See CONTRACT. standard instruction. See fURY INSTRUCTION. standardized contract. See standard-form contract under CONTRACT. standard mortgage clause. See MORTGAGE CLAUSE. standard of care. (1890) Torts. In the law of negligence, the degree of care that a reasonable person should exercise. See CARE (2). [Cases: Negligence (;~:'230233.] standard of need. In public-assistance law, the total sub­ sistence resources required by an individual or family unit as determined by a state and, when unsatisfied by available resources, entitles the individual or family unit to public assistance. [Cases: Social Security and Public Welfare (::::;4.10,194.7.] standard of proof. (1922) The degree or level of proof demanded in a specific case, such as "beyond a reason­ able doubt" or "by a preponderance of the evidence." See BURDEN OF PERSUASION. [Cases: Criminal Law (;::;:. 560; Evidence (::::;596.] standard of review. 1be criterion by which an appel­ late court exercising appellate jurisdiction measures the constitutionality of a statute or the propriety of an order, finding, or judgment entered by a lower court. [Cases: Appeal and Error (~J836-1099; Criminal Law (::::;'1134.1-1180; Federal Courts 751-917.] standard policy. See INSURANCE POLICY. standard-setting organization. A body that sets, describes, or documents uniform operating, techno­ logical, or other norms for participants in a particular field or industry. - Also termed standards body. Standards for Imposing Lawyer Sanctions. The ABA's 1986 supplement to the Standards for Lawyer Disci­ pline, prescribing a range of sanctions and guidelines for applying them.• Sanctions range from repri­ mands to disbarment. [Cases: Attorney and Client (;:::::>59.5(2).J Standards for Lawyer Discipline. A set of model rules, created by the ABA in 1979, establishing procedures for disciplining lawyers who violate ethics rules or commit crimes.• The rules stress that the process is an inquiry to determine an attorney's fitness to practice, not to determine a punishment. stand at ease. Parliamentary law. To take an informal pause during a meeting wit hout taking a recess, at the instance of the chair.

standby charge

standby charge. A property levy, often based on acreage, imposed on the mere availability of a service, whether or not the service is actually used. standby commitment. An arrangement between an underwriter and an issuer of securities whereby the underwriter agrees, for a fee, to buy any unsold shares remaining after the public offering. - Also termed standby underwriting agreement. standby counsel. See COUNSEL. standby guardian. See GUARDIAN. standby guardianship. See GUARDIA:SSHIP. standby letter of credit. See LETTER OF CREDIT. standby trust. See TRUST. standby underwriting. See UNDERWRITI!'IG. standby underwriting agreement. See STANDBY COM­ MITMENT.

standing, n. (1924) A party's right to make a legal claim or seek judicial enforcement of a duty or right .• To have standing in federal court, a plaintiff must show (1) that the challenged conduct has caused the plain­ tiff actual injury, and (2) that the interest sought to be protected is within the zone of interests meant to be regulated by the statutory or constitutional guarantee in question. Also termed standing to sue. Cf. JUSTI­ CIABILITY. [Cases; Action Federal Civil Proce­ 103.1.] dure "Have the appellants alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness wh ich sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions? This is the gist of the question of standing." Baker v. Carr, 369 U.S. 186,204, 82 S.Ct. 691, 703 (1962) (Brennan, j.). 'The word standing is rather recent in the basic judicial vocabulary and does not appear to have been commonly used until the middle of our own century. No authority that I have found introduces the term with proper explanations and apologies and announces that henceforth standing should be used to describe who may be heard by ajudge. Nor was there any sudden adoption by tacit consent. The word appears here and there. spreading very gradually with no discernible pattern. Judges and lawyers found themselves using the term and did not ask why they did so or where it came from." joseph Vining, Legal Identity 55 (1978).

third-party standing. (1968) Standing held by someone claiming to protect the rights of others.• For example, in most jurisdictions, only a parent has standing to bring a suit for custody or visitation; in some, however, a third party for instance, a grand­ parent or a person with whom the child has substan­ tial contacts - may have standing to bring an action for custody or visitation. See GRANDPARENT RIGHTS. [Cases; Action Child Custody C=:>409; Federal Civil Procedure (;:~ 103.4.] standing aside a juror. The prosecution practice of provisionally placing a juror aside until the panel is exhausted, without providing a reason, instead ofchal­ lenging the juror or showing cause.• The practice orig­ inally developed as a method ofavoiding the Challenge

1536

oOurors Act (1305), which prohibited the Crown from challenging a juror without showing cause. A similar practice was formerly used in Pennsylvania. [Cases; Jury C=:> 122.] standing by. (14c) 1. The awaiting of an opportunity to respond, as with assistance. 2. Silence or inaction when there is a duty to speak or act; esp., the tacit possession of knowledge under circumstances requiring the pos­ sessor to reveal the knowledge. See estoppel by silence under ESTOPPEL. standing committee. See COMMITTEE. Standing Committee on Rules of Practice and Proce­ dure. A group of judges, lawyers, and legal scholars appointed by the Chief Justice of the United States to advise the Judicial Conference of the United States on possible amendments to the procedural rules in the various federal courts and on other issues relating to the operation of the federal courts. 28 USCA § 331. "[Under 28 USCA § 331], the Judicial Conference of the United States has created a Standing Committee on Rules of Practice and Procedure and has authorized the appoint· ment from time to time of various advisory committees. These committees make recommendations regarding amendments of the rules to thejudicial Conference, which in turn transmits those recommendations it approves to the Supreme Court. Under this new plan, as under the machin· ery in effect from 1934 to 1956, the Court retains the ultimate responsibility for the adoption of amendments to the rules." 4 Charles Alan Wright & Arthur R. Miller, Fedeml Practice and Procedure § 1007, at 35 (2d ed. 1987).

standing crops. See CROPS.

standing division. See standing vote under VOTE (4).

standing master. See MASTER.

standing mortgage. See interest-only mortgage under

MORTGAGE.

standing mute. See MUTE {2}. standing offer. See OFFER. standing order. See ORDER (2). standing rule. See RULE (3). standing seised to uses. The holding of title for the benefit or use of another, such as a relative in consid­ eration of blood or marriage .• A covenant to stand seised to uses is a type of conveyance that depends on the Statute of Uses for its effect. - Often shortened to seised to uses. See STATUTE OF USES. standing to sue. See STANDING. standing vote. See VOTE (4), stand mute. (16c) 1. (Of a defendant) to refuse to enter a plea to a criminal charge .• Standing mute is treated as a plea of not guilty. [Cases; Criminal Law C=:>300.] 2. (Of any party) to raise no objections. standstill agreement. (1934) Any agreement to refrain from taking further action; esp., an agreement by which a party agrees to refrain from further attempts to take over a corporation (as by making no tender offer) for a specified period, or by which financial institutions agree not to call bonds or loans when due.

1537

stand trial. (l7c) To submit to a legal proceeding, esp. a criminal prosecution. stante matrimonio (stan-tee ma-tr,,-moh-nee-oh). [Latin] Hist. The marriage remaining undissolved. staple (stay-p~l). 1. A key commodity such as wool, leather, tin, lead, butter, or cheese (collectively termed the staple). 2. Hist. A town appointed by the Crown as an exclusive market for staple products. See STATUTE STAPLE. 3. Patents. An unpatented thing or material that is a component of a patented product or is used in a patented process, but also has other practical uses .• Patentees may not gain control ofthe market for staples through tying agreements. Cf. NONSTAPLE. Star Chamber. 1. Hist. An English court having broad civil and criminal jurisdiction at the king's discretion and noted for its secretive, arbitrary, and oppressive procedures, including compulsory self-incrimination, inquisitorial investigation, and the absence ofjuries.• The Star Chamber was abolished in 1641 because of its abuses of power. Also termed Court ofStar Chamber; Camera Stellata. 2. (usu. l.e.) Any secretive, arbitrary, or oppressive tribunal or proceeding. stare decisis (stahr-ee di-SI-sis or stair-ee), n. [Latin "to stand by things decided"J (I8c) The doctrine of prec­ edent, under which a court must follow earlier judicial decisions when the same points arise again in litiga­ tion. See PRECEDENT; NON QUIETA MOVERE. Cf. RES JUDICATA; LAW OF THE CASE; (in civil law) jurispru­ dence consiante under JURISPRUDENCE. [Cases: Courts ':;::::>89.J "The rule of adherence to judicial precedents finds its expression in the doctrine of stare deCisis. This doctrine is simply that, when a point or prinCiple of law has been once officially decided or settled by the ruling of a com­ petent court in a case in which it is directly and neces­ sarily involved, it will no longer be conSidered as open to examination or to a new ruling by the same tribunal, or by those which are bound to follow its adjudications, unless it be for urgent reasons and in exceptional cases." William M. Lile et aI., Brief Making and the Use of Law Books 321 (3ded.1914). "The general orthodox interpretation of stare decisis . .. is stare rationibus decidendis ('keep to the rationes decidendi of past cases 'J, but a narrower and more literal interpreta· tion is sometimes employed. To appreciate this narrower interpretation it is necessary to refer ... to Lord Halsbury's assertion that a case is only authority for what it actually deCides. We saw that situations can arise in which all that is binding is the deciSion. According to Lord Reid, such a situation arises when the ratio decidendi of a previous case is obscure, out of accord with authority or established prinCiple, or too broadly expressed." Rupert Cross & J.W. Harris, Precedent in English Law 100-01 (4th ed. 1991).

horizontal stare decisis. The doctrine that a court, esp. an appellate court, must adhere to its own prior deci­ sions, unless it finds compelling reasons to overrule itself. [Cases: Courts (>90(1).] super stare decisis. The theory that courts must follow earlier court decisions without considering whether those decisions were correct. - Critics argue that strict adherence to old decisions can result in grave injustices and cite as an example the repudiation of

state

Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138 (1896) by Brown v. Board ofEdueation, 347 U.S. 483, 74 S.Ct. 686 (1954). vertical stare decisis. The doctrine that a court must strictly follow the decisions handed down by higher courts within the same jurisdiction. [Cases: Courts (>91(0.5).]

stare decisis et non quieta movere (stair-ee di-Sl-sis et non kWI-ee-t" moh-veer-ee). [LatinI To stand by things decided, and not to disturb settled points. See STARE DECISIS.

stare enim religioni debet (stair-ee ee-nim ri-lij-ee-oh­ nee dee-bet or deb-et). [Latin] Hist. For one ought to abide by one's solemn obligation.

stare in judicio (stair-ee in joo-dish-ee-oh). [Latin] Hist. To appear before a tribunal as either a plaintiff or a defendant. star paging, n. (1873) 1. A method of referring to a page in an earlier edition ofa book, esp. a legal source .• This method correlates the pagination of the later edition with that of the earlier (usu. the first) edition. 2. By extension, the method of displaying on a computer screen the page breaks that occur in printed documents such as law reports and law reviews. Also termed star pagination. - star page, n. starr (stahr), n. [fr. Latin starrum fr. Hebrew sh'tar "a writing"] Hist. A Jewish contract (esp. for release of an obligation) that Richard I declared to be invalid unless it was placed in a lawful repository, the largest being in the king's Exchequer at Westminster. Also termed

starra. "It is well known that, before the banishment of the Jews under Edward I, their contracts and obligations were denominated in our ancient records starra or starrs, from a corruption of the Hebrew word, sheeay, a covenant.... These starrs, by an ordinance of Richard the first ... were commanded to be enrolled and deposited in chests under three keys in certain places; one, and the most consider­ able, of which was in the king's exchequer at Westmin­ ster .... [T]he room at the exchequer, where the chests containing these starrs were kept, was probably called the starr-chamber, and, when the Jews were expelled from the kingdom, was applied to the use of the king's council, when sitting in their judicial capacity." 4 William Blackstone, Com­ mentaries on the Laws of England 263 n.a (I 769).

stash, vb. To hide or conceal (money or property). stat. abbr. STATUTE. state, n. (16c) 1. The political system of a body of people who are politically organized; the system of rules by which jurisdiction and authority are exercised over such a body of people <separation of church and state>. Also termed political society. Cf. NATION. [Cases: Inter­ national Law ~3.] "A STATE is a community of persons living Within certain limits of territory, under a permanent organization which aims to secure the prevalence of justice by self-imposed law. The organ of the state by which its relations with other states are managed is the government." Theodore D. Woolsey, Introduction to the Study of International Law § 36, at 34 (5th ed. 1878).

state action "A state or political society is an association of human beings established for the attainment of certain ends by certain means. It is the most important of all the various kinds of society in which men unite, being indeed the nec· essary basis and condition of peace, order, and civilisation. What then is the difference between this and other forms of association? In what does the state differ from such other societies as a church, a university, ajoint·stock company, or a trade union? The difference is clearly one of function. The state must be defined by reference to such of its activi­ ties and purposes as are essential and characteristic." John Salmond, Jurisprudence 129 (Glanville L. Williams ed., 10th ed.1947).

institution, that is to say, it is a system of rela· tions which men establish among themselves as a means of securing certain objects, of which the most fundamental is a system of order within which their activities can be carried on. Modern states are territorial; their govern· ments exercise control over persons and things within their frontiers, and today the whole of the habitable world is divided between about seventy of these territorial states. A state should not be confused with the whole commu· nity of persons living on its territory; it is only one among a multitude of other institutions, such as churches and corporations, which a community establishes for securing different objects, though obviously it is one of tremendous importance; none the less it is not, except in the ideology of totalitarianism, an all·embracing institution, not some· thing from which, or within which, all other institutions and associations have their being; many institutions, e.g, the Roman Catholic Church, and many associations, e.g. federations of employers and of workers, transcend the boundaries of any single state." J.L. Brierly, The Law of Nations 118 (5th ed. 1955).

'A state is an

client state. A country that is obliged in some degree to cede some of the control of its external relations to some foreign power or powers. - Also termed satel­ lite state. Cf. SOVEREIGN STATE. composite state. A state that comprises an aggregate or group of constituent states. dependent state. See rlOnsovereign state. federal state. A composite state in which the sover­ eignty ofthe entire state is divided between the central or federal government and the local governments of the several constituent states; a union of states in which the control of the external relations of all the member states has been surrendered to a central gov­ ernment so that the only state that exists for interna­ tional purposes is the one formed by the union. Cf. confederation ofstates under CONFEDERATION. imperial state. Archaic. A composite state in which a common or central government possesses in itself the entire sovereignty, so that the constituent states possess no portion of this sovereignty. nonsovereign state. A state that is a constituent part of a greater state that includes both it and one or more others, and to whose government it is subject; a state that is not complete and self-existent. • Among other things, a nonsovereign state has no power to engage in foreign relations. - Also termed dependent state. Cf. SOVEREIGN STATE. part-sovereign state. See SOVEREIGN STATE. police state. A state in which the political, economic, and social life of its citizens is subject to repressive

1538

governmental control and arbitrary uses ofpower by the ruling elite, which uses the police as the instru­ ment of control; a totalitarian state.

receiving state. The country to which a diplomatic agent or consul is sent by the country represented by that agent. Cf. sending state. [Cases: Ambassadors and Consuls satellite state. See client state. sending state. The country from which a diplomatic agent or consul is sent abroad. Cf. receiving state. [Cases: Ambassadors and Consuls 3.] simple state. See unitary state. social-service state. A state that uses its power to create laws and regulations to provide for the welfare of its citizens. sovereign state. See SOVEREIGN STATE. unitary state. A state that is not made up of territorial divisions that are states themselves. - Also termed (archaically) simple state. 2. An institution of self-government within a larger political entity; esp., one of the constituent parts of a nation haVing a federal government . 1.] 3. (often cap.) The people of a [Cases: States state, collectively considered as the party wronged by a criminal deed; esp., the prosecution as the representa­ tive of the people . state action. (1893) Anything done by a government; esp., in constitutional law, an intrusion on a person's rights (esp. civil rights) either by a governmental entity or by a private requirement that can be enforced only by governmental action (such as a racially restrictive covenant, which requires judicial action for enforce­ 1325; Constitutional ment). [Cases: Civil Rights Law 1061.] state-action doctrine. Antitrust. The principle that the antitrust laws do not prohibit a state's anticompetitive acts, or official acts directed by a state. Parker v. Brown, 317 U.S. 341, 63 S.Ct. 307 (1943). - Also termed Parker doctrine. See MIDCAL TEST. [Cases: Antitrust and Trade Regulation 901.] state agency. See AGENCY (3). state-all-facts interrogatory. See identification inter­ rogatory under INTERROGATORY. state appeal. See APPEAL. state auditor. See AUDITOR. state bank. See BANK. state bar association. See BAR ASSOCIATIO:-l. state body. See state agency under AGENCY (3). state bond. See BOND (3). state-compulsion test. (1978) Civil-rights law. The rule that a state is responsible for discrimination that a private party commits while acting under the require­ ments of state law, as when a restaurant owner is required by state law to refuse service to minorities. Adiekes v. S.H. Kress & Co., 398 U.S. 144,90 S.Ct, 1598

1539

(1970). See SYMBIOTIC-RELATIONSHIP TEST; NEXUS [Cases: Civil Rights y 1326(4,7).] state court. See COURT. state criminal. See CRIMINAL. stated, adj. 1. Fixed; determined; settled <settlement for a stated amount>. 2. Expressed; declared <stated facts>. stated account. See account stated under ACCOUNT. stated capital. See CAPITAL. State Department. See DEPARTMENT OF STATE. stated-income loan. See LOAN. stated interest rate. See nominal rate under INTEREST TEST.

RATE.

stated meeting. See regular meeting under MEETING. stated rate. See nominal rate under INTEREST RATE. stated term. See general term under TERM (5). stated value. See PAR VALUE. state government. See GOVERNMENT. state jurisdiction. See JURISDICTION. State Justice Institute. A nonprofit federal corporation charged with improving judicial administration in state courts. _ It was created by the State Justice Institute Act of 1984.42 USCA §§ 10701-10713. - Abbr. SJI. state law. (18c) A body oflaw in a particular state con­ sisting of the state's constitution, statutes, regulations, and common law. Cf. FEDERAL LAW. stateless person. Int'llaw. A natural person who is not considered a national by any country. - The Convention Relating to Status of Stateless Persons (1954) provides these people with certain protections and obliges them to abide by the laws of the country where they reside. statement. (18c) 1. Evidence. A verbal assertion or nonverbal conduct intended as an assertion. [Cases: Evidence 2. A formal and exact presenta­ Also termed (for plaintiff) statement tion of facts. of cause of action. 3. Criminal procedure. An account of a person's knowledge of a crime, taken by the police during their investigation of the offense. Cf. CONFES­ SION.

consonant statement. (1889) A witness's previous dec­ 1aration, testified to by a person to whom the declara­ tion was made and allowed into evidence only after the witness's testimony has been impeached. - This type of evidence would, but for the impeachment of the witness, be inadmissible hearsay. Cf. prior consis­ tent statement. [Cases: Witnesses C::)414(2).] false statement. (I8c) 1. An untrue statement know­ ingly made with the intent to mislead. See PERJURY. 2. Anv one of three distinct federal offenses: (1) falsi­ fying 'or concealing a material fact by trick, scheme, or device; (2) making a false, fictitious, or fraudu­ lent representation; and (3) making or using a false document or writing. 18 USCA § 1001. [Cases: Fraud Y68.l0(1).j

statement of defense

financial statement. See FINANCIAL STATEMENT. incriminating statement. (1896) A statement that tends to establish the guilt of someone, esp. the person making it. prior consistent statement. (1883) A witness's earlier statement that is consistent with the witness's testi­ mony at trial. - A prior consistent statement is not hearsay if it is offered to rebut a charge that the testi­ mony was improperly influenced or fabricated. Fed. R. Evid. 801(d)(1)(B). Cf. consonant statement. prior inconsistent statement. (1885) A witness's earlier statement that conflicts with the witness's testimony at trial. - In federal practice, extrinsic evidence of an unsworn prior inconsistent statement is admis­ sible - if the witness is given an opportunity to explain or deny the statement - for impeachment purposes only. Fed. R. Evid. 613(b). Sworn statements may be admitted for all purposes. Fed. R. Evid. 80l(d) (1)(A). sworn statement. (1831) ]. A statement given under oath; an affidavit. Cf. AFFIDAVIT; DECLARATION (8). [Cases: Affidavits C'c:~) 1.] 2. A contractor-builder's listing of suppliers and subcontractors, and their respective bids, required by a lending institution for interim financing. voluntary statement. (l817) A statement made without the influence of duress, coercion, or inducement. Statement and Account Clause. (1975) 'The clause ofthe U.S. Constitution requiring the regular publication of the receipts and expenditures of the federal govern­ ment. US. Const. art. I, § 9, cl. 7. [Cases: United States Y44.] statement of account. 1. A report issued periodically (usu. monthly) by a bank to a customer, providing certain information on the customer's account, includ­ ing the checks drawn and cleared, deposits made, charges debited, and the account balance. - Also termed bank statement. See ACCOUNT (4). [Cases: Banks and Banking 2. A report issued periodically (usu. monthly) by a creditor to a customer, providing certain information on the customer's account, includ­ ing the amounts billed, credits given, and the balance due. - Also termed account statement. statement of affairs. 1. STATEMENT OF FINANCIAL AFFAIRS. 2. A balance sheet showing immediate liquida­ tion values (rather than historical costs), usu. prepared when insolvency or bankruptcy is imminent. statement of cause of action. See STATEMENT (2). statement of claim. 1. COMPLAINT (1). 2. English law. A plaintiff's initial pleading in a civil case; DECLARA­ TION

(7).

statement of condition. See BALANCE SHEET. statement of confession. See CONFESSION

OF

JUDGMENT.

statement ofdefense.lbe assertions by a defendant; esp., in England, the defendant's answer to the plaintiff's statement of claim.

1540

statement of fact

statement of fact. A form of conduct that asserts or implies the existence or nonexistence of a fact .• The term includes not just a particular statement that a particular fact exists or has existed, but also an asser­ tion that, although perhaps expressed as an opinion, implies the existence ofsome fact or facts that have led the assertor to hold the opinion in question. See affir­ mative testimony under TESTIMONY. [Cases: Criminal Law C:::='448; Evidence C:::='471, 505.] statement of facts. (18c) A party's written presentation of the facts leading up to or surrounding a legal dispute, usu. recited toward the beginning of a brief. Cf. STATE­ MENT OF THE CASE.

"The statement of facts is another of those critical parts of the brief .... Two principles are at war in drafting the statement of facts. First, judges want and some circuit rules require a nonargumentative, 'fair summary without argument or comment.' Conversely, you want a statement of facts that persuades the judges to rule for you as soon as they finish reading it. Satisfying both ends requires some balancing." David G. Knibb, Federal Court ofAppeals Manual§ 31.7, at 549 (4th ed. 2000).

agreed statement offacts. A narrative statement of facts that is stipulated to be correct by the parties and is submitted to a tribunal for a ruling .• When the narrative statement is filed on appeal instead of a report of the trial proceedings, it is called an agreed statement on appeal. [Cases: Appeal and Error C:::=' 845(2); Stipulations C:::=' 14(10), 18(7).] statement of financial affairs. Bankruptcy. A document that an individual or corporate debtor must file to answer questions about the debtor's past and present financial status. - Also termed statement ofaffairs. [Cases: BankruptcyC=)2321.] statement of financial condition. See BALANCE SHEET. statement of financial position. See BALANCE SHEET. statement of income. See INCOME STATEMENT. statement of intention. Bankruptcy. A preliminary state­ . ment filed by an individual debtor in a chapter 7 case, in which the debtor details, among other things, whether property of the bankruptcy estate securing any debt will be retained or surrendered and whether the property is claimed as exempt.• The statement must be filed on or before the date of the first creditors' meeting or within 30 days after the bankruptcy petition is filed, whichever is earlier. 11 USCA § 521 (a)(2). [Cases: BankruptcyC=' 2851,3022,3034,3415.1.] statement of particulars. See BILL OF PARTICULARS. statement of principle. In legislative drafting, a sentence or paragraph that explains the legislature's purpose in passing a statute.• Although a statement of principle often resembles a preamble (usu. both do not appear in a Single statute), it differs in that it typically appears in a numbered section of the statute. [Cases: Statutes statement of prior-art references. See

INFORMATION­

DISCLOSURE STATEMENT.

statement ofthe case. In an appellate brief, a short review of what has happened procedurally in the lawsuit and

how it reached the present court. elhe statement intro­ duces the reviewing court to the case by reciting the facts, procedures, decisions of the court or courts below as they are relevant to the appeal, and the reasons for those decisions. Also termed proceedings below. Cf. STATEMENT OF FACTS. [Cases: Appeal and Error 757; Federal Courts C:::='713.] statement of use. See amendment to allege use under TRADEMARK-APPLICATION AMENDMENT.

statement of utility. Patents. The portion of a patent­ application disclosure statement that explains how the invention is useful. [Cases: Patents C-:::>99.] statement of work. A contractual provision or exhibit that defines what one party (e.g., the seller) is going to do for the other (e.g., the buyer).• The statement of work often covers such terms as (1) inspection and acceptance, (2) quality-assurance requirements, (3) packing and marking, (4) data requirements, and (5) training. There are generally two types of specifica­ tions in a statement of work: a performance specifica­ tion establishing the minimum requirements for items to be supplied, and a design specification establishing the methods to be used in meeting those minimum requirements. Also termed statement-oj-work clause. Abbr. SOW. state of art. See STATE OF THE ART. state officer. See OFFICER (1). state of mind. (17c) 1. The condition or capacity of a person's mind; MENS REA. 2. Loosely, a person's reasons or motives for committing an act, esp. a criminal act. state-of-mind exception. (1949) Evidence. The principle that an out-of-court declaration of an existing motive is admissible, even when the declarant cannot testify in person.• This principle is an exception to the general rule that hearsay is inadmissible. [Cases: Criminal Law C:::='419(2.20); Evidence C=:268.J state of nature. (16c) The lack of a politically organized SOciety. _ The term is a hypothetical construct for the period in human history predating any type of politi­ cal society. "[Wle may make use ofthe contrast, familiar to the philoso­ phy of the seventeenth and eighteenth centuries, between the civil state and the state of nature. This state of nature is now commonly rejected as one of the fictions which flour­ ished in the era of the social contract, but such treatment is needlessly severe. The term certainly became associ­ ated with much false or exaggerated doctrine touching the golden age, on the one hand, and the bellum omnium contra omnes of Hobbes, on the other, but in itself it nev· ertheless affords a convenient mode for the expression of an undoubted truth. As long as there have been men, there has probably been some form of human society. The state of nature, therefore, is not the absence of SOCiety, but the absence of a society so organised on the basis of physical force as to constitute a state. Though human society is coeval with mankind, the rise of political society, properly so called, is an event in human history." John Salmond, Jurisprudence 103-04 (Glanville L. Williams ed., 10th ed. 1947).

state ofthe art. (1910) Products liability. The level of pertinent scientific and technical knowledge existing

1541

at the time of a product's manufacture, and the best technology reasonably available at the time the product was sold. Also termed state ofart. [Cases: Products Liability C=~ 178, 378.J state-of-the-art, adj.

Stationery Office

state sovereignty. (I8c) The right of a state to self-gov­ ernment; the supreme authority exercised by each state. [Cases: States C= 1.] state-sponsored terrorism. See TERRORISM. "While the statutes in effect in some jurisdictions speak in states' rights. (1839) Under the Tenth Amendment, terms of a state of the art defense, statutes in other juris­ rights neither conferred on the federal government nor dictions provide that state of the art evidence is admissible or may be considered by the trier of fact by statute, and forbidden to the states. [Cases: States (;:::-)4.16.] that in determining whether a product was in a defective condition or unreasonably dangerous at the time It left the , State Street Bank. Patents. A landmark 1998 decision in control ofthe manufacturer or seller, consideration is given i the Federal Circuit that made it easier to get patents on to the state of scientific and technical knowledge avail­ computer software, and also rejected the long-accepted able to the manufacturer or seller at the time the product ! notion that business methods are per se unpatentable. was placed on the market, and to the customary designs, methods, standards, and techniques of manufacturing, • The court struck down per se rules against patent­ inspecting, and testing used by other manufacturers or ing mathematical algOrithms (the soul of software), sellers of similar products." 63AAm,Jur, 2d Products Liabil­ fOCUSing instead on whether the ultimate result was ity § 1319, at 472 (2008), useful, concrete, and tangible in practice. State Street state of the case. The posture oflitigation as it develops, Bank & Trust C. v. Signature Fin. Group, Inc., 149 F.3d as in discovery, at trial, or on appeal. , 1368 (Fed. Cir. 1998). [Cases: Patents C-~6.] State of the Union. See Presidential message under i state's ward. See ward of the state under WARD. MESSAGE. state tax. See TAX. state ofwar. A situation in which war has been declared state terrorism. See TERRORISM, or armed conflict is in progress. See WAR. [Cases: War and National EmergencyC=7.] state the question. Parliamentary procedure. (Of the state paper. l. A document prepared by or relating to a i chair) to formally state a motion as in order and ready for consideration. Cf. PUT THE QUESTION. state or national government and affecting the admin­ istration of that government in its political or interna­ state trial. See TRIAL. tional relations. 2. A newspaper officially designated for stateway, n. A governmental policy or law. - This term the publication of public statutes, resolutions, notices, is formed on the analogy offolkway. and advertisements. [Cases: Newspapers C= 1-7.J statim (stay-tim). [Latin] Hist. Immediately; at the state paper office. Hist. An office established in London earliest possible time when an act might lawfully be in 1578, headed by the Clerk of the Papers, to maintain completed. custody of state documents. station. 1. Social position or status. See STATUS. 2. A place state police. (1843) The department or agency of a state where military duties are performed or military goods government empowered to maintain order, as by inves­ are stored. 3. A headquarters, as of a police depart­ tigating and preventing crimes, and making arrests. ment. 4. A place where both freight and passengers state police power. (1849) The power of a state to enforce are received for transport or delivered after transport. laws for the health, welfare, morals, and safety of its [Cases: Railroads C=225.] 5. Civil law. A place where citizens, if enacted so that the means are reasonablv ships may safely travel. [Cases: Shipping C= 11.] calculated to protect those legitimate state interests .. Stationers' Company. Hist. An association of stationers state religion. See RELIGION. and their successors, formed in London in 1403 and state's attorney. l. See DISTRICT ATTORNEY. 2. See PROS­ granted a royal charter in 1557, entrusted, by order of ECUTOR (1). the Privy Council, with censorship ofthe press. - This company was the holder of the first rights we associate state seal. See great seal (2) under SEAL. today with copyright. state secret. (1822) A governmental matter that would be Stationers' Hall. Hist. The hall of the Stationers' a threat to the national defense or diplomatic interests Company, established in London in 1553, at which of the United States ifrevealed; information possessed every person claiming a copyright was reqUired to by the government and of a military or diplomatic register as a condition precedent to filing an infringe­ nature, the disclosure of which would be contrary to ment action. the public interest. - State secrets are privileged from disclosure by a witness in an ordinary judicial proceed­ "Accordingly 'Entered at Stationers' Hall' on the title page of books was a form of warning to pirates that the owner ing. Also termed governmental secret; government of the copyright could and might sue. This requirement secret. See executive privilege & state-secrets privilege disappeared with the Copyright Act, 1911." David M. Walker, under PRIVILEGE (3). [Cases: Privileged Communica­ The Oxford Companion to Law 1182 (1980). tions and Confidentiality C~.'360.1 Stationery Office. Hist. English law. A government office state-secrets privilege. See PRIVILEGE (3). established in 1786 as a department of the treasury, to state's evidence. See EVIDENCE. supply government offices (including Parliament) with state's evidence, turn. See TUR:--I STATE'S EVIDENCE. stationery and books, and to print and publish govern­

stationhouse

ment papers. - Also termed Her Majesty's Stationery Office. stationhouse. 1. A police station or precinct. 2. The lockup at a police precinct. stationhouse bail. See cash bail under BAIL (1). station-in-life test. Family law. An analysis performed by a court to determine the amount of money reason­ ably needed to maintain a particular person's accus­ tomed lifestyle .• The elements were first set forth in Canfield vs. Security-First Nat'l Bank, 87 P.2d 830, 840 (Cal. 1939). The court takes into account the person's station in society and the costs of the person's support in that station, including housing and related expenses, medical care, further education, and other reason­ ably necessary expenses, but not including luxuries or extravagant expenditures. See NECESSARIES (1), (2). [Cases: Divorce C='240(2); Husband and Wife C=' 19.] statist (stay-tist). 1. Archaic. A statesman; a politician. 2. A statistician. statistical-decision theory. (1966) A method for deter­ mining whether a panel ofpotential jurors was selected from a fair cross section of the community, by calculat­ ing the probabilities of selecting a certain number of jUroL from a particular group to analyze whether it is statistically probable that the jury pool was selected by mere chance .• This method has been criticized because a pool of potential jurors is not ordinarily selected by mere chance; potential jurors are disqualified for many legitimate reasons. See FAIR-CROSS-SECTION REQUIRE­ MENT; ABSOLUTE DISPARITY; COMPARATIVE DISPARITY; DUREN TEST. [Cases: Jury C='33(1.1, 1.2).] statuliber (stach-;)-h-b;)r), n. [Latin] Roman law. A person whose freedom under a will is made conditional or postponed; a person who will be free at a particu­ lar time or when certain conditions are met. - Also written statu liber (stay-t[y]00 h-b;)r).

"The statuliber is one who has freedom arranged to take effect on completion of a period or fulfillment of a con­ dition. Men become statuliberi as a result of an express condition, or by the very nature of the case. The meaning of 'express condition' presents no problem. The status arises from the very nature of the case when men are manumitted for the purpose of defrauding a creditor; for so long as it is uncertain whether the creditor will use his right, the men remain statuliberi, since fraud is taken in the lex Aelia Sentia to involve actual damage." Digest ofjustinian 40.7.1 (Paul, ad Sabinum 5).

status. (I7c) 1. A person's legal condition, whether personal or proprietary; the sum total of a person's legal rights, duties, liabilities, and other legal relations, or any particular group of them separately considered . 2. A person's legal condi­ tion regarding personal rights but excluding propri­ etary relations . 3. A person's capacities and incapacities, as opposed to other elements ofpersonal status . 4. A person's legal condition insofar as it is imposed by the law without the person's consent, as

1542

opposed to a condition that the person has acquired by agreement . "By the status (or standing) of a person is meant the position that he holds with reference to the rights which are recognized and maintained by the law - in other words, his capacity for the exercise and enjoyment of legal rights." James Hadley, Introduction to Roman Law 106 (1881). "The word 'status' itself originally signified nothing more than the position of a person before the law. Therefore, every person (except slaves, who were not regarded as persons, for legal purposes) had a status. But, as a result of the modern tendency towards legal equality formerly noticed, differences of status became less and less frequent, and the importance of the subject has greatly diminished, with the result that the term status is now used, at any rate in English Law, in connection only with those comparatively few classes of persons in the commu­ nity who, by reason of their conspicuous differences from normal persons, and the fact that by no decision of their own can they get rid of these differences, require separate consideration in an account of the law. But professional or even political differences do not amount to status; thus peers, physicians, clergymen of the established Church, and many other classes of persons, are not regarded as the subjects of status, because the legal differences which distinguish them from other persons, though substantial, are not enough to make them legally abnormal. And land­ owners, merchants, manufacturers, and wage-earners are not subjects of the Law of Status, though the last-named are, as the result of recent legislation, tending to approach that position." Edward Jenks, The Book of English Law 109 (P.B. Fairest ed., 6th ed. 1967).

status, law of. See LAW OF STATUS. STAT-USA. A unit in the U.S. Department of Commerce responsible for disseminating economics and trade information compiled by other federal agencies to busi­ nesses and individuals through subscription services and federal depository libraries .• STAT-USA is an agency within the Department's Economics and Sta­ tistics Administration. status crime. St:e CRIME. status de manerio (stay-t;)s dee m;)-neer-ee-oh). [Law Latin "the state of a manor"] Hist. The assembly of tenants to attend the lord's court. status offender. See OFFENDER. status offense. See OFFENSE (1). status-offense jurisdiction. See JURISDICTION. status of irremovability. Hist. A pauper's right not to be removed from a parish after residing there for one year. Cf. SETTLEMENT (6). status quo (stay-t;)s or stat-;)s kwoh). [Latin "statt: in which"] (1807) The situation that currently exists. status quo ante (stay-t;)s kwoh an-tee). [Latin "state in which previously"] (1877) The situation that existed before something else (being discussed) occurred. statutable (stach-;)-t;)-b;)l), adj. (I7c) 1. Prescribed or authorized by statute. 2. Conforming to the legislative requirements for quality, size, amount, or the like. 3. (Of an offense) punishable by law. See STATUTORY. statute. (I4c) A law passed by a legislative body; specif., legislation enacted by any lawmaking body, including legislatures, administrative boards, and municipal

1543

statute

courts. - The term act is interchangeable as a synonym. For each of the subentries listed below, act is some­ times substituted for statute. - Abbr. S.; stat. [Cases: Statutes "[Wle are not justified in limiting the statutory law to those rules only which are promulgated by what we commonly call 'legislatures.' Any positive enactment to which the state gives the force of a law is a 'statute,' whether it has gone through the usual stages of legislative proceedings, or has been adopted in other modes of expressing the will of the people or other sovereign power of the state. In an absolute monarchy, an edict of the ruling sovereign is statutory law. Constitutions, being direct legislation by the people, must be included in the statutory law, and indeed they are examples of the highest form that the statute law can assume. Generally speaking, treaties also are statutory law, because in this country, under the provisions of the United States Constitution, treaties have not the force of law until so declared by the representatives of the people." William M. Lile et aI., Brief Making and the Use of Law Books 8 (3d ed. 1914).

affirmative statute. (16c) A law requiring that some­ thing be done; one that directs the doing of an act. Cf. negative statute. always-speaking statute. See speaking statute. alltidejiciellcy statute. See antideficiency legislation under LEGISLATION. codifying statute. (1908) A law that purports to be exhaustive in restating the whole of the law on a par­ ticular topic, including prior caselaw as well as leg­ islative provisions. - Courts generally presume that a codifying statute supersedes prior caselaw. Cf. con­ solidating statute. compiled statutes. Laws that have been arranged by subject but have not been substantively changed; COMPILATION (2). Cf. revised statutes. ''The term 'compiled statutes' is properly applied to a methodical arrangement, without revision or reenact­ ment, of the existing statutes of a State, all the statutes on a given subject being collected in one place. The work is usually performed by private persons; and the former statutes, as they were before the compilation, remain the authority." Frank Hall Childs, Where and How to Find the Law 12 (1922).

consolidating statute. (1886) A law that collects the legislative provisions on a particular subject and embodies them in a Single statute, often with minor amendments and drafting improvements .• Courts generally presume that a consolidating statute leaves prior case1aw intact. Cf. codifying statute. "A distinction of greater importance in this field is that between consolidating and codifying statutes. A consoli· dating statute is one which collects the statutory provisions relating to a particular topic, and embodies them in a single Act of Parliament, making only minor amendments and improvements. A codifying statute is one which purports to state exhaustively the whole of the law on a particular subject (the common law as well as previous statutory pro­ visions). .. The importance of the distinction lies in the courts' treatment of the previous case law, the existence of special procedural provisions with regard to consolidating statutes and the existence of a presumption that they do not change the law." Rupert Cross, Statutory Interpretation 5 (1976).

construction statute. A legislative directive included in a statute, intended to guide or direct a court's inter­ pretation of the statute. _ A construction act can, for example, be a simple statement such as "The word 'week' means seven consecutive days" or a broader directive such as "Words and phrases are to be read in context and construed according to the rules of grammar and common usage. "Vords and phrases that have acquired a technical or particular meaning, whether by legislative definition or otherwise, are to be construed accordingly." [Cases: Statutes (:::> 179.] criminal statute. (18c) A law that defines, classifies, and sets forth punish ment for one or more specific crimes. See PENAL CODE. [Cases: Statutes C='24 1.] curative statute.!. An act that corrects an error in a statute's original enactment, usu. an error that inter­ feres with interpreting or applying the statute. Cf. validating statute. [Cases: Statutes (''-='236,278.11.] 2. See remedial statute. declaratory statute. (17c) A law enacted to clarify prior law by reconciling conflicting judicial decisions or by explaining the meaning of a prior statute. - Also termed expository statute. [Cases: Statutes C=>236, 278.11.] directory statute. (1834) A law that indicates only what should be done, with no proviSion for enforcement. Cf. mandatory statute: permissive statute. [Cases: Statutes C=>227.] disabling statute. (I8c) A law that limits or curbs certain rights. enabling statute. (18c) A law that permits what was previously prohibited or that creates new powers; esp., a congressional statute conferring powers on an executive agency to carry out various delegated tasks. [Cases: Administrative Law and Procedure C-::>305; Statutes (:':::>219.] expository statute. See declaratory statute. general statute. (16c) A law pertaining to an entire community or all persons generally. - Also termed public statute. See PUBLIC LAW (2). [Cases: Statutes C=>68.] imperfect statute. (1847) A law that prohibits, but does not render void, an objectionable transaction. - Such a statute provides a penalty for disobedience without depriving the violative transaction of its legal effect. local statute. 1. See LOCAL LAW (1). 2. See LOCAL I,AW (2).

mandatory statute. (18c) A law that requires a course ofaction as opposed to merely permitting it. Cf. direc­ tory statute; permissive statute. [Cases: Statutes 227.] model statute. See uniform statute. negative statute. (16c) A law prohibiting something; a law expressed in negative terms. Cf. affirmative statute.

1544

statute

nonclaim statute. (18c) 1. STATUTE OF LIMITATIONS. 2. A law that sets a time limit for creditors to bring claims against a decedent's estate .• Unlike a statute of limitations, a nonclaim statute is usu. not subject to tolling and is not waivable. [Cases: Executors and Administrators C-:::'223, 225.] organic statute. (1856) A law that establishes an admin­ istrative agency or local government. - Also termed organic act. Cf. ORGANIC LAW. penal statute. (16c) A law that defines an offense and prescribes its corresponding fine, penalty, or pun­ ishment. - Also termed penal law; punitive statute. [Cases: Statutes C:=>241.] "It is a familiar and well·settled rule that penal statutes are to be construed strictly, and not extended by implications, intendments, analogies, or equitable considerations. Thus, an offense cannot be created or inferred by vague implica­ tions. And a court cannot create a penalty by construction, but must avoid it by construction unless it is brought within the letter and the necessary meaning of the act creating it." Henry Campbell Black, Handbook on the Construction and Interpretation of the Laws 287 (1896).

permanent statute. See perpetual statute. permissive statute. A statute that allows certain acts but does not command them.• A permissive statute creates a license or privilege, or allows discretion in performing an act. Cf. directory statute; mandatory statute. [Cases: Statutes 0227.] perpetual statute. (16c) A law containing no provision for repeal, abrogation, or expiration. - Also termed permanent statute. Cf. temporary statute (1). personal statute. Civil law. A law that primarily affects a person's condition or status (such as a statute relating to capacity or majority) and affects property only incidentally. preceptive statute. A statute that is prescriptive, general, definite, and complete.• In form, a preceptive statute is similar to a rule. private statute. See special statute. prohibitive statute. A statute that forbids all acts that disturb society's peace or forbids certain acts on other grounds.• An example of a noncriminal prohibitive statute is one forbidding the execution of a mentally retarded criminal because a person who lacks mental capacity cannot understand the reason for the pun­ ishment. prospective statute. (1831) A law that applies to future events. public statute. See PUBLIC LAW (2). punitive statute. See penal statute. quasi-statute. An executive or administrative order, or a regulation promulgated by a governmental agency, that has the binding effect of legislation. [Cases: Administrative Law and Procedure C:=>417.] "Quasi-Statutes. Executive and administrative orders by the government as well as military regulations, while not called statutes, not originating as statutes usually do, are, nevertheless, in force and effect, laws. Copies of general orders and proclamations are issued to the public press for

publication, but military regulations may for public reasons be kept private." Jesse Franklin Brumbaugh, Legal Reason­ ing and Briefing 223 (1917).

real statute. Civil law. A law primarily affecting the operation, status, and condition of property, and addressing persons only incidentally. recording statute. See RECORDING ACT. reference statute. A law that incorporates and adopts by reference provisions of other laws. [Cases: Statutes C:=>51.] remedial statute. (18c) A law that affords a remedy. ­ Also termed curative statute. [Cases: Statutes C:=>236, 278.11.] repealing statute. A statute that revokes, and some­ times replaces, an earlier statute .• A repealing statute may work expressly or by implication. [Cases: Statutes 0151, 158.] restraining statute. See disabling statute. retroactive statute. See RETROACTIVE LAW. retrospective statute. See RETROACTIVE LAW. revised statutes. (18c) Laws that have been collected, arranged, and reenacted as a whole by a legisla­ tive body. - Abbr. Rev. Stat.; R.S. See CODE (1). Cf. compiled statutes. [Cases: Statutes C:=> 144-148, 231.] revival statute. (1899) A law that provides for the renewal of actions, of wills, and of the legal effect of documents.• A revival statute cannot resurrect a time-barred criminal prosecution. Stegner v. Cali­ fornia, 539 U.S. 607, 123 S.Ct. 2446 (2003). severable statute. (1930) A law that remains operative in its remaining provisions even if a portion of the law is declared unconstitutional. [Cases: Statutes (::::;, 64.] single·-act statute. See LONG-ARM STATUTE. speaking statute. (2000) A statute to be interpreted in light of the understanding of its terms prevailing at the time of interpretation. - Also termed always­ speaking statute. special statute. (17c) A law that applies only to specific individuals, as opposed to everyone. - Also termed private statute. [Cases: Statutes C:=>77-104.] "It is ancient wisdom, tracing back at least as far as the Roman taboo against the privilegium, that laws ought to be general, they ought to be addressed, not to par­ ticular persons, but to persons generally or to classes of persons (say, 'all householders'). Accordingly, a number of American states have inserted in their constitutions pro­ hibitions against 'private or special' statutes. These have given rise to endless difficulties."' Lon L. Fuller, Anatomy of the Law 102-03 (1968).

split-level statute. (1980) A law that includes officially promulgated explanatory materials in addition to its substantive provisions, so that courts are left with two levels of documents to construe. statute ofdescent and distribution. See STATUTE OF DISTRIBUTION.

1545

statute of distribution. See

statute of frauds STATUTE OF DISTRIBU­

TION.

statute offrauds. See STATUTE OF FRAUDS. temporary statute. (17c) I. A law that specifically provides that it is to remain in effect for a fixed, limited period. Cf. perpetual statute. [Cases: Statutes C=> 172.] 2. A law (such as an appropriation statute) that, by its nature, has only a Single and temporary operation. uniform statute. A law drafted with the intention that it will be adopted by aU or most of the states; esp., UNIFORM LAW. - Also termed model statute; uniform act. Cf. MODEL ACT. [Cases: Statutes (>='226.] validating statute. (1882) A law that is amended either to remove errors or to add provisions to conform to constitutional requirements. - Also termed valida­ tion statute. Cf. curative statute. [Cases: Statutes 52,236.] statute book. (16c) A bound collection of statutes, usu. as part of a larger set of books containing a complete body of statutory law, such as the United States Code Annotated. statute fair. Hist. A fair during which the fixed labor rates were announced and laborers ofboth sexes offered themselves for hire. Also termed mop fair. statute law. See STATUTORY LAW. statute-making. See LEGlSLATIO~ (1). statute merchant. Hist. 1. (cap.) One of two 13th-century statutes establishing procedures to better secure and recover debts by, among other things, providing for a commercial bond that, if not timely paid, resulted in swift execution on the debtor's lands, goods, and body. 13 Edw. I, ch. 6 (1283); 15 Edw. I, ch. 6 (1285).• These statutes were repealed in 1863. Also termed pocket judgment. 2. The commercial bond so established. Cf. STATUTE STAPLE.

"It is not a little remarkable that our common law knew no process whereby a man could pledge his body or liberty for payment of a debt .... Under Edward I, the tide turned. In the interest of commerce a new form of security, the so-called 'statute merchant: was invented, which gave the creditor power to demand the seizure and imprisonment of his debtor's body." 2 Frederick Pollock & Frederic W. Maitland, The History of English Law Before the Time of Edward /596-97 (2d ed. 1899).

statute mile. See MILE (1). Statute of Accumulations. Hist. A statute forbidding the accumulation, beyond a certain period, ofproperty settled by deed or will. 39 & 40 Geo. 3, ch. 98 (1800). Statute ofAllegiance de Facto. Hist. A statute requiring subjects to give allegiance to the actual (de facto) king, and protecting them in so doing. 11 Hen. 7, ch. 1. Statute of Amendments and Jeofails (jef-aylz). Hist. One of several 15th- and 16th-century statutes allowing a party who acknowledges a pleading error to correct it. 1 Hen. 5, ch. 5 (1413); 32 Hen. 8, ch. 30 (1540); 37 Hen. 8, ch. 6 (1545). See JEOFAIL.

Statute of Anne. Hist. English law. 1. The Copyright Act of 1709, which first granted copyright protection to book authors. 8 Anne, ch. 19 (1709). 2. The statute that modernized the English bankruptcy system and first introduced the discharge of the debtor's existing debts. 4 Anne, ch. 17 (1705). statute of bread and ale. See ASSISA PANIS ET CEREVI­ SlAB.

statute of distribution. (I8c) A state law regulating the distribution of an estate among an intestate's heirs and relatives.• Historically, the statute specified separate, and often different, patterns for distributing an intes­ tate's real property and personal property. Generally, land descended to the heirs and personalty descended to the next of kin. Also termed statute of descent and distribution. [Cases: Descent and Distribution 1-43.] Statute of Elizabeth. Hist. English law. A 1571 penal statute that contained provisions against conveyances made to defraud creditors. 13 Eliz., ch. 5.• The funda­ mental provisions of this statute formed the basis for modern laws against fraudulent conveyances. statute of frauds. (18c) 1. Hist. (cap.) A 1677 English statute that declared certain contracts judicially unen­ forceable (but not void) if they were not committed to writing and Signed by the party to be charged.• The statute was entitled "An Act for the Prevention of Frauds and Perjuries" (29 Car. 2, ch. 3). - Also termed Statute of Frauds and Perjuries. "The best known, and until recently, most important. Act prescribing written formalities for certain contracts only required that those contracts should be evidenced in writing, or to put it another way, that the contract would be unenforceable in a Court (but not \loid) in the absence of writing. This was the Statute of Frauds 1677, sections 4 and 17 of which required written evidence of a somewhat curious list of contracts. Today, all that is left of these pro­ visions is that part of section 4, which requires contracts of guarantee to be evidenced in writing, and section 40 of the Law of Property Act 1925 (replacing another part of section 4), which deals with contracts of sale of an interest in land." P.S. Atiyah. An Introduction to the Law of Contract 141 (3d ed. 1981).

2. A statute (based on the English Statute of Frauds) deSigned to prevent fraud and perjury by requiring certain contracts to be in writing and signed by the party to be charged .• Statutes of frauds traditionally apply to the following types of contracts: (1) a contract for the sale or transfer of an interest in land, (2) a contract that cannot be performed within one year of its making, (3) a contract for the sale of goods valued at $500 or more, (4) a contract of an executor or adminis­ trator to answer for a decedent's debt, (5) a contract to guarantee the debt or duty of another, and (6) a contract made in consideration of marriage. UCC § 2-201. Abbr. S/F; SOF. [Cases: Frauds, Statute of~'"')1-118.1 "[Tlhe primary theory of statutes of frauds, past and present, is that they are means to the end of preventing successful courtroom perjury. The means to this end is simply the requirement of a writing signed by the party to be charged.... [Blut the statute of frauds writing require­ ment is ... so far from any kind of guarantee against

Statute of Frauds and Perjuries successful perjury that it is inappropriate even to call it a means to fraud prevention at all." 1 james j. White & Robert S. Summers, Uniform Commercial Code § 2-8, at 82 (4th ed. 1995).

Statute of Frauds and Perjuries. See STATUTE OF FRAUDS (1). Statute of Gloucester (glos-tJr). Hist. English law. A 1278 statute providing for the award of costs in legal actions. 6 Edw., ch. 1. statute of jeofails (jef-aylz). A law permitting a litigant to acknowledge an error in a pleading and correct or amend the pleading without risking dismissal of the claim. See JEOFAIL. statute of limitations. (lSc) 1. A law that bars claims after a specified period; speci£., a statute establishing a time limit for suing in a civil case, based on the date when the claim accrued (as when the injury occurred or was discovered) .• The purpose of such a statute is to require diligent prosecution of known claims, thereby providing finality and predictability in legal affairs and ensuring that claims will be resolved while evidence is reasonably available and fresh. - Also termed nonclaim statute; limitations period. [Cases: Limita­ tion of Actions ~ 1.1 "Statutes of limitations, like the equitable doctrine of laches, in their conclusive effects are designed to promotejustice by preventing surprises through the revival of claims that have been allowed to slumber until evidence has been lost, memories have faded, and witnesses have disappeared."

Order of R.R. Telegraphers v. Railway Express Agency, 321 U.S. 342, 348-49,64 S.Ct. 582, 586 (1944).

2. A statute establishing a time limit for prosecuting a crime, based on the date when the offense occurred. Abbr. S/L; SOL. Cf. STATUTE OF REPOSE. [Cases: Criminal Law ~ 145.5-160.] "The purpose of a statute of limitations is to limit exposure to criminal prosecution to a certain fixed period of time following the occurrence of those acts the legislature had decided to punish by criminal sanctions. Such a limitation is designed to protect individuals from having to defend themselves against charges when the basic facts have become obscured by the passage of time and to minimize the danger of official punishment because of acts in the far­ distant past. Such a time limit may also have the salutary effect of encouraging law enforcement officials promptly to investigate suspected criminal activity." Toussie v. United States, 397 U.S. 112,90 S.Ct. 858 (1970).

Statute of Monopolies. Hist. A 1624 act of the English Parliament banning the Crown's practice of granting monopolies with the single exception ofletters patent, which gave an inventor the exclusive right to make and use the invention for 14 years. 21 Jac. 1, ch. 3. statute of mortmain. See MORTMAIN STATUTE. statute of repose. (l8c) A statute barring any suit that is brought after a specified time since the defendant acted (such as by designing or manufacturing a product), even if this period ends before the plaintiff has suffered a resulting injury. C£. STATUTE OF LIMITATIONS. [Cases: Limitation of Actions ~ 1.] "A statute of repose ... limits the time within which an action may be brought and is not related to the accrual of any cause of action; the injury need not have occurred,

1546 much less have been discovered. Unlike an ordinary statute of limitations which begins running upon accrual of the claim, the period contained in a statute of repose begins when a specific event occurs, regardless of whether a cause of action has accrued or whether any injury has resulted." 54 c.j.S. Limitations of Actions § 4, at 20-21 (1987).

Statute of Uses. Hist. An English statute of 1535 that con­ verted the equitable title held by a cestui que use (i.e., a beneficiary) to a legal one in order to make the cestui que use liable for feudal dues, as only a legal owner (the feoffee to uses) could be. 27 Hen. 8, ch. 10.• This statute was the culmination of a series of enactments designed by the Tudors to stop the practice of creating uses in land that deprived feudal lords of the valuable incidents of feudal tenure. The statute discouraged the granting of property subject to another's use by deeming the person who enjoys the use to have legal title with the right of absolute ownership and possession. So after the statute was enacted, if A conveyed land to B subject to the use of C, then C became the legal owner of the land in fee simple. Ultimately, the statute was circumvented by the courts' recognition ofthe use of equitable trusts in land-conveyancing. See CESTUI QUE USE; GRANT TO USES; USE

(4).

"The Statute of 27 H.8. hath advanced Uses, and hath established Surety for him that hath the Use against the Feoffees: for before the Statute the Feoffees were Owners of the Land, but now it is destroyed, and the cestuy que use is the Owner of the same: before the Possession ruled the Use, but since the Use governeth the Possession." William Noy, A Treatise of the Principal Grounds and Maxims of the Laws of This Nation 73 (4th ed. 1677; repro C. Sims ed., 1870).

Statute ofWestminster the First. See WESTMINSTER THE FIRST, STATUTE OF.

statute ofwills. (l7c) 1. (cap.) An English statute (enacted in 1540) that established the right of a person to devise real property by will. - Also termed Wills Act. 2. A state statute, usu. derived from the English statute, providing for testamentary disposition and if certain requirements for valid execution in that jurisdiction are met. [Cases: Wills ~ 1-20.] Statute of Winchester. See WINCHESTER, STATUTE OF. Statute of York. See YORK, STATUTE OF. statute roll. Hist. A roll upon which a statute was formally entered after receiving the royal assent. Statutes at Large. An official compilation of the acts and resolutions that become law from each session of Congress, printed in chronological order. statute staple. Hist. 1. A 1353 statute establishing pro­ cedures for settling disputes among merchants who traded in staple towns.• The statute helped mer­ chants receive swift judgments for debt. C£. STATUTE MERCHANT. 2. A bond for commercial debt. • A statute staple gave the lender a possessory right in the land of a debtor who failed to repay a loan. See STAPLE. "A popular form of security after 1285 ... was the ... 'statute staple' - whereby the borrower could by means of a registered contract charge his land and goods without giving up possession; if he failed to pay, the lender became a tenant of the land until satisfied .... The borrower

statutory period

1547 under a statute or recognizance remained in possession of his land, and it later became a common practice under the common-law forms of mortgage likewise to allow the mortgagor to remain in possession as a tenant at will or at sufferance of the mortgagee." J.H. Baker, An Introduction to English Legal History 354 (3d ed. 1990).

statuti (st80.] statutory bond. 1. See BOND (2). 2. See BOND (3). statutory burglary. See BURGLARY (2). statutory 4:onstruction. (1813) 1. The act or process of interpreting a statute. 2. Collectively, the principles developed by courts for interpreting statutes. Also termed statutory interpretation. See CONSTRUCTION (2). [Cases: Statutes (;:":::'·l74-247.] "[Tlhere is not, and probably never can be, anything meriting the description of a coherent body of case·law on statutory interpretation as a whole as distinct from the interpretation of a particular statute." Rupert Cross, Statu· tory Interpretation 39 (1976).

statutory contract. See CONTRACT. statutory crime. See CRIME. statutory damages. See DAMAGES. statutory dedication. See DEDICATION. statutory deed. See DEED. statutory disclaimer. See DISCLAIMER. statutory double patenting. See DOUBLE PATENTING. statutory double-patenting rejection. See REJECTION. statutory employee. See EMPLOYEE. statutory employer. See EMPLOYER. statutory exception. See EXCEPTION (2). statutory exclusion. Criminal procedure. The removal, by law, of certain crimes from juvenile-court jurisdic­ tion. _ Many states now remove certain particularly serious crimes committed by older juveniles from the jurisdiction ofthe juvenile courts. In this kind of case, the juvenile court never has jurisdiction, so a transfer

hearing is not required or necessary. Cf MANDATORY [Cases: Infants (;=>68.5, 68.7.] statutory exposition. (1854) A statute's special interpre­ tation ofthe ambiguous terms of a previous statute . statutory extortion. See EXTORTION. statutory forced share. See ELECTIVE SHARE. statutory foreclosure. See power-oj-sale Joreclosure under FORECLOSURE. statutory guardian. See GUARDIAN. statutory homestead. See constitutional homestead under HOMESTEAD. statutory insolvency. See BANKRUPTCY (3). statutory instrument. A British administrative regu­ lation or order; an order or regulation issued by an authority empowered by statute to do so, usu. to give detailed effect to the statute. statutory interpretation. See STATUTORY CONSTRUC­ WAIVER.

TION.

statutory invention registration. Patents. An official pro­ cedure for placing an invention in the public domain by publishing the patent abstract (which is included with the invention's original application) in the U.S. Patent and Trademark Office's Official Gazette, thus making the abstract a prior-art reference as of the application's filing date. - The process results in abandonment of the patent application. If an alternative form of disclosure is used, the prior-art references's effective date is the date of publication. 35 USCA § 157. Abbr. SIR. See DEFENSIVE DISCLOSURE. [Cases: Patents (;=> 115.] statutory law. (l7c) The body oflaw derived from statutes rather than from constitutions or judicial decisions. ­ Also termed statute law; legislative law; ordinary law. Cf. COMMON LAW (1); CONSTITUTIONAL LAW. statutory liability. See LIABILITY. statutory lien. See LIEN. statutory merger. See MERGER. statutory obligation. See OBLIGATION. statutory omnibus clause. See OMNIBUS CLAUSE. statutory partnership assodation. See PARTNERSHIP ASSOCIATION.

statutory penalty. See PENALTY (1). statutory period. 1. A time limit specified in a statute; esp., the period prescribed in the relevant statute of limitations. - This period includes, in addition to a fixed number of years, whatever time local law allows because of infancy, insanity, coverture, and other like circumstances. [Cases: Limitation of Actions 1.] 2. Patents. The time available to a patent applicant to answer an examiner's office action. - Since the six­ month period is set by statute, it cannot be extended but it can be shortened to as few as 30 davs. 35 USCA § 133. Cf. SHORTENED STATUTORY PERiOD. [Cases: Patents (;=> 104.]

statutory presumption

statutory presumption. See PRESUMPTION. statutory rape. See RAPE. statutory rate. See MECHANICAL ROYALTY. statutory receiver. See RECEIVER. statutory redemption. See REDEMPTION. statutory release. Hist. A conveyance superseding the compound assurance by lease and release, created by the Conveyance by Release Without Lease Act of 1841 (St. 4 & 5 Vict., ch. 21). statutory right of redemption. (1857) The right of a mortgagor in default to recover property after a fore­ closure sale by paying the principal, interest, and other costs that are owed, together with any other measure required to cure the default.• This statutory right exists in many states but is not uniform. See EQUITY OF REDEMPTION; REDEMPTION (4). [Cases: Mortgages (>591-624.] statutory share. See ELECTIVE SHARE. statutory staple. Hist. A writ to seize the lands, goods, and person of a debtor for forfeiting a statute staple. See STATUTE STAPLE. statutory subject matter. See PATENTABLE SUBJECT MATTER.

statutory successor. See SUCCESSOR. statutory tenant. See TENANT. statuto stapulae. See DE STATUTO STAPULAE. statutum (st~-t[y]oo-t~m), adj. Established; deter­ mined. statutum, n. 1. Hist. An act of Parliament, esp. one that has been approved by the monarch. Cf. ACTUS (2). 2. Roman law. An ordinance; esp., an imperial law. Statutum de Nova Custuma (st~-t[y]oo-t~m dee noh-v~ k;)s-ch~-m;) or k~s-tp-m~). See CARTA MERCATORIA. stay, n. (l6c) 1. The postponement or halting of a pro­ ceeding, judgment, or the like. 2. An order to suspend all or part of a judicial proceeding or a judgment resulting from that proceeding. - Also termed stay of execution; suspension ofjudgment. [Cases: Action (>67; Execution (> 158; Federal Civil Procedure (> 2700.] - stay, vb. - stayable, adj. automatic stay. Bankruptcy. A bar to all judicial and extrajudicial collection efforts against the debtor or the debtor's property, subject to specific statutory exceptions. 11 USCA §§ 362 (a)-(b) .• The policy behind the automatic stay, which is effective upon the filing of the bankruptcy petition, is that all actions against the debtor should be halted pending the deter­ mination of creditors' rights and the orderly admin­ istration of the debtor's assets free from creditor interference. - Also termed automatic suspension. [Cases: Bankruptcy (>2391-2404.] stay-away order. 1. In a domestic-violence case, an order forbidding the defendant to contact the victim. • A stay-away order usu. prohibits the defendant from coming within a certain number of feet of the victim's

1548

home, school, work, or other specific place. Stay-away orders are most often issued in criminal cases. [Cases: Breach ofthe Peace C=> 16.]2. RESTRAINING ORDER (1). 3. In a juvenile-delinquency case, an order prohibit­ ing a youthful offender from frequenting the scene of the offense or from being in the company of certain persons. - Also termed no-contact order; stay-away order ofprotection. stay of execution. See STAY. stay of mandate. 1. The suspension of a lower court's order of execution, imposed by a higher court. 2. An appellate court's suspension of its own judgment for reconsideration. stayor. Rare. Tennessee law. A surety for a judgment. stay-put rule. School law. The principle that a child must remain in his or her current educational placement while an administrative claim under the Individuals with Disabilities Education Act (usu. for an alternative placement or for mainstreaming) is pending. 20 USCA § 1415(j). [Cases: Schools (> 148(2.1).] STB. abbr. SURFACE TRANSPORTATION BOARD. STD. abbr. SEXUALLY TRANSMITTED DISEASE. steady course. Maritime law. A ship's path that can be readily ascertained either because the ship is on a straight heading or because the ship's future positions are easy to plot based on the ship's current position and movements. [Cases: Collision (>35-38.J steal, vb. (bef. 12c) 1. To take (personal property) illegally with the intent to keep it unlawfully. [Cases: Larceny (> 1.] 2. To take (something) by larceny, embezzle­ ment, or false pretenses. stealth. 1. Hist. Theft; an act or instance of stealing.• Etymologically, this term is the noun corresponding to the verb steal. "Stealth is the wrongful taking of goods without pretence of title: and therefore altereth not the property, as a trespass doth, so as upon an appeal the party shall re-have them." Sir Henry Finch, Law, ora Discourse Thereof210 (1759).

2. Surreptitiousness; furtive slyness. stealth juror. See JUROR. steganography (steg-~-nog-r~-fee), n. A cryptographic method that digitally embeds or encodes one item of information within another. • Because digitized audio or visual files usu. have unused data areas, indelible (and nearly undetectable) information can be added without altering the file's quality. Copyright or trade­ mark tags can be hidden in every fragment of a digital work, making disassociation almost impossible. - Also termed digital fingerprinting; digital watermarking. stellionatus (stel-ee-~-nay-t 1038; Constitutional Law (;:::>4040.] still, n. An instrument or apparatus used for making distilled liquor or alcohol. stillborn, adj. (Of an infant) born dead. Also termed deadborn. stillicidium (stil-J-sid-ee-Jm), n. [Latin fro stilla "a drop" + ,adere "to fall"] Roman law. Eavesdropping. See AQUAE IMMITTENDAE; servitus stillicidii under SERVITUS.

stilus curiae (stl-laS kyoor-ee-ee). [Law Latin] Hist. The form of court. sting. (1976) An undercover operation in which law­ enforcement agents pose as criminals to catch actual criminals engaging in illegal acts. stint. 1. English law. Limitation; restriction . "All these species, of pasturable common, may be and usually are limited as to number and time; but there are also commons without stint, and which last all the year." 2 William Blackstone, Commentaries on the Laws of Eng/and 34 (1766).

by one party, and an answer returned by the other .... Such forms as Spondesne mihi decem aureos dare (do you engage to give me ten aurei, or gold-pieces): answer, Spondeo (I engage) ...." James Hadley, Introduction to Roman Law 210 (1881). "The oldest Roman contract was the stipulatio, an oral promise made by an answer to an immediately preced­ ing question, with the promisor using the same verb. The contract was unilateral. Only one party, the promisor, was legally liable, and he was bound strictly by the words used." Alan Watson, Ancient Law and Modern Understanding 96 (1998).

stipulatio aquiliana (stip-ya-Iay-shee-oh J-kwil-ee­ ay-na). [Latin] Roman law. A type of stipulatio used to collect and discharge all the liabilities owed on various grounds by a single contract. "[S]tipulatio Aquiliana, a device credited to Aquilius Gallus, of Cicero's time. Where two persons with complex rela­ tions between them desired to square or simplify their accounts they could work out the items and arrive at the balance .... This balance being paid or otherwise arranged, each party would then make with the other this stipulatio, which was a comprehensive formula ... This would novate all the claims and turn them into a single promise, for an incertum. These mutual stipulations might then be released by acceptilatio." W.w. Buckland, A Manual of Roman Private Law 348 (2d ed. 1953).

stipulatio juris (stip-p-Iay-shee-oh joor-is). [Latin 2. A specific quantity of work; the time spent perform­ "stipulatio as to the law"] The parties' agreement on a ing a specific activity . question of law or its applicability.• The court is not stipend (stl-pend or -p;md). 1. A salary or other regular, bound to accept the stipulation if it is erroneous. But periodic payment. 2. A tribute to support the clergy, the parties are allowed to stipulate the law to be applied usu. consisting of payments in money or grain. [Cases: to a dispute. Religious Societies {P27(5).] stipulation (stip-YJ-Iay-sh;m), n. (I8c) 1. A material con­ stipendiary estate (su-pen-dee-er-ee). See ESTATE (1). dition or requirement in an agreement; esp., a factual representation that is incorporated into a contract as stipendiary magistrate. See MAGISTRATE. a term .• Such a contractual term often appears in soldier's regular pay. Cf. SALARIUM. a section of the contract called "Representations and stipes (stl-peez), n. [Latin "a trunk"] Hist. Family stock; a , Warranties." [Cases: Contracts (;::~ 173, 207, 218, source of descent or title. PI. stipites (stip-J-teez). 2. A voluntary agreement between opposing parties concerning some relevant point; esp., an agreement stipital (stip-i-tdl), adj. See STIRPITAL. relating to a proceeding, made by attorneys represent­ stipulated authority. See express authority under ing adverse parties to the proceeding .• A stipulation relating to a pending judicial DAMAGES. proceeding, made by a party to the proceeding or the party's attorney, is binding without consideration. stipulated judgment. See agreed judgment under [Cases: Stipulations JUDGMENT. "Breach of a stipulation should not be confused with mis­ stipulatio (stip-YJ-Iay-shee-oh), n. [Latin] Roman law. representation, which is a false statement made before An oral contract requiring a formal question and reply, or at the time the contract is made, and which induces binding the replier to do what was asked.• It is essen­ the contract; only if it is incorporated into the contract does it become a stipulation or term, the breach of which tial that both parties speak, and that the reply directly will entitle the injured party to pursue the usual remedies conforms to the question asked and is made with the which are available where there has been a breach of a intent to enter into a contractual obligation. No consid­ warranty or of a condition." 1 E.W. Chance, Principles of eration is required. See actio ex stipulatu under ACTIO. Mercantile Law 239 (P.W. French ed., 13th ed. 1950). PI. stipulationes (stip-YJ-Iay-shee-oh-neez). "Stipulations with respect to matters of form and procedure "[I]t must be remembered that the law·forms used by the Romans had their origin in times when writing was neither easy nor common. It is not surprising, therefore, that among them a form of spoken words, a verbal contract, should hold the place which among us is occupied by written notes. This form ... stipulatio was of a very simple character, consisting only of a question asked

serve the convenience of the parties to litigation and often serve to simplify and expedite the proceeding. In some cases they are supported by the policy of favoring com­ promise in order to reduce the volume of litigation. Hence they are favored by the courts and enforced without regard to consideration." Restatement (Second) of Contracts § 94 cmt. a (1979).

stock

1551

3. Roman law. A formal contract by which a promisor (and only the promisor) became bound by oral question and answer. _ By the third century A.D., stipulations were always evidenced in writing. See REUS PROM IT­ TEND!; REUS STIPULANDI. stipulate (stip-ya-layt), vb. - stipulative (stip-ya-l. 3. The capital or principal fund raised by a corporation through subscribers' contributions or the sale of shares 60.] 2. The total par value or stated value of this stock; CAPITALIZATION (4). 3. See common stock. cheap stock. Stock or stock options issued to the issuer's directors, employees, consultants, promoters, and the

like at a price lower than the public-offering price up to 12 months before the offering. common stock. A class of stock entitling the holder to vote on corporate matters, to receive dividends after other claims and dividends have been paid (esp. to preferred shareholders), and to share in assets upon liquidation.• Common stock is often called capital stock if it is the corporation's only class of stock out­ standing. - Also termed ordinary shares. Cf. pre­ ferred stock. [Cases: Corporations C=' 155.] convertible stock. See convertible security under SECURITY.

corporate stock. An equity security issued by a cor­ poration. cumulative preferred stock. Preferred stock that must receive dividends in full before common sharehold­ ers may receive any dividend .• If the corporation omits a dividend in a particular year or period, it is carried over to the next year or period and must be paid before the common shareholders receive any payment. - Also termed cumulative stock; cumula­ tive preference share. [Cases: Corporations C=' 156.] deferred stock. Stock whose holders are entitled to dividends only after the corporation has met some other specified obligation, such as the discharge of a liability or the payment of a dividend to preferred shareholders. discount stock. A stock share issued for less than par value.• Discount stock is considered a type ofwatered stock, the issuance of which may impose liability on the recipient for the difference between the par value and the cash amount paid. - Also termed discount share. donated stock. Stock donated to a charity or given to a corporation by its own stockholders, esp. for resale. equity stock. Stock of any class having unlimited dividend rights, regardless of whether the stock is preferred. floating stock. Stock that is offered for sale on the open market and that has not yet been purchased; the number of outstanding shares available for trading. full-paid stock. Stock on which no further payments can be demanded by the issuing company. - Also termed paid-up stock. [Cases: Corporations C='88, 89.]

glamour stock. See growth stock (2).

growth stock. 1. Stock issued by a growth company.

• Because a growth company usu. reinvests a large share of its income back into the company, growth stock pays relatively low dividends, though its price usu. has a relatively high appreciation in market value over time. 2. Stock that has produced or is expected to produce above-average returns and usu. receives small or no dividends. - Also termed glamour stock. guaranteed stock. Preferred stock on which a dividend is guaranteed by someone (usu. a parent corporation) other than the issuer. [Cases: Corporations C=' 156.]

guarantee stock. A fixed, nonwithdrawal investment in a building-and-Ioan association .• This type of stock guarantees to all other investors in the association a fixed dividend or interest rate. See BUILDING-AND­ LOAN ASSOCIATION. [Cases: Building and Loan Asso­ ciations C='7.] guaranty stock. A savings-and-loan association's stock yielding dividends to the holders after dividends have been paid to the depositors. [Cases: Building and Loan Associations C=' 11.] hot stock. See hot issue under ISSUE (2). inactive stock. A low-volume stock. income stock. A stock with a history of high yields or dividend payments (e.g., public utilities and well­ established corporations). issued stock. Capital stock that has been authorized and sold to subscribers, but may be reacquired, such as treasury stock. [Cases: Corporations C='n, 159.] joint stock. Capital invested in an unincorporated business and divided into shares proportionate to the size of each investment. [Cases: Joint-Stock Compa­ nies and Business Trusts C='5.] letter stock. See restricted security under SECURITY. listed stock. See listed security under SECURITY. margin stock. See marginable security under SECURITY.

nonassessable stock. Stock owned by a holder whose potential liability is limited to the amount paid for the stock and who cannot be charged additional funds to pay the issuer's debts .• Stock issued in the United States is usu. nonassessable. [Cases: Corporations C=', 78,175.] noncumulative preferred stock. Preferred stock that does not have to be paid dividends that are in arrears. • Once a periodic dividend is omitted, it will not be paid. - Also termed noncumulative stock. [Cases: Corporations C=' 156.] nonparticipating preferred stock. Preferred stock that does not give the shareholder the right to additional earnings - usu. surplus common-stock dividends ­ beyond those stated in the preferred contract. nonvoting stock. Stock that has no voting rights under most situations. [Cases: Corporations 68.] registered stock. See registered security under SECU­ RITY.

restricted stock. See restricted security under SECU­ RITY.

retired stock. See treasury stock. special stock. Hist. Corporate stock that guarantees investors an annual dividend and gives them creditor status to the extent that dividends have become payable.• In contrast, preferred-stock holders' claims for dividends payable are secondary to creditors' claims. Special stock was statutorily authorized only in Massachusetts. [Cases: Corporations (>::)7LJ subscribed stock. A stockholder's equity account shOWing the capital that will be contributed when the subscription price is collected. See SUBSCRIPTION (2). [Cases: Corporations (;::::88.]

tainted stock. Stock owned or transferred by a person disqualified from serving as a plaintiff in a derivative action.• A good-faith transferee is also disqualified from filing a derivative action. treasury stock. Stock issued by a company hut then reacquired and either canceled or held .• Some states have eliminated this classification and treat such stock as if it is authorized but unissued. - Also termed treasury security; treasury share; reacquired stock; retired stock. [Cases: Corporations (;::::72.J unissued stock. Stock that is authorized by the corpo­ rate charter but not yet distributed. unlisted stock. See unlisted security under SECURITY. volatile stock. Stock subject to wide and rapid fluctua­ tions in price. Also termed yo-yo stock. voting stock. Stock that entitIes the holder to vote in the corporation's election of directors and on other matters that are put to a vote. Also termed voting security. [Cases: Corporations (;:::: 197.J watered stock. Stock issued for less than par value. [Cases: Corporations (;::::99.J 'The term 'watered stock' is a colorful common law phrase describing the situation where shareholders receive shares without paying as much for them as the law requires .... Much of the early common law relating to watered shares concerned the liability of shareholders receiving watered shares to pay the additional conSideration needed to 'squeeze out the water.' ... [It nowl seems clear that a shareholder is liable to the corporation if he or she pays less for the shares than the conSideration fixed by the directors, and this liability is measured by the difference between the fixed consideration and the amount actually paid." Robert W. Hamilton, The Law of Corporations in a Nutshell 120-21 (3d ed. 1991).

whisper stock. The stock ofa company that is rumored to be the target of a takeover attempt. yo-yo stock. See volatile stock. stock acquisition. See SHARE ACQUISITION. stock-appreciation right. (usu. pl.) A right, typically granted in tandem with a stock option, to be paid the option value (usu. in cash) when exercised along with the simultaneous cancellation of the option. - Abbr. SAR. [Cases: Corporations (;:::: 116.] stock association. See joint-stock company under COMPANY.

stock attribution. See ATTRIBUTION. stock bailout. A stock redemption in the form of a pre­ ferred stock dividend. stock/bond power. See STOCK POWER. stock bonus plan. A special type of profit-sharing plan in which the distribution of benefits consists of the employer-company's own stock. [Cases: Corporations (;::::308(1).] stockbroker. One who buys or sells stock as agent for another. Also termed account executive; account rep­ resentative. [Cases: Brokers

stock certificate

stock certificate. An instrument evidencing ownership of shares of stock. Also termed certificate ofstock; share certificate. [Cases: Corporations C:=>94.] face-amount certificate. 1. A certificate, investment contract, or other security representing an obligation by its issuer to pay a stated or determinable sum, at a fixed or determinable date or dates more than 24 months after the date of issuance, in consideration ofthe payment ofperiodic installments of a stated or determinable amount. - Also termed face-amount certificate ofthe installment type. 2. A security repre­ senting a similar obligation on the part ofthe issuer of a face-amount certificate, the consideration for which is the payment of a single lump sum. See 15 USCA § 80a-2(a)(15). Also termed fully paid face-amount certificate. periodic-payment-plan certificate. A certificate, investment contract, or other security providing for a series of periodic payments by the holder and rep­ resenting an undivided interest in certain specified securities or in a unit or fund of securities purchased wholly or partly with the proceeds of those payments. _ The term also includes any security whose issuer is also issuing the certificates described above and whose holder has substantially the same rights and privileges as those holders have upon completing the periodic payments for which the securities provide. See 15 USCA § 80a-2(a)(27). stock dearing. The actual exchange of money and stock between buyer and seller, typically performed by a dearing corporation. stock dearing corporation. A New York Stock Exchange subsidiary that is a central agency for securities deliver­ ies and payments between member firms. stock control. A system of inventory management by which a business maintains perpetual records of its inventory. stock corporation. See CORPORATION. stock dividend. See DIVIDEND. stock exchange. See SECURITIES EXCHANGE. stock-for-assets exchange. Mergers & acquisitions. A merger in which one corporation agrees to dissolve and transfers all or most of its assets to another corpora­ tion, which then distributes shares of its own stock to the dissolving corporation's shareholders. stock-for stock exchange. See stock swap under SWAP. stockholder. See SHAREHOLDER. stockholder derivative suit. See DERIVATIVE ACTION (1).

stockholder of record. The person who is listed in the issuer's books as the owner of stock on the record date. Also termed holder ofrecord; owner ofrecord; record owner. See record date under DAT£. [Cases: Cor­ porations 128.] stockholders' equity. See OWNERS' EQUITY.

1554

stockholder's liability. See shareholder's liability under LIABILITY.

stock insurance company. See INSURANCE COMPANY. stock in trade. 1. The inventory carried by a retail business for sale in the ordinary course of business. 2. The tools and equipment owned and used by a person engaged in a trade. 3. The equipment and other items needed to run a business. stock issue. See ISSUE (2). stockjobber. See JOBBER (2). stockjobbing, n. 'Ihe business of dealing in stocks or shares; esp., the buying and selling of stocks and bonds by jobbers who operate on their own account. - Also termed stockjobbery. stock-law district. See DISTRICT. stock life-insurance company. See INSURANCE COM­ PANY.

stock manipulation. See MANIPULATION. stock market. 1. See MARKET (5). 2. See MARKET (6). stock merger. See MERGER. stock note. See NOTE (1). stock option. 1. An option to buy or sell a specific quantity of stock at a deSignated price for a specified period regardless of shifts in market value during the period. [Cases: Corporations C:=> 116.]2. An option that allows a corporate employee to buy shares of corporate stock at a fixed price or within a fixed period. - Such an option is usu. granted as a form of compensation and can qualify for special tax treatment under the Internal Revenue Code. Also termed (in sense 2) employee stock option; incentive stock option (ISO). nonqualified stock option. A stock-option plan that does not receive capital-gains tax treatment, thus allowing a person to buy stock for a period (often ten years) at or below the market Abbr. NQSO. [Cases: Internal Revenue qualified stock option. A now-rare stock-option plan that allows a person to buy stock for a period (often five years) at the market price, the stock being subject to capital-gains tax treatment. Internal Revenue C~3602.] stock-option contract. See CONTRACT. stock-parking, n. See PARKING (2). stock power. A power of attorney permitting a person, other than the owner, to transfer ownership of a security to a third party. Also termed stock/bond power. [Cases: Corporations stock-purchase plan. An arrangement by which an employer corporation allows employees to purchase shares of the corporation's stock. [Cases: Corporations ~116.1

stock redemption. See REDEMPTION (3). stock-redemption agreement. An agreement between a corporation's individual owners and the corporation

1555

itself, whereby the corporation agrees to purchase (Le., redeem) the stock of a withdrawing or deceased owner. ~ Often shortened to redemption agreement. Also termed stock-retirement agreement. [Cases: Cor­ 120.J porations stock repurchase. See REDEMPTION (3). stock-repurchase plan. A program by which a corpora­ tion buys back its own shares in the open market, usu. when the corporation believes the shares are under­ valued. stock-retirement agreement. See STOCK-REDEMPTION AGREEMENT.

stock right. See SUBSCRIPTION RIGHT. stocks, n. A punishment device consisting of two boards that together form holes for trapping an offender's feet and hands. Formerly also termed cippi. Cf. BILBOES (1); PILLORY.

stock sale. Mergers & acquisitions. A takeover in which the acquiring corporation buys stock directly from the target corporation's shareholders until it controls all or a majority of the target's stock. stock split. The issuance of two or more new shares in exchange for each old share without changing the proportional ownership interests of each shareholder. • For example, a 3-for-1 split would give an owner of 100 shares a total of 300 shares, or 3 shares for each share previously owned. A stock split lowers the price per share and thus makes the stock more attractive to potential investors. ~ Also termed share split. [Cases: Corporations reverse stock split. A reduction in the number ofa cor­ poration's shares by calling in all outstanding shares and reissuing fewer shares haVing greater value. [Cases: Corporations (;=>68.] stock subscription. See SUBSCRIPTION (2). stock swap. See SWAP. stock-transfer agent. See AGENT (2). stock-transfer tax. See TAX. stock warrant. See WARRANT (4). stolen property. (18c) Goods acquired by larceny, Receiving robbery, or theft. [Cases: Larceny Stolen Goods Robbery (;=>4.J stonewall, vb. To persistently refuse to cooperate in an investigation; esp., to refuse to testify or to hand over requested material until every available legal challenge has been exhausted. stonewalling, n. stool pigeon. Slang. 1. An informant, esp. a police infor­ mant. 2. A person who acts as a decoy, esp. on behalf ofa gambler or swindler, or for the police to help make an arrest. - Also termed (in sense 1) rat; (in sense 2) capper. stop, n. (16c) Under the Fourth Amendment, a tem­ porary restraint that prevents a person from walking away. [Cases: Arrest :::>63.5.]

store

stop and frisk, n. (1963) A police officer's brief detention, questioning, and search of a person for a concealed weapon when the officer reasonably suspects that the person has committed or is about to commit a crime. • The stop and frisk, which can be conducted without a warrant or probable cause, was held constitutional by the Supreme Court in Terry v. Ohio, 392 U.S. 1,88 S.Ct. 1868 (1968). - Also termed investigatory stop; investi­ gatory detention; Terry stop; field stop. See reasonable suspicion under SUSPICION. [Cases: Arrest (,'='63.5.] stopgap tax. See TAX.

stopgap zoning. See interim zoning under ZONING.

stop-limit order. See stop order under ORDER (8).

stop-list. Antitrust. An illegal means by which manu­ facturers sometimes attempt to enforce price mainte­ nance, by having suppliers agree among themselves not to supply any party who competes actively and breaks anticompetitive price "rules." stop-loss insurance. See INSURANCE. stop-loss order. See stop order under ORDER (8). stop-notice statute. (l963) A law proViding an alternative to a mechanic's lien by allowing a contractor, supplier, or worker to make a claim against the construction lender and, in some instances, the owner for a portion of the undisbursed construction-loan proceeds. See mechanic's lien under LIEN. [Cases: Mechanics' Liens (;=>, 113, 115.] stop order. 1. See ORDER (8). 2. An SEC order that suspends a registration statement containing false, incomplete, or misleading information. [Cases: Secu­ rities Regulation ~25.l6.]3. A bank customer's order instructing the bank not to honor one of the customer's checks. Also termed (in sense 3) stop-payment order. [Cases: Banks and Banking (;=> 139.] stoppage, n. (15c) 1. An obstruction or hindrance to the performance of some act <stoppage of goods or persons in transit for inspection>. 2. Civil law. SETOFF <stoppage in pay for money owed>. stoppage in transitu (in tran-si-t[yJoo ortranz-i-t[y]oo). (18c) The right of a seller of goods to regain possession of those goods from a common carrier under certain circumstances, even though the seller has already parted with them under a contract for sale.• This right traditionally applies when goods are consigned wholly or partly on credit from one person to another, and the consignee becomes bankrupt or insolvent before the goods arrive in which event the consignor may direct the carrier to deliver the goods to someone other than the consignee (who can no longer pay for them), ­ Also termed stoppage in transit. See RECLAMATION (2). [Cases: Sales (;=>289-299.] stop-payment order. See STOP ORDER (}). store, n. (13c) 1. A place where goods are deposited for purchase or sale. 2. (usu. pl.) A supply of articles provided for the subsistence and accommodation of a ship's crew and passengers. 3. A place where goods or supplies are stored for future use; a warehouse.

store public store. A government warehouse administratively maintained, as for the storage of imported goods or military supplies. store, vb. (l3c) To keep (goods, etc.) in safekeeping for future delivery in an unchanged condition. stored-value card. A device that provides access to a specified amount of funds for making payments to others, is the only means of routine access to the funds, and does not have an associated account in the name of the holder.• Typically, a consumer pays a bank or merchant money in exchange for a stored-value card; the consumer uses the card rather than paper currency to purchase goods and services. - Also termed smart card; prepaid card; value-added card. store-receiver exemption. See AIKEN EXEMPTION. stouthrief. Scots law. Robbery that takes place in or near one's dwelling, but is not coupled with housebreak­ ing. stowage (stoh-ij). Maritime law. 1. The storing, packing, or arranging of cargo on a vessel to protect the goods from friction, bruising, or water damage during a voyage.• The bill of lading will often prescribe the method of stowage to be used. [Cases: Shipping ~ 110.] 2. The place (such as a ship's hull) where goods are stored. [Cases: Shipping ~ 110, 123.] 3. The goods so stored. 4. A fee paid for the storage of goods; a storage fee. stowaway. A person who hides on board an outgoing or incoming vessel or aircraft to obtain free passage. 18 USCA § 2199. [Cases: Aliens, Immigration, and Citi­ zenship ~255, 265; Aviation ~ 17.] STR. abbr. SUSPICIOUS-TRANSACTION REPORT. straddle, n. In securities and commodities trading, a sit­ uation in which an investor holds contracts to buy and to sell the same security or commodity, thus ensuring a loss on one of the contracts .• The aim ofthis strategy is to defer gains and use losses to offset other taxable income. - Also termed spread eagle; combination. ­ straddle, vb.

straight annuity. See ANNUITY. straight bankruptcy. See CHAPTER 7 (2). straight bill oflading. See BILL OF LADING. straight deductible. See DEDUCTIBLE. straight letter of credit. See LETTER OF CREDIT. straight life annuity. See nonrefund annuity under ANNUITY.

straight life insurance. See whole life insurance under LIFE INSURANCE.

straight-line depreciation method. See DEPRECIATION METHOD.

straight-line interest. See simple interest under INTEREST (3).

straight mortgage. See MORTGAGE. straight sentence. See determinate sentence under SENTENCE.

1556

straight-term mortgage. See interest-only mortgage under MORTGAGE. straight up. See s.u. straight voting. See noncumulative voting under VOTING.

strain theory. (l8c) The theory that people commit crimes to alleviate stress created by the disjunction between their station in life and the station to which society has conditioned them to aspire. Cf. CONTROL THEORY; RATIONAL-CHOICE THEORY; ROUTINE-ACTIV­ ITIES THEORY.

stramineus homo (stra-min-ee-as hoh-moh). [Latin "man of straw"] See STRAW MAN.

strand, n. (bef. 12c) A shore or bank of an ocean, lake, river, or stream. stranding, n. Maritime law. A ship's drifting, driving, or running aground on a strand .• The type of strand­ ing that occurs determines the method of apportion­ ing the liability for any resulting losses. [Cases: Salvage ~9,30.]

accidental stranding. Stranding caused by natural forces, such as wind and waves. - Also termed invol­ untary stranding. See general average and particular average under AVERAGE. "Damage to a vessel from involuntary stranding or wreck, and the cost of repairs, are particular average only. Where, however, the ship and cargo are exposed to a common peril by the accidental stranding, the expenses of unloading and taking care of the cargo, rescuing the vessel, reloading the cargo, and other expenses other than repairs requisite to enable the vessel to proceed on the voyage, are brought into general average, proVided the vessel and cargo were saved by the same series of measures during the continu­ ance of the common peril which created the joint necessity for the expenses." 70 Am.Jur. 2d Shipping § 961, at 1069 (1987).

voluntary stranding. Stranding to avoid a more dan­ gerous fate or for fraudulent purposes. "The loss occurring when a ship is voluntarily run ashore to avoid capture, foundering, or shipwreck is to be made good by general average contribution, if the ship is afterwards recovered so as to be able to perform its voyage, as such a claim is clearly within the rule that whatever is sacrificed for the common benefit of the associated interests shall be made good by all the interests exposed to the common peril which were saved from the common danger by the sacrifice .... A vessel cannot, however, claim contribu­ tion founded on even a voluntary stranding made neces­ sary by ... unseaworthiness or the negligence ofthose in charge, except in pursuance of a valid agreement to that effect." 70 Am.Jur. 2d Shipping § 961, at 1069 (1987).

stranger. (14c) 1. One who is not party to a given trans­ action; esp., someone other than a party or the party's employee, agent, tenant, or immediate family member. [Cases: Contracts ~ 185.]2. One not standing toward another in some relation implied in the context; esp., one who is not in privity. 3. A person who voluntarily pays another person's debt even though the payor cannot be held liable for the debt and the payor's property is not affected by the creditor's rights .• Sub­ rogation does not apply to a stranger if the debtor did not agree to or assign subrogation rights.

stranger in blood. (17c) 1. One not related by blood, such as a relative by affinity. 2. Any person not within the consideration of natural love and affection arising from a relationship. stratagem. (l5c) A trick or deception to obtain an advan­ tage, esp. in a military conflict.

watercourse, usu. emptying into other bodies of water but not losing its character even if it breaks up or disap­ pears. [Cases: Waters and Water Courses C=:38.] private stream. A watercourse, the bed, channel, or waters of which are exclusively owned by private parties.

strategic alliance. (1983) A coalition formed by two or more persons in the same or complementary businesses to gain long-term financial, operational, or marketing advantages without jeopardizing competitive indepen­ dence . Cf. ALLIANCE (1); JOINT VENTURE;

stream-of-commerce theory. (1942) 1. The principle that a state may exercise personal jurisdiction over a defen­ dant if the defendant places a product in the general marketplace and the product causes injury or damage in the forum state, as long as the defendant also takes other acts to establish some connection with the forum state, as by advertising there or by hiring someone to serve as a sales agent there. Asahi Metal Indus. Co., Ltd. v. Superior Court of Cal., 480 U.S. 102, 107 S.Ct. 1026 (1987). [Cases: Corporations C:=>665(1); Courts 12(2.25); Federal Courts C:=>76, 81.] 2. The principle that a person who participates in placing a defective product in the general marketplace is strictly liable for harm caused by the product. Restatement (Second) of Torts § 402A (1979). [Cases: Products Liability C:=>

PARTNERSHIP.

Strategic National Stockpile. A national repository of medicines and healthcare supplies maintained jointly by the U.S. Department of Homeland Security and the U.S. Department of Health and Human Services to respond to public-health emergencies. - Created as the National Pharmaceutical Stockpile in 1999, the agency caches antibiotics, chemical antidotes, antitoxins, life­ support medications, IV administration, airway main­ tenance supplies, and medical supplies. - Abbr. SNS. stratocracy (strd-tok-rd-see). A military government. strator (stray-tdr). Hist. A surveyor of the highways. straw bail. See bail common under BAIL (4). straw bond. See BOND (2). straw man. (1896) 1. A fictitious person, esp. one that is weak or flawed. 2. A tenuous and exaggerated counter­ argument that an advocate makes for the sole purpose of disprOVing it. - Also termed straw-man argument. 3. A third party used in some transactions as a tempo­ rary transferee to allow the principal parties to accom­ plish something that is otherwise impermissible. 4. A person hired to post a worthless bail bond for the release of an accused. Also termed stramineus homo. Cf.DUMMY.

straw-man scam. Criminal law. A scheme in which an innocent third person is hired to receive fraudulently obtained money and wire it to a location outside the country. straw poll. A nonbinding vote, taken as a way of infor­ mally gauging support or opposition but usu. without a formal motion or debate. stray remarks. Employment law. Statements to or about an employee by a coworker or supervisor, concern­ ing the employee's race, sex, age, national origin, or other status, that are either objectively or subjectively offenSive, but that do not represent harassment or discrimination by the employer because of (1) their sporadic, unsystematic, and unofficial nature, (2) the circumstances in which they were made, or (3) their not showing any intention to hamper the employee's con­ tinued employment. Also termed stray comments. [Cases: Civil Rights C:~, 1147, 1543.] stream. Anything liquid that flows in a line or course; esp., a current of water consisting of a bed, bank, and

164.]

street. A road or public thoroughfare used for travel in an urban area, including the pavement, shoulders, gutters, curbs, and other areas within the street lines. [Cases: Municipal Corporations 646.] street crime. See CRiME. street gang. See GANG. street name. A brokerage firm's name in which securities owned by another are registered. - A security is held by a broker in street name (at the customer's request) to simplify trading because no signature on the stock certificate is required. A street name may also be used for securities purchased on margin. The word "street" in this term is a reference to Wall Street. street-name security. See nominee account under ACCOUNT.

street sweep. Mergers & acquisitions. Slang. A bidder's cancellation of a tender offer followed by the open­ market purchase oflarge blocks of stock in the target corporation. street time. Criminal law. The period between a person's release from prison on parole and a court's revocation of that parole.

strepitus judicialis (strep-~-t~s joo-dish-ee-ay-lis), n. [Law Latin] Hist. Disruptive behavior in court. strict, adj. (15c) 1. Narrow; restricted <strict construc­ tion>. 2. Rigid; exacting <strict statutory terms>. 3. Severe <strict punishment>. 4. Absolute; requiring no showing of fault <strict liability>. strict construction. See CONSTRUCTION. strict constructionism. See CONSTRUCTIONISM. strict constructionist. See CONSTRUCTIONIST. strict foreclosure. See FORECLOSURE. stricti juris (strik-tI joor-is). [Latin] 1. Of strict right of law; according to the exact law, without extension or enhancement in interpretation.• This term was often applied to servitudes because they are a restriction on the free exercise ofproperty rights. 2. Roman law. (Of a contract) required to be interpreted strictly on its terms, regardless of circumstances. See BONA FIDES (2). strict interpretation. See INTERPRETATION. strictissimi juris (strik-tis-~-mI joor-is). [Latin] Of the strictest right or law; to be interpreted in the strict­ est manner.• This term was usu. applied to certain statutes, esp. those imposing penalties or restraining natural liberties. strict liability. See LIABILITY. strict-liability crime. See CRIME. strict-liability offense. See OFFENSE (1). stricto jure (strik-toh joor-ee). [Latin] In strict law. strict products liability. See PRODUCTS LIABILITY. strict rule. See SPECIFIC-PURPOSE RULE. strict scrutiny. (1941) Constitutional law. The standard applied to suspect classifications (such as race) in equal­ protection analysis and to fundamental rights (such as voting rights) in due-process analysis .• Under strict scrutiny, the state must establish that it has a compel­ ling interest that justifies and necessitates the law in question. See COMPELLING-STATE-INTEREST TEST; SUSPECT CLASSIFICATION; FUNDAMENTAL RIGHT. Cf. INTERMEDIATE SCRUTINY; RATIONAL-BASIS TEST. [Cases: Constitutional Law C::= 3062,3901.] strict settlement. See SETTLEMENT (1). strict test. Evidence. The principle that disclosure of a privileged document, even when inadvertent, results in a waiver of the attorney-client privilege regarding the document, unless all possible precautions were taken to protect the document from disclosure. Cf. LENIENT TEST; HYDRAFLOW TEST. [Cases; Privileged Commu­ nications and Confidentiality strictum jus (strik-t~m j. 4. P~rliamentary law. A form of the motion to amend by deleting one or more words. See amendment by striking out under AMENDMENT (3). sight strike. The elimination of a veniremember based solely on appearance. See peremptory challenge under CHALLENGE

(2).

strike, vb. (14c) 1. (Of an employee or union) to engage in a strike . 2. To remove (a prospective juror) from a jury panel by a peremptory challenge or a challenge for cause . See peremptory challenge under CHALLENGE (2). [Cases: Jury (;:=:>83-142.] 3. To expunge, as from a record <motion to strike the prejudicial evidence>. [Cases: Federal Civil Procedure (;::;~201S.] 4. Parlia­ mentary law. To amend by deleting one or more words. See amendment by striking out under AMENDMENT (3). - Also termed (in sense 4) strike out. strikebreaker. See SCAB. strike down. (1894) To invalidate (a statute); to declare void. strike fund. A union fund that provides benefits to its members who are on strike, esp. for subsistence while the members are not receiving wages. strike off. 1. (Of a court) to order (a case) removed from the docket. 2. (Of an auctioneer or sheriff) to announce, usu. by the falling of the hammer, that an item of personal or real property has been sold. strike out. See STRIKE (4). strike price. See PRICE. strike suit. See SUIT. strike zone. Slang. The period in jury selection in which veniremembers are subject to being struck by peremp­ tory challenge before the jury is seated. _ If a court requires 12 jurors and allows each side 10 peremptory strikes, the strike zone would be the first 32 venire­ members. striking a jury. (1859) The selecting of a jury out of all the candidates available to serve on the jury; esp., the selecting of a special jury. See struck jury, special jury under JURY. [Cases: Jury C:)71.] striking off the roll. See DISBARMENT. striking price. See strike price under PRICE. string of title. See CHAIN OF TITLE (1). strip, n. (16c) 1. The act of separating and selling a bond's coupons and corpus separately. 2. The act of a tenant who, holding less than the entire fee in land, spoils or

unlawfully takes something from the land. [Cases: Landlord and Tenant (;:=:>55(2).] STRIP (strip). abbr. SEPARATE TRADING OF REGISTERED INTEREST AND PRINCIPAL OF SECURITIES.

stripped mortgage-backed security. See SECURITY. stripper well. See WELL, strip search. See SEARCH. strong-arm clause. See CLAUSE. strongly corroborated. (lSc) (Of testimony) supported from independent facts and circumstances that are powerful, satisfactory, and clear to the court and jury. strong mark. See strong trademark under TRADE­ MARK.

strong market. See bull market under MARKET. strong trademark. See TRADEMARK. struck jury. See JURY. struck off. 1. Removed from an active docket, usu. because ofa want ofprosecution or jurisdiction. [Cases: Trial G'-::>14.2. BrE. Removed from the register ofquali­ fied persons and, in the case of a professional, forbidden to practice. [Cases: Attorney and Client G~38, 39.] structural alteration. See ALTERATION (1). structural takeover defense. See TAKEOVER DEFENSE. structural unemployment. See UNEMPLOYMENT. structure. (15c) 1. Any construction, production, or piece of work artificially built up or composed of parts pur­ posefully joined together . 2. The organization of elements or parts . 3. A method of constructing parts . 2. To testify about one's own lack of mental capacity. 3. To contradict oneself, as by denying what one has already alleged. stultiloquium (st'll-ti-loh-kwee-. subjacent support. See SUPPORT (4). subject, adj. Referred to above; having relevance to the current discussion . subject, n. (14c) 1. One who owes allegiance to a sov­ ereign and is governed by that sovereign's laws . - Also termed (in sense 3) liability; susceptibility. subjective, adj. (ISc) 1. Based on an individual's per­ ceptions, feelings, or intentions, as opposed to exter­ nally verifiable phenomena . 2. Personal; individual <subjective judgments about popular music>. Cf. OBJECTIVE. subjective ethics. See MORAL RELATIVISM, subjective impossibility. See IMPOSSIBILITY. subjective meaning. See MEANING. subjective method. See SHERMAN-SORRELLS DOC~ TRINE.

subjective novation. See NOVATION. subjective standard. See STANDARD. subjective theory of contract. (192S) The doctrine (now largely outmoded) that a contract is an agree­ ment in which the parties have a subjective meeting of the minds. Often shortened to subjective theory. See MEETING OF THE MINDS. Cf. OBJECTIVE THEORY OF CONTRACT. [Cases: Contracts subject matter. 06c) 1. The issue presented for consid­ eration; the thing in which a right or duty has been asserted; the thing in dispute. 2. PATENTABLE SUBJECT MATTER. - Sometimes written (as a noun) subject­ matter. See SUBJECT (2); CORPUS (1). - subject-matter, adj. subject-matter jurisdiction. See JURISDICTION. subject-mauer-neutral. See NEUTRAL.

subject-matter test

subject-matter test. (1974) A method of determining whether an employee's communication with a corpora­ tion's lawyer was made at the direction of the employ­ ee's supervisors and in the course and scope of the employee's employment, so as to be protected under the attorney-client privilege, despite the fact that the employee is not a member of the corporation's control group. Harper & Row Pubs., Inc. v. Decker, 423 F.2d 487 (7th Cir. 1970), afT d per curiam by equally divided Court, 400 U.S. 348, 91 S.Ct. 479 (1971). - Also termed Decker test. Cf. CONTROL-GROUP TEST. [Cases: Privi­ leged Communications and Confidentiality (;::::; 123.] subject-matter waiver. See WAIVER (1). subject of an action. The right or property at issue in a lawsuit; the basis of a legal claim. Cf. object ofan action under OBJECT (2). [Cases: Action (;::::; 1.] subject of a right. (1876) 1. The owner of a right; the person in whom a legal right is vested. 2. OBJECT OF A RIGHT.

subject to liability, adj. (Of a person) susceptible to a lawsuit that would result in an adverse judgment; specif., having engaged in conduct that would make the actor liable for another's injury because the actor's conduct is the legal cause of the injury, the injured party having no disability for bringing the lawsuit. [Cases: Action (;::::; 14.] subject to open. (1906) Denoting the future interest of a class of people when this class is subject to a possible increase or decrease in number. sub judice (sdb joo-di-see also suub yoo-di-kay), adv. [Latin "under a judge"] (17c) Before the court or judge for determination; at bar .• Legal writers sometimes use "case sub judice" where "the present case" would be more comprehensible. subjugation. See DEBELLATIO. sublease, n. A lease by a lessee to a third party, convey­ ing some or all of the leased property for a term shorter than or equal to that of the lessee, who retains a rever­ sion in the lease. - Also termed subtenancy; deriva­ tive lease; and (esp. in England) underlease. [Cases: Landlord and Tenant (;::::;80.] - sublease, sublet, vb. sublessee. (1882) A third party who receives by lease some or all of the leased property from a lessee. - Also termed subtenant and (esp. in England) undertenant. [Cases: Landlord and Tenant (;::::;80.] sublessor. (1884) A lessee who leases some or all of the leased property to a third party. - Also termed (esp. in England) underlessor. [Cases: Landlord and Tenant (;::::; 80.] sublicense. (1880) A license or contract granting to a third party a portion or all of the rights granted to the licensee under an original license. submarine patent. See PATENT (3). submission, n. (14c) 1. A yielding, or readiness to yield, to the authority or will of another . 2. A contract

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in which the parties agree to refer their dispute to a third party for resolution . [Cases: Alternative Dispute Resolution (;::::; 160-174.] 3. An advocate's argument . - submit, vb. submission bond. See BOND (2). submission date. See DATE. submission of controversy. 1. The completion of the series of acts by which the parties to a particular dispute place any matter of real controversy existing between them before a court with jurisdiction for a final deter­ mination. 2. A statutory action in which the parties submit their dispute to a court that has jurisdiction, agree on and sign a statement of facts, swear that the controversy is real, and swear that the suit is brought in good faith. [Cases: Submission of Controversy (;::::; 1.] submission to a finding. The admission to facts sufficient to warrant a finding of guilt. - Also termed admission to sufficient facts. submission to the jury. (1818) The process by which a judge gives a case to the jury for its consideration and verdict, usu. after all evidence has been presented, arguments have been completed, and jury instructions have been given. submit, vb. To end the presentation of further evidence in (a case) and tender a legal position for decision . sub modo (sdb moh-doh). [Latin] Subject to a modifica­ tion or qualification . submortgage. See MORTGAGE. sub nomine (sdb nom-d-nee). [Latin] (1861) Under the name of.• This phrase, typically in abbreviated form, is often used in a case citation to indicate that there has been a name change from one stage of the case to another, as in Guernsey Memorial Hosp. v. Secretary of Health and Human Servs., 996 F.2d 830 (6th Cir. 1993), rev'd sub nom. Shalala v. Guernsey Memorial Hosp., 514 U.S. 87, US S.Ct. 1232 (1995). - Abbr. sub nom. subnotation. RESCRIPT (3). subordinate (sd-bor-dd-nit), adj. (15c) 1. Placed in or belonging to a lower rank, class, or position . 2. Subject to another's authority or control . subordinate (sd-bor-dd-nayt), vb. (17c) To place in a lower rank, class, or position; to assign a lower priority to <subordinate the debt to a different class of claims>. subordinated bond. See junior bond under BOND (3). subordinate debenture. See DEBENTURE. subordinate debt. See DEBT. subordinate legislation. See LEGISLATION.

1563

subordinate officer. See OFFICER (1). subordinate political power. See POLITICAL POWER. subordination, n. 1. The act or an instance of moving something (such as a right or claim) to a lower rank, class, or position <subordination of a first lien to a second lien>. [Cases: Secured Transactions 147.] 2. Parliamentary law. The status and relation of a lower­ ranking governing document to a higher-ranking one. _ A higher-ranking document supersedes and controls a subordinate document if there is any incon­ sistency between them. See governing document under DOCUMENT. - subordinate, adj. subordination clause. 1. In a legal instrument, a clause that explicitly acknowledges the one party's claim of interest is inferior to that of another party. 2. A covenant in a junior mortgage enabling the first lien to keep its priority in case of renewal or refinancing. 3. In a legal instrument, rCases: Mortgages a clause that explicitly subjects its provisions to those in a higher-ranking document. subordination agreement. See AGREEMENT. suborn (s;}-born), vb. [Latin subonare, from sub "secretly + ornare "to furnish; equip"] (l6c) 1. To induce (a person) to commit an unlawful or wrongful act, esp. in a secret or underhanded manner. 2. To induce (a person) to commit perjury. 3. To obtain (perjured tes­ timony) from another. - subornation (s;}b-or-nay­ sh;}n), n. - suborner (sa-bor-n;}r), n. subornation of perjury. (16c) The crime of persuading another to commit perjury. Sometimes shortened to subornation. [Cases: Perjury (;::::/ 13.] subparagraph form. A style of legal drafting that uses indented subparagraphs for enumerated items; esp., a style of drafting patent claims in this form so as to distinguish clearly between each of the claimed elements. - Also termed tabular form. Cf. COLON­ SEMICOLON FORM; OUTLINE FORM; SINGI.E-PARAGRAPH FORM.

subpartnership. See PARTNERSHIP. sub pede sigilli (s;}b pee-dee si-jil-I). [Latin] Under the foot of the seal. SUbpena. See SUBPOENA. subpermittee. See PERMITTEE. subpoena (s;}-pee-n2613(4).] subsequent creditor. See CREDITOR. subsequente copula (s"b-si-kwen-tee kop-p-Ia). [Law Latin] Hist. Carnal intercourse having followed. subsequent negligence. See NEGLIGENCE. subsequent-negligence doctrine. See LAST-CLEAR­ CHANCE DOCTRINE.

subsequent remedial measure. (usu. pl.) (1956) Evidence. An action taken after an event, which, if taken before the event, would have reduced the likelihood of the event's occurrence. _ Evidence of subsequent remedial measures, such as repairs made after an accident or the installation of safety equipment, is not admissible to prove negligence, but it may be admitted to prove ownership, control, feasibility, or the like. Fed. R. Evid. 407. [Cases: Evidence C='219.10.] subservant. See subagent under AGENT (2). subsidence (sab-srd-an[tls), n. Any downward movement of the soil from its natural position; esp., a sinking of soiL subsidiarie (sab-sid-ee-air-ee-ee). [Law Latin] Scots law. Subsidiarily. subsidiary (s"b-sid-ee-er-ee), adj. Subordinate; under another's controL See subsidiary corporation under CORPORATION.

subsidiary, n. See subsidiary corporation under CORPO­ RATION.

subsidiary corporation. See CORPORATION. subsidiary merger. See triangular merger under MERGER.

subsidiary motion. See MOTION (2). subsidy (s21.5(2).] countervailable subsidy (kown-t. suggestion on the record. A formal written or oral state­ ment informing the court of an important fact that sufficient cause. 1. See good cause under CAUSE (2). 2. may require a stay of proceedings or affect the court's PROBABLE CAUSE. decision.• Suggestions on the record include sugges­ sufficient consideration. See CONSIDERATION (1). tion of bankruptcy, suggestion of death, and sugges­ sufficient evidence. See satisfactory evidence under tion of error. EVIDENCE. suggestive interrogation. See LEADI~G QUESTION. suffragan (saf-ra-gdn or -jan). A titular bishop ordained suggestive mark. See suggestive trademark under TRADE­ to assist a bishop ofthe diocese in the church business; MARK. a deputy or assistant bishop.• Suffragans were origi­ suggestive name. See suggestive trademark under nally appointed only to replace absent bishops and were TRADEMARK. called chorepiscopi ("bishops of the county"), as distin­ guished from the regular bishops of the city or see. suggestive question. See LEADING QUESTION. suffrage (saf-rij). (14c) 1. The right or privilege ofcasting suggestive trademark. See TRADEMARK. a vote at a public election. - Also termed right to vote. sui. See SUI HEREDES. [Cases: Elections (;::=> L] suicide, n. (l7c) 1. The act of taking one's own life. ­ "In the United States suffrage is a privilege, franchise or Also termed self-killing; self-destruction; self-slaugh­ trust conferred by the people upon such persons as it

ter; self-murder;felony-de-se; death by one's own hand. deems fittest to represent it in the choice of magistrates or in the performance of political duties which it would [Cases: SuicideC=1.] be inexpedient or inconvenient for the people to perform assisted suicide. (1976) The intentional act of provid­ in a body. The person upon whom the franchise is con­ ing a person with the medical means or the medical ferred is called an elector or voter. No community extends suffrage to all persons, but places such restrictions upon it knowledge to commit suicide. Also termed assisted as may best subserve the ends of government." George W. self-determination; (when a doctor provides the McCrary, A Treatise on the American Law of Elections § 1, means) physician-assisted suicide. Cf. EUTHANASIA. at 2 (Henry L McCune ed., 4th ed. 1897).

2. A vote; the act of voting. suffragium (sa-fray-jee-am), n. [Latin "voting tablet"] Roman law. 1. A vote; the right to vote. 2. A recommen­ dation of someone for a special privilege or office. suggested retail price. See PRICE. suggestibility, n. The readiness with which a person accepts another's suggestion. - suggestible, adj. suggestio falsi (sag-jes-tee-oh faI-51 or fawl-sI). [Latin] A false representation or misleading suggestion. Cf. SUPPRESSIO VERI.

suggestion, n. (l4c) L An indirect presentation ofan idea 714.] "A summary of the argument. suitably paragraphed. The summary should be a clear and concise condensation of the argument made in the body of the brief; mere repeti­ tion ofthe headings under which the argument is arranged is not sufficient." Sup. Ct. R. 24.1(h).

summary of the invention. Patents. In a U.S. patent application, the section that describes the nature, oper­ ation, and purpose of the invention in enough detail that the examiner and anyone searching the patent lit­ erature for prior art can understand the unique char­ acter of the invention. [Cases: Patents ~99.] summary plan description. Under the Employee Retire­ ment Security Act (ERISA), an outline of an employee benefit plan, containing such information as the identity of the plan administrator, the requirements for eligibility and participation in the plan, circum­ stances that may result in disqualification or denial of benefits, and the identity of any insurers responsible for financing or administering the plan .• A summary plan description must generally be furnished to all employee-benefIt-plan participants and beneficiaries. 29 USCA § 1022. [Cases: Labor and Employment 483]- Abbr. SPD. summary procedure. See SHOW-CAUSE PROCEEDING. summary proceeding. See PROCEEDING. summary process. See PROCESS. summary trial. See summary proceeding under PRO­ CEEDING.

summation. See CLOSING ARGUMENT. summer associate. See CLERK (4). summer clerk. See CtERK (4).

summing up

summing up. 1. CLOSING ARGUMENT. 2. English law. A judge's review of the key points of evidence presented in a case and instructions to the jury on the law it is to apply to the evidence .• 'Ihe judge's summing up follows the advocates' dosing speeches. sum up, vb. summo jure (s;lm-oh ;oor-ee). [Latin] Hist. In the highest right. summon, vb. (Bc) To command (a person) by service ofa summons to appear in court. Also termed summons. [Cases: Witnesses (~7.1 summoneas (s-tor-eez sk;)-kair­ ee-I). [Law Latin] Hist. Exchequer officers who assisted in revenue collections by summoning defaulters to court. summons, n. (Bc) 1. A writ or process commencing the plaintiffs action and requiring the defendant to appear and answer. [Cases: Federal Civil Procedure C=>401; Process =>7.J 2. A notice requiring a person to appear in court as a juror or witness. [Cases: Jury (;:::~670); Witnesses C---=> 7.J 3. Hist. A writ directing a sheriff to summon a defendant to appear in court. 4. English law. The application to a common-law judge upon which an order is made. PI. summonses. alias summons. A second summons issued after the original summons has failed for some reason. [Cases: Process C=>45.] John Doe summons. 1. A summons to a person whose name is unknown at the time of service. [Cases: Federal Civil Procedure (;:::401; Process C=>28.] 2. Tax. A summons from the Internal Revenue Service to a third party to provide information on an unnamed, unknown taxpayer with potential tax liability. Also termed third-party record-custodian summons. [Cases: Internal Revenue C=>4493-4517.] judgment summons. A process used by a judgment creditor to start an action against a judgment debtor to enforce the judgment. [Cases: Judgment C=>854.] short summons. A summons haVing a response time less than that of an ordinary summons, usu. served on a fraudulent or nonresident debtor. [Cases: Process C:-:>33.] third-party record-custodian summons. See John Doe summons.

1574

summons, vb. (17c) 1. SIlMMON. 2. To request (informa­ tion) by summons. ''The horrible expression 'summonsed for an offence' (turning the noun 'summons' into a verb) has now become accepted usage, but 'summoned' remains not only allow· able but preferable." Glanville Williams, Learning the Law 15 n.28 (11th ed. 1982).

summum bonum (sam-;)m boh-n <superior force> <superior agent>. - superior, cargoes they export to foreign countries, to sell them there ' to the best advantage, and to purchase proper commodi­ n. ties to relade the ships on their return home. They usually superior agent. See high-managerial agent under AGENT go out with the ships on board of which the goods are embarked, and return home with them, and in this they differ from factors who live abroad .... The supercargo is the agent of the owners, and disposes of the cargo and makes purchases under their general instructions on his own responsibility." 70 Am.Jut. 2d Shipping§ 886, at 1025 (1987).

superductio (s[yloo-par-d~k-shee-oh), n. [Latin] Roman law. The obliteration ofpart ofa will or other document by writing over something erased within it. PI. super­ ductiones (s[y]oo-p;}r-ddk-shee-oh-neez). super eisdem deductis (s[y]oo-pdr ee-is-ddm di-dak-tis). [Law Latin] Hist. Upon the same grounds. superfeudation. See SUPERINFEUDATION. superficiarius (s[y]oo-par-fish-ee-air-ee-8; Divorce (>208,230.] child support. See CHILD SUPPORT.

family support. See FAMILY SUPPORT.

spousal support. See ALIMONY.

3. Basis or foundation. 4. The bracing of land so that it does not cave in because of another landowner's actions. - support, vb. lateral support. Support by the land that lies next to the land under consideration. - Also termed easement of natural support. [Cases: Adjoining Landowners (>2.]

subjacent support. Support by the earth that lies under­ neath the land under consideration. support agreement. Oil & gas. A contract between people or entities in the oil-and-gas industry to promote exploratory operations .• Generally, one party agrees to contribute money or property to another if the other will drill a well on leases that it holds and provide the contributing party with information from tests conducted. For the contributing party, a support agreement is a purchase of geological or technologi­ cal information. For the party receiving the support, the contribution lessens the cost or the risk of drilling operations. - Also termed contribution agreement. See DRY-HOLE AGREEMENT; BOTTOM-HOLE AGREEMENT; ACREAGE-CONTRIBUTION AGREEMENT. [Cases: Mines and Minerals (> 109.] support deed. See DEED. support obligation. (1938) A secondary obligation or let­ ter-of-credit right that supports the payment or perfor­ mance of an account, chattel paper, general intangible, document, healthcare-insurance receivable, instru­ ment, or investment property. UCC § 9-102(a)(53). support order. (1948) A court decree requiring a party (esp. one in a divorce or paternity proceeding) to make payments to maintain a child or spouse, includ­ ing medical, dental, and educational expenses. [Cases: Child Support (>8,223; Divorce (>208,230.] foreign support order. An out-of-state support order. [Cases: Child Support (>500-510; Divorce (> 388.] support price. See PRICE. support trust. See TRUST. suppositiou (S;)p-;)-zish-;m), n. An assumption that something is true, without proof of its veracity; the act of supposing. - suppose, vb. - supposable, adj.

1578

suppress, vb. To put a stop to, put down, or prohibit; to prevent (something) from being seen, heard, known, or discussed . - suppression, n. - suppressible, suppressive, adj. suppression hearing. See HEARING. suppression of evidence. (18c) 1. A trial judge's ruling that evidence offered by a party should be excluded because it was illegally acquired. [Cases: Criminal Law (> 394; Evidence (> 154.] 2. The destruction of evidence or the refusal to give evidence at a criminal proceeding.• This is usu. considered a crime. See OBSTRUCTION OF JUSTICE. [Cases: Obstructing Justice (>5.] 3. The prosecution's withholding from the defense of evidence that is favorable to the defendant. [Cases: Criminal Law (> 1990-2008.] suppressio veri (s;)-pres[h]-ee-oh veer-I). [Latin] Sup­ pression of the truth; a type of fraud. Cf. SUGGESTIO FALSI. supra (s[y]oo-pr;)). [Latin "above"] (15c) Earlier in this text; used as a citational Signal to refer to a previously cited authority. Cf. INFRA. supra citatum (s[y]oo-pr;) sr-tay-t;)m). [Law Latin] Hist. Above cited. - Abbr. sup. cit. supralegal, adj. Above or beyond the law . supranational, adj. Free of the political limitations of nations. supra protest. (Of a debt) under protest. See PROTEST (3).

supra riparian (soo-pr;) ri-pair-ee-;)n or rr-). (1857) Upper riparian; higher up the stream.• This phrase describes the estate, rights, and duties of a riparian owner whose land is situated nearer the source of a stream than the land it is compared to. supremacy. (16c) The position of having the superior or greatest power or authority. Supremacy Clause. (1940) The clause in Article VI of the U.S. Constitution declaring that the Constitution, all laws made in furtherance of the Constitution, and all treaties made under the authority of the United States are the "supreme law of the land" and enjoy legal supe­ riority over any conflicting provision of a state constitu­ tion or law. See PREEMPTION. [Cases: States (> 18.1.] supremacy oflaw. See RULE OF LAW (2). supreme, adj. (16c) (Of a court, power, right, etc.) highest; superior to all others. Supreme Civil Court in Scotland. See COURT OF SESSION (1).

supreme court. (17c) 1. (cap.) SUPREME COURT OF THE UNITED STATES. 2. An appellate court existing in most states, usu. as the court oflast resort. [Cases: Courts (>91(1).] 3. In New York, a court of general jurisdic­ tion with trial and appellate divisions .• The Court of Appeals is the court of last resort in New York. 4.

1579

SCPREME COURT OF JUDICATURE. Abbr. S.c.; S.Ct.; Sup. Ct. Supreme Court of Appeals. The highest court in West Virginia. [Cases: Courts (::::>252.] Supreme Court of Errors. Rist. Ihe court of last resort in Connecticut. _ The court is now called the Supreme Court. Supreme Court of Judicature. The highest court in England and Wales, consisting of the High Court of Justice, the Court of Appeal, and the Crown Court. - The Supreme Court was created under the Judica­ ture Act of 1873 that consolidated the existing superior courts, including the High Court of Chancery, the court of Queen's Bench, the court of Exchequer, the High Court of Admiralty, the court of Probate, and the London court ofBankruptcy. - Sometimes shortened to Supreme Court. Supreme Court of the United States. The court of last resort in the federal system, whose members are appointed by the President and approved by the Senate. - The Court was established in 1789 by Article III of the U.S. Constitution, which vests the Court with the "judicial power of the United States." - Often short­ ened to Supreme Court. - Also termed United States Supreme Court. (Cases: Federal Courts C=441.J Supreme Judicial Court. See COURT. supreme law of the land. (lSc) 1. The U.S. Constitu­ tion. [Cases: Constitutional Law (::::>502.]2. Acts of Congress made in accordance with the U.S. Constitu­ tion. 3. U.S. treaties. See SUPREMACY CLAUSE. supreme legislation. See LEGISLATION. supreme power. See sovereign political power under POLITICAL POWER. sur (s;)r). [Law French] Hist. Upon. - This term appears in various phrases, such as sur cognizance de droit ("upon acknowledgment of right"). surcharge, n. 1. An additional tax, charge, or cost, usu. one that is excessive. 2. An additional load or burden. 3. A second or further mortgage. 4. The omission of a proper credit on an account. 5. The amount that a court may charge a fiduciary that has breached its duty. 6. An overprint on a stamp, esp. one that changes its face value. 7. The overstocking of an area with animals. surcharge, vb. surcharge, vb. (15c) 1. To impose an additional (usu. excessive) tax, charge, or cost. 2. To impose an addi­ tionalload or burden. 3. (Of a court) to impose a fine on a fiduciary for breach of duty. 4. To overstock (an area) with animals. second surcharge. To overstock (a common) a second time for which a writ of second surcharge was issued. surcharge and falsify. To scrutinize particular items in an account to show items that were not credited as required (to surcharge) and to prove that certain items were wrongly inserted (to falSify) .• The courts of chancery usu. granted plaintiffs the opportunity

surety

to surcharge and falsify accounts that the defendant alleged to be settled. sur cui ante divortium (s;lr kI [or kWI or kwee] an-tee d;)-vor-shee-",m). See CUI ANTE DIVORTlUM. sur cui in vita (s;)£ kI [or kWI or kweel in VIol;)}. See CUI IN VITA. sur disclaimer. Rist. A writ brought by a lord against a tenant who has disclaimed tenure, to recover the land. surdus (sar-d;)s), n. [Latin] Roman law. A deaf person. _ A wholly deaf and mute person could not lawfully make a will before the time of Justinian, who modified the law. surety (shuur[-;)J-tee). (l4c) 1. A person who is primarily liable for paying another's debt or performing another's obligation. - Although a surety is similar to an insurer, one important difference is that a surety often receives no compensation for assuming liability. A surety differs from a guarantor, who is liable to the creditor only if the debtor does not meet the duties owed to the creditor; the surety is directly liable. Cf. GUARANTOR. [Cases: Principal and Surety~~l, 65, 66.] "The words surety and guarantor are often used indiscrimi· nately as synonymous terms; but while a surety and a guar­ antor have this in common, that they are both bound for another person, yet there are points of difference between them which should be carefully noted. A surety is usually bound with his prinCipal by the same instrument, executed at the same time and on the same consideration. He is an original promisor and debtor from the beginning, and is held ordinarily to know every default of this principal. Usually the surety will not be discharged, either by the mere indulgence of the creditor to the principal, or by want of notice of the default of the principal, no matter how much he may be injured thereby. On the other hand, the contract of the guarantor is his own separate undertaking, in which the principal does not join. It is usually entered into before or after that of the principal. and is often founded on a separate conSideration from that supporting the contract ofthe principal." 1 George W. Brandt, The Law ofSuretyship and Guaranty§ 2, at 9 (3d ed. 1905). "A surety, in the broad sense, is one who is liable for the debt or obligation of another, whether primarily or second· arily, conditionally or unconditionally. In other words, the term surety includes anyone who is bound on an obliga· tion which, as between himself and another person who is bound to the obligee for the same performance, the latter obligor should discharge. In this sense, suretyship includes all accessorial obligations. By such terminology, guaran­ tors and indorsers are kinds of sureties .... A surety, in the narrow sense, is one who is liable in form primarily on the debt or obligation of another. His obligation is acces· sorial to that of the principal debtor, but it is direct and not conditioned on the principal debtor'S default. In this sense, suretyship differs from guaranty and indorsement. which are conditional, secondary obligations .. _. The word surety is in the majority of American decisions used in the narrower sense to indicate a primary obligation to pay another's debt, to distinguish it from the secondary obliga· tion of a guarantor. This terminology has the advantage of indicating by the use of the one word 'surety' an obligation which is at once one to pay another's debt, but which at the same time is not conditioned upon another's default." Laurence P. 5im pson, Handbook on the Law of Suretyship 6, 8-9 (1950).

accommodation surety. See voluntary surety.

surety and fidelity insurance

compensated surety. A surety who is paid for becoming obliged to the creditor; esp., one that engages in the business of executing suretyship contracts in exchange for premiums, which are determined by an actuarial computation ofrisks. _ A bonding company is a typical example ofa compensated surety. Also termed commercial surety. cosurety. See COSURETY. gratuitous surety. A surety who is not compensated for becoming obliged to the creditor. _ Perhaps the most common example is the parent who signs as a surety for a child. subsurety. See SUBSURETY. supplemental surety. A surety for a surety. surety of the peace. Hist. A surety responsible for ensuring that a person will not commit a future offense. - It is required of one against whom there are probable grounds to suspect future misbehavior. See SUPPLICAVIT. voluntary surety. A surety who receives no consider­ ation for the promise to act as a surety. Also termed accommodation surety. 2. A formal assurance; esp., a pledge, bond, guarantee, or security given for the fulfillment of an undertak­ ing. surety and fidelity insurance. See fidelity insurance under INSURANCE. surety bond. See PERFORMANCE BOND. surety company. See COMPANY. surety insurance. See guaranty insurance under INSUR­ ANCE.

suretyship. 1. The legal relation that arises when one party assumes liability for a debt, default, or other failing ofa second party. - The liability of both parties begins simultaneously. In other words, under a contract of suretyship, a surety becomes a party to the principal obligation. [Cases: Principal and Surety (;=: 1,65,66.] 2. The lending of credit to aid a principal who does not have sufficient credit. _ The purpose is to guard against loss if the principal debtor were to default. 3. The position or status of a surety. involuntary suretyship. A suretyship that arises inci­ dentally, when the chief object of the contract is to accomplish some other purpose. [Cases: Principal and Surety personal suretyship. A suretyship in which the surety is answerable in damages. [Cases: Principal and Surety real suretyship. A suretyship in which specified property can be taken, but the surety is not answer­ able in damages. [Cases: Principal and Surety 65.] suretyship by operation oflaw. A suretyship that the law creates when a third party promises a debtor to assume and pay the debt that the debtor owes to a creditor. [Cases: Principal and Surety (;=: 14.)

1580

voluntary suretyship. A suretyship in which the chief object of the contract is to make one party a surety. surface. 1. Ihe top layer of something, esp. of land. 2. Mining law. An entire portion ofland, including mineral deposits, except those specifically reserved. - The meaning of the term varies, esp. when used in legal instruments, depending on the language used, the intention of the parties, the business involved, and the nature and circumstances of the transaction. 3. Mining law. The part of the geologic section lying over the minerals in question. surface casing. See CASING. surface-damage dause. Oil & gas. A lease provision requiring the lessee to pay the lessor or the surface­ interest owner for all or for a specified kind or degree of damage to the surface that results from oil-and-gas operations. Also termed location-damage clause; damages clause. [Cases: Mines and Minerals C=:' 120.) surface interest. Oil & gas. Every right in real property other than the mineral interest. - The surface-interest owner has the right to the surface subject to the right of the mineral-interest owner to use the surface. The surface-interest owner is entitled to all whatever non­ mineral substances are found in or under the soil. ­ Also termed surface right. Cf. MINERAL INTEREST; SUBSURFACE INTEREST. [Cases: Mines and Minerals (;=: 55(6).] surface issue. See ISSUE (1). Surface Transportation Board. A unit in the U.S. Department of Transportation responsible for the economic regulation of interstate surface transporta­ tion, primarily railroads. - Its jurisdiction includes railroad-rate and -service issues, railroad-company mergers and related labor matters; certain truck and ocean shipping rates; certain intercity bus-company structures; and certain pipeline matters not regulated by the Federal Energy Regulatory Commission. Abbr. STB. [Cases: Carriers'C=: 10.] surface water. See WATER. Surgeon General. (18c) 1. The chief medical officer of the U.S. Public Health Service or of a state public-health agency. 2. The chief officer of the medical departments in the armed forces. Abbr. SG. surmise (S80.J surrender by operation oflaw. (1836) An act that is an equivalent to an agreement by a tenant to abandon property and the landlord to resume possession, as when the parties perform an act so inconsistent with the landlord-tenant relationship that surrender is presumed, or when a tenant performs some act that would not be valid if the estate continued to exist. [Cases: Landlord and Tenant 109,110,194.] surrender clause. Oil & gas. A provision commonly found in oil-and-gas leases authorizing a lessee to release its rights to all or any portion of the leased property at any time and to be relieved of further obli­ gations on the acreage surrendered. [Cases: Mines and Minerals G':"::> 77.] surrenderee. One to whom a surrender is made. See SUR­ RENDER. surrenderer. See SURRENDEROR. surrender of a criminal. An officer's delivery of a prisoner to the authorities in the appropriate jurisdic­ tion. See EXTRADITION; RENDITION. [Cases: Extradition and Detainers C=> 16,36.] surrender ofa preference. Bankruptcy. The yielding ofa voidable conveyance, transfer, aSSignment, or encum­ brance by a creditor to the trustee as a condition of allowing the creditor's claim. [Cases: BankruptcyC:) 2824.J surrender of charter. Corporations. The dissolution of a corporation by a formal yielding of its charter to the state under which it was created and the subsequent acceptance of that charter by the state. [Cases: Corpo­ rations C=>61O(1).] "The surrender of a charter can be made only by some formal, solemn act of the corporation, and will be of no avail until accepted by the government. There must be the same agreement ofthe parties to dissolve that there was to form the compact. It is the acceptance which gives efficacy to the surrender. Consent of the state is sometimes by general statute." 19 Am. Jur. 2d Corporations § at 546 (1986).

surrender of copyhold. Rist. The transfer by a tenant of a copyhold estate by yielding it to the lord in trust for the transferee according to the terms in the surrender. • In normal practice, the tenant went to the steward of the manor and delivered a rod, a glove, or other cus­ tomary symbol, thereby conveying to the lord (through the steward) all interest and title to the estate, in trust, to be then granted by the lord to the transferee. See COPYHOLD. surrender of term. See SURRENDER (5). surrenderor. One who surrenders; esp., one who yields up a copyhold estate for conveyance. Also spelled surrenderer. See COPYHOLD. surrender to uses of will. Rist. A required yielding of a copyhold interest passed by will to the will's uses .• The requirement was abolished by St. 55 Geo. 3, ch. 192. surrender value. See cash surrender value UDder VALUE (2).

surreply. A movant's second supplemental response to another party's opposition to a motion. Sometimes written sur-reply. [Cases: Federal Civil Procedure 921.] surreptitious (s 15; Parent and Child gestational surrogacy. A pregnancy in which one woman (the genetic mother) prOVides the egg, which is fertilized, and another woman (the surrogate mother) carries the fetus and gives birth to the child. traditional surrogacy. A pregnancy in which a woman provides her own egg, which is fertilized by artificial insemination, and carries the fetus and gives birth to a child for another person. surrogacy contract. See SURROGATE-PARENTING AGREE­ MENT. surrogate (sar-.• Suspension may entail requiring the lawyer to pass a legal-ethics bar examination, or to take one or more ethics courses as continuing legal education, before being readmitted to active practice. [Cases: Licenses 38; Officers and Public Employees 65.J 4. The temporary withdrawal from employment, as distinguished from permanent severance <suspension from teaching without pay>. [Cases: Labor and Employment 825.J 5. Eccles. law. An ecclesiastical censure that can be temporary or per­ manent, and partial or complete. See DEPRIVATION. 6. Scots law. The process of staying a judgment pending an appeal to the Supreme Court. suspension of arms. See TRUCE. suspension of judgment. See STAY.

1585

suspension of trading. The temporary cessation of all trading of a particular stock on a stock exchange because of some abnormal market condition. suspensive appeal. See APPEAL. suspensive condition. See CONDITION (2). suspensive veto. See suspensory veto under VETO. suspensory veto. See VETO. sus. per coll. abbr. SUSPENDATUR PER COLLUM. suspicion. (14c) The apprehension or imagination of the existence of something wrong based only on inconclu­ sive or slight evidence, or possibly even no evidence. reasonable suspicion. (18c) A particularized and objective basis, supported by specific and articulable facts, for suspecting a person of criminal activity.• A police officer must have a reasonable suspicion to stop a person in a public place. See STOP AND FRISK. Cf. PROBABLE CAUSE. [Cases: Arrest suspicious-activity report. (1996) A form that, as of 1996, a financial institution must complete and submit to federal regulatory authorities if it suspects that a federal crime has occurred in the course of a monetary transaction.• This form superseded two earlier forms, the criminal-referral form and the suspicious-transac­ tion report. - Abbr. SAR. [Cases: Banks and Banking 151,188.5; United StatesC=34.] suspicious character. (18c) In some states, a person who is strongly suspected or known to be a habitual criminal and therefore may be arrested or required to give security for good behavior. suspicious-transaction report. (1993) A checkbox on IRS Form 4789 formerly (1990-1995) requiring banks and other financial institutions to report transactions that might be relevant to a violation of the Bank Secrecy Act or its regulations or that might suggest money­ laundering or tax evasion. _ This checkbox, like the criminal-referral form, has since been superseded by the suspicious-activity report. Abbr. STR. [Cases: Banks and Banking C:;:, 151.) sustain, vb. (Be) 1. To support or maintain, esp. over a long period <enough oxygen to sustain life>. 2. To nourish and encourage; lend strength to <she helped sustain the criminal enterprise>. 3. To undergo; suffer . 4. (Of a court) to uphold or rule in favor of . 5. To substantiate or corroborate <several witnesses sus­ tained Ms. Sipes's allegation>. 6. To persist in making (an effort) over a long period . - sustainment, sustentation, n. sustainable, adj. suthdure (suuth-door). Hist. Eccles. law. The south door of a church, where purgations and other acts were per­ formed and complaints were heard and resolved. suum cuique tribuere (s[y)oo-dm k[wJI-kwee tri-byoo­ dr-ee), vb. [Latin] Roman law. To render to every person his due.• This was one ofthe three general precepts in which Justinian expressed the requirements ofthe law. Cf. ALTERUM NON LAEDERE; HONESTE VIVERE.

c=

swearing behind

suus heres (s[y]OO-dS heer-eez). [Latin] Roman law. An heir in the power of the deceased, by whom accep­ tance of the inheritance was not necessary. See SUI HEREDES. suus judex (s[yJOO-dS joo-deks). [Law Latin] Hist. A proper judge in a cause. suzerain (soo-zd-rin or -rayn), n. [Law French] 1. Hist. A Crown tenant; a tenant in capite holding an estate immediately of the Crown. 2. Int' I law. A nation that exercises control over another nation's foreign rela­ tions. Also spelled suzereign. suzerainty (soo-zd-rin-tee or -rayn-tee). 1. Hist. The power of a feudal overlord to whom fealty is due. See FEALTY. 2. Int'llaw. The dominion of a nation that controls the foreign relations of another nation but allows it autonomy in its domestic affairs. "At the present time there appears to be no instance of a relation between states which is described as a suzerainty. The term was applied to the relation between Great Britain and the South African Republic, and also to that between Turkey and Bulgaria from 1878 to 1909, but it seems likely to disappear from diplomatic terminology." J.L. Brierly, The Law of Nations 128 (5th ed. 1955).

suzereign. See SUZERAIN. S.W. abbr. SOUTH WESTERN REPORTER. swamp and overflowed land. See LAND. swap, n. Commercial law. 1. An exchange of one security for another. 2. A financial transaction between two parties, usu. involVing an intermediary or dealer, in which payments or rates are exchanged over a specified period and according to specified conditions. currency swap. An agreement to swap specified payment obligations denominated in one currency for specified payment obligations denominated in a different currency.

stock swap. In a corporate reorganization, an exchange of one corporation's stock for another corporation's stock. Also termed stock10r-stock exchange. swarfmoney. Hist. A payment made in lieu ofthe service of maintaining a lord's castle. swatting, n. Slang. The act offalsely telephoning a report ofa serious crime or emergency in progress in order to provoke a response from a law-enforcement agency, esp. the dispatch ofa SWAT (Special Weapons and Tactics) team.• Swatting schemes are often elaborate, involv­ ing the use of electronic tools to mask the caller's true identity and location, such as VOice-changing devices, swatter, n. fake caller-IDs, and the like. swear, vb. (bef. 12c) 1. To administer an oath to (a 2. To take an oath. 3. To person). [Cases: Oath llse obscene or profane language. swearing behind. Patents. A patent applicant's shOWing that an invention was conceived of or reduced to practice before the effective date of a prior-art refer­ ence cited by a patent examiner as grounds for rejecting an application. 37 CFR § 1.131. - Also termed swearing behind the reference. See ANTEDATING OF A PRIOR­

swearing contest

ART REFERENCE.[Cases: Patents C:>91(.S).] - swear behind, vb. swearing contest. See SWEARING MATCH. swearing-in, n. (1900) The administration of an oath to a person who is taking office or testifying in a legal pro­ ceeding. See OATH. [Cases: Officers and Public Employ­ ees C=>36(l).] swearing match. (1907) A dispute in which determining a vital fact involves the credibility choice between one witness's word and another's the two being irrecon­ cilably in conflict and there being no other evidence. • In such a dispute, the fact-finder is generally thought to believe the more reputable witness, such as a police officer over a convicted drug-dealer. - Also termed swearing contest; oath against an oath. swearing the peace. Hist. 1he giving of proof to a mag­ istrate that one fears for one's own safety, so that the magistrate will order the troublemaker to keep the peace by issuing a supplicavit. See SUPPLICAVIT. swear out, vb. (1850) To obtain the issue of (an arrest warrant) by making a charge under oath . sweat equity. (1966) Financial equity created in property by the owner's labor in improving the property . sweating. (1824) Criminal procedure. The illegal interro­ gation of a prisoner by use of threats or similar means to extort information. sweat-of-the-brow doctrine. Copyright. The now­ discarded principle that copyrights can protect the labor and expense that went into a work, rather than the work's originality.• The Supreme Court rejected the sweat-of-the-brow doctrine in Feist Pubs., Inc. v. Rural Tel. Servs. Co., 499 U.S. 340, 111 S.Ct. 1282 (1991). Cf. SWEATWORK. [Cases: Copyrights and Intellectual Property C:> 12(1).] sweatshop. (1890) Slang. A business where the employees are overworked and underpaid in extreme conditions; esp., in lawyer parlance, a law firm that requires associ­ ates to work so hard that they barely (if at all) maintain a family or social life though the firm may, in return, pay higher salaries. sweatwork. Slang. A compilation, esp. a searchable computer database, that does not qualify for u.s. copy­ right protection because the underlying facts are not copyrightable and the compilation is not a nontrivial arrangement.• New forms of intellectual-property laws are aimed at protecting the "sweat-of-the-brow" investment that goes into compiling databases. Cf. SWEAT-OF- THE-BROW DOCTRINE. [Cases: Copyrights and Intellectual Property C:> 12(3).] sweeping, adj. 1. Comprehensive in scope <sweeping legislation>. 2. Overwhelming <sweeping voter turnout>. Sweeping Clause. See NECESSARY AND PROPER CLAUSE.

1586

sweepstakes. 1. A race (esp. a horse race) in which the winner's prize is the sum of the stakes contributed by the various competitors. 2. A contest, often for pro­ motional purposes, that awards prizes based on the random selection of entries.• State and federal laws prohibit conducting a sweepstakes as a scheme to obtain money or property through the mail by false representations. 39 USCA § 3005. [Cases: GamingC:> 62; Lotteries C:>3.] sweetener. 1. An inducement offered to a brokerage firm to enter into an underwriting arrangement with an issuer. 2. A special stock feature (such as convert­ ibility) that enhances the stock's marketability. sweetheart deal. A collusive agreement; esp., a collec­ tive-bargaining agreement made as a result of collusion between an employer and a union representative, usu. allowing the employer to pay lower wages in exchange for payoffs to the union representative. sweiu (swayn). Hist. A forest freeholder. Also spelled swain. sweinmote (swayn-moht). Hist. A forest court held three times a year, before verderors as judges and freehold­ ers of the forest as jurors, to try forest offenses. - Also spelled swainmote; swanimote; swainemote; swainge­ mote. "The court of sweinmote is to be holden before the verd­ erors, as judges, by the steward of the sweinmote thrice in every year .... The principal jurisdiction of this court is, first, to enquire into the oppressions and grievances committed by the officers of the forest ... and, secondly, to receive and try presentments certified from the court of attachments against offences in vert and venison." 3 William Blackstone, Commentaries on the Laws of England 72 (1768).

swell, n. 1. An expansion in the bulk of something . 2. A gradual rise of something . 3. A large, unbroken wave; the collective waves, par­ ticularly following a storm . swift witness. See zealous witness under WITNESS. swindle, vb. (18c) To cheat (a person) out of property <Johnson swindled Norton out of his entire savings> <Johnson swindled Norton's entire savings out of him>. - swindle, n. - swindling, n. swindler. A person who willfully defrauds or cheats another. swinging-door chad. See CHAD. swing loan. See bridge loan under LOAN. swing vote. (1962) The vote that determines an issue when all other voting parties, such as appellate judges, are evenly split. swipe, vb. 1. To strike or try to strike with a swinging blow . 2. To steal . 3. To pass a card with a magnetic stripe through a machine that reads the stripe 1.5(3).] tam facti quam animi (tam fak-tI kwam an-a-mI). [Latin] Hist. In deed as well as in intention. tamper, vb. (l6c) 1. To meddle so as to alter (a thing); esp., to make changes that are illegal, corrupting, or perverting. 2. To interfere improperly; to meddle. tampering, n. (17c) 1. The act of altering a thing; esp., the act of illegally altering a document or product, such as written evidence or a consumer good. See Model Penal Code §§ 224.4, 241.8; 18 lJSCA § 1365. 2. The act or an instance of engaging in improper or underhanded dealings, esp. in an attempt to influence. - Tampering with a witness or jury is a criminal offense. See WITNESS TAMPERING; OBSTRUCTION OF JUSTICE; EMBRACERY. TAN. See tax-anticipation note under NOTE (1). TANF. abbr. TEMPORARY ASSISTANCE TO NEEDY FAMILIES. tangible, adj. (16c) 1. Having or possessing physical form; CORPOREAL. 2. Capable of being touched and seen; perceptible to the touch; capable of being pos­

tariff

1593

sessed or realized. 3. Capable of being understood by the mind. tangible asset. See ASSET. tangible chattel paper. See CHATTEL PAPER. tangible cost. See COST (1). tangible damages. See actual damages under DAMAGES. tangible evidence. See EVIDENCE. tangible medium ofexpression. Copyright. Any material form in which a work can be expressed and commu­ nicated, either directly or through a machine. _ A requirement for copyright is that the work be fixed in a tangible medium of expression. [Cases: Copyrights and Intellectual Property C-:::> 12(1).] tangible personal property. See PROPERTY. tangible-personal-property memorandum. A hand­ written or signed document that lists items of tangible personal property (such as jewelry, artwork, or furni­ ture) and the persons who should receive the property upon the owner's death. - This memorandum is a separate document from the property owner's will, and if referred to by the will, it is a valid testamentary dispo­ sition. Unif. Probate Code § 2-513. Abbr. TPPM. tangible property. See PROPERTY. tangible thing. See corporeal thing under THING. tangible worth. See WORTH. tanquam bonus vir (tan-kwam boh-nas veer). [Law Latin] Scots law. As an honest or honorable man. - A tenant was required to run his farm tanquam bonus vir. Also spelled tamquam bonus vir. tanquam dominus (tan-kwam dom-a-nels). [Law Latin] Rist. As owner. tanquam in libello (tan-kwam in lel-bel-oh). [Law Latin] Hist. As if alleged in the libel. tanquam interim dominus (tan-kwam in-telr-im dom-el­ nas). [Law Latin] Hist. As the temporary owner. tanquam jure devoluto (tan-kwam joor-ee dee-vel-Ioo­ toh). [Law Latin] Hist. As ifthe right had devolved. See JUS DEVOLUTUM. tanquam optimum maximum (tan-kwam op-tel-mam mak-Sel-m;lm). [Law Latin] Hist. At its best and fullest. • The phrase was often used in the conveyance of an estate. tanquam quilibet (tan-kwam kWI-I;l-bet). [Law Latin] Hist. Like any other person. - The phrase usu. referred to certain transactions of the sovereign. tantum et tale (tan-telm et tay-Iee). [Latin] Hist. So much and of such a kind. "When a purchaser accepts a subject from the seller tantum et tale as it stands in the person of the latter, he accepts it with all its advantages and all its faults; he comes precisely into the right and place of the seller: if the subject or the right sold turns out to be more valuable than was thought, the purchaser has the advantage; if otherwise, he bears the loss." John Trayner, Trayner's Latin Maxims 595 (4th ed. 1894).

tapper, n. (1930) 1. A person who approaches another for money; a beggar. 2. By extension, a thief. tapping, n. See WIRETAPPING. tarde venit. A return of a writ that was delivered to the sheriff too late to be executed before the return day. See return day under DAY. tare (tair), n. 1. A deficiency in the weight or quantity of merchandise resulting from including its container's weight in the total. 2. An allowance or abatement of a certain weight or quantity that a seller makes to the buyer because of the container's weight. Cf. TRET. target benefit plan. See EMPLOYEE BENEFIT PLAN. target corporation. See CORPORATION. target defendant. See DEFENDANT. target offense. See object offense under OFFENSE (1). target price. See PRICE. target witness. See WITNESS. tariff, n. 1. A schedule or system of duties imposed by a government on imported or exported goods .• In the United States, tariffs are imposed on imported goods only. [Cases: Customs Duties C=>23-38.] 2. A duty imposed on imported or exported goods under such a system. See DUTY (4). ad valorem tariff. A tariff set as a percentage of the imported goods' value. _ This is the primary method used to calculate customs duties. antidumping tariff. A tariff equaling the difference between the price at which the product is sold in the exporti ng country and the price at which the importer will sell the product in the importing country.• These tariffs are designed to prevent foreign businesses from artificially lowering their prices and gaining unfair advantages outside their home market. Also termed antidumping duty. See ANTIDUMPING LAW. [Cases: Customs Duties (::::;21.5.] autonomous tariff. A tariff set by legislation rather than by commercial treaty. common external tariff. A tariff rate that members of a customs union, common market, or economic union uniformly apply to imports from nonmember nations. Abbr. CXT. Also termed tariff exterior

commun . discriminatory tariff. A tariff containing duties that are applied unequally to different countries or manu­ facturers. preferential tariff. A tariff that favors the products of one country over those of another. Cf. MOST­ FAVORED-NATIO:'II CLAUSE. protective tariff. A tariff deSigned primarily to give domestic manufacturers economic protection against price competition from abroad, rather than to generate revenue. retaliatory tariff. A tariff imposed to pressure another country into removing its own tariffs or making trade concessions.

Tariff Act of 1930

revenue tariff. A tariff enacted solely or primarily to raise revenue. tariffexteriorcommun. [French1 See common external tariff. Abbr. TEe. 3. A fee that a public utility or telecommunications company may assess for its services. - The tariffs that a provider may charge are limited by statute. [Cases: Public Utilities (;:::) 119.1; Telecommunications 928.]4. A schedule listing the rates charged for services provided by a public utility, the U.S. Postal Service, or a business (esp. one that must by law file its rates with a public agency). [Cases: Public Utilities (;:::::-119.1.]5. A scale of sentences and damages for crimes and injuries, arranged by severity. - tariff, vb. joint tariff. A rate schedule established by two or more carriers covering shipments between places requiring the use of facilities owned by those carriers. rCases: Carriers (;:::::-30.] Tariff Act of 1930. See SMOOT-HAWLEY TARIFF ACT. tarnishment. Trademarks. A form of dilution that occurs when a trademark's unauthorized use degrades the mark and diminishes its distinctive quality. Cf. BLljRRING. [Cases: Trademarks task order. See task-order contract under CONTRACT. task-order contract. See CONTRACT. tax, n. (14c) A charge, usu. monetary, imposed by the government on persons, entities, transactions, or property to yield public revenue. - Most broadly, the term embraces all governmental impositions on the person, property, privileges, occupations, and enjoy­ ment of the people, and includes duties, imposts, and excises. Although a tax is often thought of as being pecuniary in nature, it is not necessarily payable in money. [Cases: Internal Revenue (;:::::-3001; Taxation (;::::)2001.)- tax, vb. ''Taxes are the enforced proportional contributions from persons and property, levied by the state by virtue of its sovereignty for the support of government and for all public needs. This definition of taxes, often referred to as 'Cooley's definition,' has been quoted and indorsed, or approved, expressly or otherwise, by many different courts. While this definition of taxes characterizes them as 'contributions: other definitions refer to them as 'imposts,' 'duty or impost,' 'charges,' 'burdens,' or 'exactions'; but these variations in phraseology are of no practical impor­ tance:' 1 Thomas M. Cooley, The Law of Taxation § 1, at 61-63 (Clark A. Nichols ed., 4th ed. 1924).

accrued tax. (1872) A tax that has been incurred but not yet paid or payable. accumulated-earnings tax. (1957) A penalty tax imposed on a corporation that has retained its earnings in an effort to avoid the income-tax liability arising once the earnings are distributed to sharehold­ ers as dividends. - Also termed undistributed-earn­ ings tax. [Cases: Internal Revenue (;:::::-3843-3845.J additional tax. See stopgap tax. admission tax. A tax imposed as part of the price of being admitted to a particular event. [Cases: Public Amusement and Entertainment ~50.1

1594

ad valorem tax. (1810) A tax imposed proportionally on the value of something (esp. real property), rather than on its quantity or some other measure. [Cases: Taxation (:::::>2061.] "[AJn ad valorem tax is a tax of a fixed proportion of the value of the property with respect to which the tax is assessed, and requires the intervention of assessors or appraisers to estimate the value of such property before the amount due from each taxpayer can be determined." 71 Am. Jur. 2d State and Local Taxation § 20, at 355 (1973).

alternative minimum tax. (1972) A tax, often a flat rate, potentially imposed on corporations and higher­ income individuals to ensure that those taxpayers do not avoid too much (or all) income-tax liability by legitimately using exclusions, deductions, and credits. Abbr. AMT. - Also termed minimum tax. [Cases: Internal Revenue amusement tax. A tax on a ticket to a concert, sporting event, or the like. - The tax is usu. expressed as a per­ centage ofthe ticket price. [Cases: Public Amusement and Entertainment C~50.) back tax. (oft. pl.) A tax that, though assessed for a previous year or years, remains due and unpaid. betterment tax. See BETTERMENT TAX. capital-gains tax. (1930) A tax on income derived from the sale of a capital asset. _ The federal income tax on capital gains typically has a more favorable tax rate - for example, 20% for an individual and 34% for a corporation - than the otherwise applicable tax rate on ordinary income. See CAPITAL GAIN. [Cases: Internal Revenue (;:::::-3230.1-3260.J capital-stock tax. 1. A tax on capital stock in the hands of a stockholder. [Cases: Taxation (;:::::-2234.]2. A state tax for conducting business in the corporate form, usu. imposed on out-of-state corporations for the privilege of doing business in the state. _ The tax is usu. assessed as a percentage of the par or assigned value of a corporation's capital stock. capitation tax. See poll tax. child's income tax. See kiddie tax. classified tax. A tax system in which different rates are assessed against different types of taxed property. collateral-inheritance tax. A tax levied on the transfer of property by will or intestate succession to a person other than the spouse, a parent, or a descendant of the decedent. CL legacy tax. [Cases: Taxation (;:::::-3301.) commutation tax. 1. A combination of two or more taxes that is or can be substituted for something else that could be imposed, such as a demand for other taxes or the performance of personal services. - For example, an excise or franchise tax may be combined with a local tax in lieu of all other taxes related to the subject matter. 2. Hist. A tax imposed on shipowners, requiring them to post a bond or remit a payment per foreign passenger. _ In the 19th-century, the tax was used to discourage immigration and to raise revenue to defray the costs ofsupporting indigent immigrants who had remained in the U.S. 3. Hist. A 1784 tax

intended to reduce tea-smuggling and increase tax revenue by cutting the tax on tea and raising the tax on windows.• To avoid payment of the tax, many people boarded up their windows. consumption tax. A tax imposed on sale of goods or services to be consumed. [Cases: Taxation 3602.] death tax. 1. See estate tax. 2. See inheritance tax. delinquent tax. A tax not paid when due. [Cases: Internal Revenue ~4827; Taxation (:::::>2760,3554, 3697.] direct tax. (I8c) A tax that is imposed on property, as distinguished from a tax on a right or privilege.• A direct tax is presumed to be borne by the person upon whom it is assessed, and not "passed on" to some other person. Ad valorem and property taxes are direct taxes. [Cases: Internal Revenue ~30593064; Taxation ~2061.] documentary-stamp transfer tax. See stamp tax. erroneous tax. 1. A tax levied without statutory author­ ity. [Cases: Taxation C==>2062, 3404, 3607.J 2. A tax on property not subject to taxation. 3. A tax levied by an officer who lacks authority to levy the tax. - Also termed illegal tax. estate tax. (1928) A tax imposed on the transfer of property by will or by intestate succession. Also termed death tax; death duty. Cf. inheritance tax. [Cases: Internal Revenue ~4145; Taxation 3301.] estimated tax. (1926) A tax paid quarterly by a taxpayer not subject to withholding (such as a self-employed person) based on either the previous year's tax liabil­ ity or an estimate of the current year's tax liability. [Cases: Internal Revenue C=.'4827, 4832, 5219.40; Taxation (;::>3554.] excess-profits tax. (1918) A tax levied on profits that are beyond a business's normal profits .• This type of tax is usu. imposed only in times ofnational emer­ gency (such as war) to discourage profiteering. [Cases: Internal Revenue ~4130-4136.] excise lieu property tax. A tax on the gross premiums received and collected by deSignated classes of insur­ ance companies. [Cases: Taxation ~2243.] excise tax. See EXCISE. export tax. A tax levied on merchandise and goods shipped or to be shipped out of a country. flat tax. (1952) A tax whose rate remains fixed regard­ less of the amount ofthe tax base .• Most sales taxes are flat taxes. - Also termed proportional tax. Cf. progressive tax; regressive tax. [Cases: Taxation 3672, 3673.] floor tax. A tax imposed on distilled spirits stored in a warehouse. [Cases: Internal Revenue ~4314.] franchise tax. A tax imposed on the privilege of carrying on a business (esp. as a corporation), usu.

measured by the business's income. See FRANCHISE. [Cases: Taxation C==>2233.] general tax. (l6c) 1. A tax that returns no special benefit to the taxpayer other than the support of gov­ ernmental programs that benefit all. [Cases: Taxation C==>2001, 2010.] 2. A property tax or an ad valorem tax that is imposed for no special purpose except to produce public revenue. Cf. special assessment under ASSESSMENT.

generation-skipping tax. (1977) A tax on a property transfer that skips a generation .• The tax limits the use of generation-skipping techniques as a means of avoiding estate taxes. [Cases: Internal Revenue 4220.] generation-skipping transfer tax. (1984) A gift or estate tax imposed on a generation-skipping transfer or a generation-skipping trust. IRe (26 USCA) §§ 2601­ 2663. Sometimes shortened to generation-skipping tax; transfer tax. See DIRECT SKIP; GENERATION­ SKIPPING TRANSFER; generation-skipping trust under TRUST; TAXABLE DISTRIBUTION. [Cases: Internal Revenue C:='4220-4228.] gift tax. (1925) A tax imposed when property is volun­ tarily and gratuitously transterred .• Under federal law, the gift tax is imposed on the donor, but some states tax the donee. [Cases: Internal Revenue C==> 4200; Taxation ~3381.1 graduated tax. l. A tax employing a rate schedule with higher marginal rates for larger taxable bases (income, property, transfer, etc.) 2. See progressive tax. gross-income tax. (1916) A tax on gross income, possibly after the deduction for costs of goods sold, rather than on net profits; an income tax without allowance for expenses or deductions. See gross income under INCOME. [Cases: Internal Revenue C==> 3110; Taxation ~3447.] gross-receipts tax. A tax on a business's gross receipts, without a deduction for costs of goods sold, or allow­ ance for expenses or deductions. See GROSS RECEIPTS. [Cases: Taxation C:='3604.] head tax. 1. See poll tax. 2. HEAD MONEY (3). hidden tax. (1935) A tax that is paid, often unknow­ ingly, by someone other than the person or entity on whom it is levied; esp., a tax imposed on a manu­ facturer or seller (such as a gasoline producer) who passes it on to consumers in the form of higher sales prices. highway tax. A tax raised to pay for the construc­ tion, repair, and maintenance of highways. [Cases: Highways ~ 123.] holding-company tax. A federal tax imposed on undis­ tributed personal-holding-company income after allOWing deductions for such things as dividends paid. IRC (26 USCA) § 545. - Also termed personal­ holding-company tax. [Cases: Internal Revenue 3850.1-3858.]

illegal tax. 1. A tax that violates the law, esp. the con­ stitution.• For an example, see poll tax. 2. See erro­ neous tax. income tax. (18c) A tax on an individual's or entity's net income .• The federal income tax - set forth in the Internal Revenue Code is the federal govern­ ment's primary source of revenue, and most states also have income taxes. Cf. property tax; EXCISE. [Cases: Internal Revenue C='3065-4122; Taxation (;::::>3401.] indirect tax. (18c) A tax on a right or privilege, such as an occupation tax or franchise tax .• An indirect tax is often presumed to be partly or wholly passed on from the nominal taxpayer to another person. [Cases: Licenses inheritance tax. (I8c) 1. A tax imposed on a person who inherits property from another (unlike an estate tax, which is imposed on the decedent's estate) .• 1here is no federal inheritance tax, but some states have an inheritance tax (though it is creditable or deductible under the federal estate tax). Also termed succes­ sion tax; death tax. Cf. estate tax. [Cases: Taxation G::::3301.] 2. Loosely, an estate tax. in lieu tax. A tax imposed as a substitute for another. [Cases: Taxation ('::)2295.] intangible tax. A state tax imposed on the privilege of owning, transferring, deviSing, or otherwise dealing with intangible property. [Cases: Taxation (;::::>2061.] interest-equalization tax. A tax imposed on a U.S. citi­ zen's acquisition of stock issued by a foreign issuer or a debt obligation of a foreign obligor, but only if the obligation did not mature within a year. • 'Ibis tax was repealed in the mid-1970s. IRC (26 USCA) § 4911. kiddie tax. (l8c) Slang. A federal tax imposed on a child's unearned income (above an exempt amount) at the parents' tax rate if the parents' rate is higher and if the child is under 18 years old. - Also termed child's income tax. land tax. See property tax. legacy tax. A tax on a legacy, often with the provision that the rate increases as the relationship ofthe legatee becomes more remote from the testator.• In English law, this tax was known as a legacy duty; it was abol­ ished in 1949. Cf. collateral-inheritance tax. [Cases: Taxation (;::::>3301.] luxury tax. (1925) An excise tax imposed on high­ priced items that are not deemed necessities (such as cars costing more than a specified amount). Cf. sin tax. [Cases: Taxation (;::::>3602.] minimum tax. See alternative minimum tax. nanny tax. (1993) Slang. A federal social-security tax imposed on the employer of a domestic employee if the employer pays that employee more than a spec­ ified amount in total wages in a year.• The term, which is not a technical legal phrase, was popularized

in the mid-1990s, when several of President Clinton's nominees were found not to have paid the social­ security tax for their nannies. occupation tax. (1879) An excise tax imposed for the privilege of carrying on a business, trade, or profes­ sion.• For example, many states require lawyers to pay an occupation tax. Also termed occupational tax. [Cases: Licenses (;::::, 1.] payroll tax. (1936) 1. A tax payable by an employer based on its payroll (such as a SOcial-security tax or an unemployment tax). [Cases: Internal Revenue C~)4849; Taxation ('::::::3560.] 2. A tax collected by an employer from its employees' gross pay (such as an income tax or a social-security tax). See withhold­ ing tax. per capita tax. See poll tax. personal-holding-company tax. See holding-company tax. personal-property tax. (1863) A tax on personal property (such as jewelry or household furniture) levied by a state or local government. [Cases: Taxation 3301.] poll tax. (l7c) A fixed tax levied on each person within a jurisdiction .• The 24th Amendment prohibits the federal and state governments from imposing poll taxes as a condition for voting. Also termed per capita tax; capitation tax; capitation; head tax. [Cases: Elections (;::::>83; Taxation (;::::>2050.] premium tax. A state tax paid by an insurer on premiums paid by the insured. [Cases: Taxation 2243.] privilege tax. A tax on the privilege of carrying on a business or occupation for which a license or fran­ chise is required. [Cases: Licenses progressive tax. (1886) 1. A tax structured so that the effective tax rate increases more than proportion­ ately as the tax base increases, or so that an exemp­ tion remains flat or diminishes.• With this type of tax, the percentage of income paid in taxes increases as the taxpayer's income increases. Most income taxes are progressive, so that higher incomes are taxed at a higher rate. But a tax can be progressive without using graduated rates. Also termed graduated tax. Cf. regressive tax;jlat tax. Internal Revenue C~ 3545-3552; Taxation 2. See graduated tax. property tax. (1808) A tax levied on the owner of property (esp. real property), usu. based on the property's value .• Local governments often impose property taxes to finance school districts, municipal projects, and the like. Also termed (specif.) land tax. Cf. income tax; EXCISE. [Cases: Taxation 2170-2216.] proportional tax. See flat tax.

regressive tax. (1893) A tax structured so that the effec­ tive tax rate decreases as the tax base increases .• With this type of tax, the percentage of income paid in taxes decreases as the taxpayer's income increases. A flat tax (such as the typical sales tax) is usu. consid­ ered regressive - despite its constant rate because it is more burdensome for low-income taxpayers than high-income taxpayers. A growing exemption also produces a regressive tax effect. C[ progressive tax; flat tax. [Cases: Internal Revenue (;:::::>3545-3552; Taxation (;:::::>3526.] repressive tax. See sin tax. sales tax. (1921) A tax imposed on the sale of goods and services, usu. measured as a percentage of their price. - Also termed retail sales tax. See flat tax. [Cases: Taxation (;:::::>3602.] ''While the term 'sales tax' encompasses a large variety of levies. the term often refers to the 'retail sales tax,' where the tax is separately stated and collected on a transaction­ by-transaction basis from the consumer; although the economic burden of the sales tax falls upon the consumer, the seller has the statutory duty to collect the tax for the taxing jurisdiction." 68 Am. Jur. 2d Sales and Use Tax § 1, at 11 (1993).

self-employment tax. The Social-Security and Medicare tax imposed on the net earnings of a self-employed person. [Cases: Internal Revenue (;:::::>4381.] service-occupation tax. A tax imposed on persons who sell services, usu. computed as a percentage of net cost of the tangible personal property (e.g., materials and goods) transferred as an incident to the sale. [Cases: Licenses C= 1; Taxation (;::::::>3658.] severance tax. A tax imposed on the value of oil, gas, timber, or other natural resources extracted from the earth. [Cases: Logs and Logging Mines and Minerals (;::::::>87.] Sinking-fund tax. A tax to be applied to the repayment of a public loan. sin tax. (I97l) An excise tax imposed on goods or activ­ ities that are considered harmful or immoral (such as cigarettes, liquor, or gambling). - Also termed repreSSive tax. Cf. luxury tax. slack tax. See pickup tax. special tax. (ISc) 1. A tax levied for a unique purpose. 2. A tax (such as an inheritance tax) that is levied in addition to a general tax. [Cases: Taxation specific tax. (ISc) A tax imposed as a fixed sum on each article or item of property of a given class or kind without regard to its value. sponge tax. See pickup tax. stamp tax. (ISc) A tax imposed by requiring the purchase of a revenue stamp that must be affixed to a legal document (such as a deed or note) before the document can be recorded. Also termed documen­ tary-stamp transfer tax. [Cases: Internal Revenue 4390-4409.J state tax. (18c) 1. A tax usu. in the form of a sales or income tax - earmarked for state, rather than federal

or municipal, purposes. [Cases: Taxation (;:::::>2001.] 2. A tax levied under a state law. stock-transfer tax. A tax levied by the federal govern­ ment and by some states on the transfer or sale of shares of stock. - Often shortened to transfer tax. [Cases: Internal Revenue (;:::::>4404; Taxation

2218.]

"Some state statutes impose special taxes, usually in the form of a stamp tax, upon sales and agreements for sale and other transfers of stock in corporations. Such a tax is in the nature of an excise tax on the transfer. Taxes on the issuance and transfer of corporate stock, commonly known as 'stock transfer taxes' and payable by means of stamps, are constitutional, as within the power of state governments." 71 Am. Jur. 2d State and Local Taxation § 643, at 896 (1973).

stopgap tax. A tax, usu. temporary, levied during the term of a budget to cover an unexpected deficit. ­ Also termed additional tax. succession tax. See inheritance tax (1). surtax. (1881) An additional tax imposed on some­ thing being taxed or on the primary tax itself. [Cases: Taxation (;:::::>3527.] tonnage tax. See tonnage duty under DUTY (4). transfer tax. (1890) 1. A tax imposed on the transfer of property, esp. by will, inheritance, or gift. [Cases: Internal Revenue (;::::::>4220-4228; Taxation (;:::::>22l8, 3301, 3381.] 2. See stock-transfer tax. 3. See genera­ tion-skipping transfer tax. undistributed-earnings tax. See accumulated-earnings tax. unemployment tax. (1937) A tax imposed on an employer by state or federal law to cover the cost of unemployment insurance .• The Federal Unem­ ployment Tax Act (FUTA) provides for a tax based on a percentage of employee earnings but allows a credit for amounts paid in state unemployment taxes. [Cases: Internal Revenue (;:::::>4305.] unified transfer tax. The federal transfer tax imposed equally on property transferred during life or at death. _ Until 1977, gift-tax rates were lower than estate taxes. - Also termed unified estate-and-gift tax. unitary tax. A tax of income earned locally by a business that transacts business through an affiliated company outside the state or country. See UNITARY BUSINESS. [Cases: Taxation C=3477.] unrelated-business-income tax. (1962) A tax levied on a not-for-profit organization's taxable income, such as advertiSing revenue from a publication. [Cases: Internal Revenue (;:::::>4068; Taxation (;:::::>3488.] use tax. A tax imposed on the use of certain goods that are bought outside the taxing authority's juris­ diction. - Use taxes are deSigned to discourage the purchase of products that are not subject to the sales tax. [Cases: Taxation (;::::::>3603.] value-added tax. (1935) A tax assessed at each step in the production of a commodity, based on the value added at each step by the difFerence between the

commodity's production cost and its selling price. • A value-added tax - which is levied in several European countries effectively acts as a sales tax on the ultimate consumer. - Abbr. VAT. [Cases: Taxation C=;3602.] windfall-profits tax. (1973) A tax imposed on a business or industry as a result of a sudden increase in profits. • An example is the tax imposed on oil companies in 1980 for profits resulting from the Arab oil embargo of the 19705. [Cases: Internal Revenue C=>4338.] window tax. Hist. English law. A tax imposed on a house containing a certain number of windows (uau. more than six).• It was established under the Taxation Act of 1695 and replaced with a tax on inhabited houses established under the House Tax of 1851. See HODSE­ DUTY.

withholding tax. (1927) A portion of income tax that is subtracted from salary, wages, dividends, or other income before the earner receives payment. • The most common example is the income tax and SOcial-security tax withheld by an employer from an employee's pay. [Cases: Internal Revenue ~'='4849; Taxation C=> 3560.] taxable, adj. (16c) 1. Subject to taxation . [Cases: Internal Revenue 10: Taxation e:-::3446-3477.] 2. (Oflegal costs or fees) assessable <expert-witness fees are not taxable court costs>. [Cases: Costs C:=-146-194; Federal Civil Procedure C=>2742.] taxable cost. See COST (3). taxable distribution. (1927) A generation-skipping transfer from a trust to the beneficiary (Le., the skip person) that is neither a direct skip nor a taxable ter­ mination. See GENERATION-SKIPPING TRANSFER; generation-skipping tramfer tax under TAX; genera­ tion-skipping trust under TRUST; SKIP PERSON. [Cases: Internal Revenue C:::04224.j taxable estate. See ESTATE (3). taxable gift. See GIFT. taxable income. See INCOME. taxable termination. (1988) A taxable event that occurs when (1) an interest in a generation-skipping trust property terminates (as on the death of a skip person's parent who possessed the interest), (2) no interest in the trust is held by a nonskip person, and (3) a distribution may be made to a skip person .• Before the creation of taxable terminations in 1976, a taxpayer could create a trust that paid income to a child for life, then to that child's child for lite, and so on without incur­ ring an estate or gift tax liability at the death of each generation's beneficiary. See GENERATION-SKIPPING TRANSFER; generation-skipping transfer tax under TAX; generation-skipping trust under TRUST; SKIP PERSON. [Cases: Internal Revenue C=>4224.J taxable year. See tax year under YEAR. tax accounting. lhe accounting rules and methods used in determining a taxpayer's liability.

tax-anticipation bill. A short-term obligation issued by the U.S. Treasury to meet the cash-flow needs of the government.• Corporations can tender these bills at par value to make quarterly tax payments. Abbr. TAB. tax-anticipation note. See NOTE (1). tax-anticipation warrant. See WARRANT (2). tax-apportionment clause. A testamentary provision directing how inheritance and estate taxes should be paid. [Cases: Internal Revenue C=>4824; Taxation 3346.] tax assessment. See ASSESSMENT (3). tax assessor. See ASSESSOR (1). taxation. (14c) 1. Ihe imposition or assessment of a tax; the means by which the state obtains the revenue required for its activities. [Cases: Internal Revenue C=> 300l-3007; Taxation C;;;-2001.] double taxation. (18c) 1. The imposition of two taxes on the same property during the same period and for the same taxing purpose. [Cases: Taxation 2150-2156,3435.] 2. The imposition of two taxes on one corporate profit; esp., the structure of taxation employed by Subchapter C of the Internal Revenue Code, under which corporate profits are taxed twice, once to the corporation when earned and once to the shareholders when the earnings are distributed as dividends. 3. Int'llaw. The imposition of comparable taxes in two or more states on the same taxpayer for the same subject matter or identical goods. - Also termed duplicate taxation. duplicate taxation. See double taxation. equal and uniform taxation. A tax system in which no person or class of persons in the taxing district is taxed at whether it be a state, city, or county a different rate from others in the same district on the same value or thing. [Cases: Taxation C=>2134, 3428,3627.] pass-through taxation. (1998) The taxation of an entity's owners for the entity's income without taxing the entity itself.• Partnerships and S corporations are taxed under this method. So are limited liability companies and limited liability partnerships unless they elect to be taxed as corporations by "checking the box" on their income tax returns. the election is made on Form 8832 (Entity Classification Election). See Treas. Reg. § 301.7701-(3)(b)(1). - Also termed conduit taxation. [Cases: Internal Revenue C=>3896, 3920-3924.] 2.

TAXATION OF COSTS.

taxation of costs. The process of fixing the amount of litigation-related expenses that a prevailing party is entitled to be awarded. - Sometimes shortened to taxation. [Cases: Costs C=> 195; Federal Civil Proce­ dure C=>2742.l.J tax audit. See Al:DIT.

tax avoidance. (1927) The act of taking advantage of legally available tax-planning opportunities in order to minimize one's tax liability. Cf. TAX EVASION. [Cases: Internal Revenue ~3056-3058; Taxation ~2220.1 tax base. The total property, income, or wealth subject to taxation in a given jurisdiction; the aggregate value of the property being taxed by a particular tax. Cf. BASIS (2). tax basis. See BASIS (2). tax-benefit doctrine. See TAX-BENEFIT RULE. tax-benefit rule. (1942) The principle that if a taxpayer recovers a loss or expense that was deducted in a previous year, the recovery must be included in the current year's gross income to the extent that it was pre­ viously deducted. - Also termed tax-benefit doctrine. [Cases: Internal Revenue~3089, 3138.] tax bracket. (1923) A categorized level ofincome subject to a particular tax rate under federal or state law . [Cases: Internal Revenue ~3545-3552; Taxation ~3525-3529.] tax certificate. An instrument issued to the buyer of property at a tax sale, certifying the sale and entitling the buyer to a tax deed and possession of the property upon the expiration of the redemption period. - If the property is redeemed, the tax certificate is voided. See REDEMPTION PERIOD; tax sale under SALE. Cf. tax deed under DEED. [Cases: Taxation ~2986, 3064.] tax court. (1841) 1. TAX COURT, U.S. 2. In some states, a court that hears appeals in nonfederal tax cases and can modify or change any valuation, assessment, clas­ sification, tax, or final order that is appealed. [Cases: Taxation ~2691, 3548, 3695.] Tax Court, U.S. A federal court that hears appeals by taxpayers from adverse IRS decisions about tax defi­ ciencies. _ The Tax Court was created in 1942, replac­ ing the Board of Tax Appeals. - Abbr. TC. [Cases: Internal Revenue ~4645-4655.] tax credit. (1946) An amount subtracted directly from one's total tax liability, dollar for dollar, as opposed to a deduction from gross income. - Often shortened to credit. ct DEDUCTION (2). [Cases: Internal Revenue~ 3520-3537; Taxation (;;)3517.] child- and dependent-care tax credit. (2001) A tax credit available to a person who is employed full-time and who maintains a household for a dependent child or a disabled spouse or dependent. [Cases: Internal Revenue ~3520, 3534; Taxation ~3517.1 earned-income credit. (1927) A refundable federal tax credit on the earned income of a low-income worker with dependent children. _ The credit is paid to the taxpayer even if it exceeds the total tax liability. See IRC (26 USCA) § 32. - Abbr. Ere. [Cases: Internal Revenue ~ 3532.] foreign tax credit. (I928) A tax credit against U.S. income taxes for a taxpayer who earns income overseas and has paid foreign taxes on that income.

See FOREIGN-EARNED-INCOME Internal Revenue ~4098.]

EXCLUSION.

[Cases:

"Since direct foreign investments and business operations of United States persons often attract foreign income taxes along with the baseline U.S. tax, the specter of double taxation is bound to haunt the pursuit of foreign income. The principal accommodation of the U.S. tax system to the possibility of source-based taxation by other countries a dollar­ is the foreign tax credit. From a simple idea for-dollar reduction of U.S. tax for income taxes paid to foreign countries the foreign tax credit has evolved into an elaborate statutory structure capable of engulfing an entire professional career." Joseph Isenbergh, International Taxation 14 (2000).

investment tax credit. (1965) A tax credit intended to stimulate business investment in capital goods by allowing a percentage of the purchase price as a credit against the taxpayer's income taxes. - The Tax Reform Act of 1986 generally repealed this credit retroactively for most property placed in service after January 1, 1986. - Abbr. ITe. [Cases: Internal Revenue (;:=> 3523; Taxation ~3517.1 unified credit. See unified estate-and-giJt tax credit. unified estate-and-gift tax credit. (1988) A tax credit applied against the federal unified transfer tax. IRC (26 USCA) § 2001(c)(2). - Often shortened to unified Also termed applicable exclusion credit. credit. [Cases: Internal Revenue ~4182.30.1 tax deduction. See DEDUCTION (2). tax deed. See DEED. tax-deferred, adj. (1948) Not taxable until a future date or event . [Cases: Internal Revenue ~3575-3615.] tax-deferred account. See ACCOUNT. tax-deferred annuity. See 403(b) plan under EMPLOYEE BENEFIT PLAN.

tax deficiency. See DEFICIENCY (2). tax-deficiency notice. See NLNETY-DAY LETTER. tax denier. See TAX PROTESTER. tax evasion. (1922) Ihe willful attempt to defeat or cir­ cumvent the tax law in order to illegally reduce one's tax liability. - Tax evasion is punishable by both civil and criminal penalties. - Also termed tax fraud. Cf. TAX AVOIDANCE. [Cases: Internal Revenue ~5263; Taxation ~3232, 3563, 3712.] tax:-exernpt, adj. (1923) 1. By law not subject to taxation . [Cases: Internal Revenue 4045-4071; Taxation (;:=2309-2356, 3518, 3664.] 2. Bearing interest that is free from income tax . Also termed tax-free. tax-exempt bond. See BOND (3). tax ferret. A private person engaged in the business of searching for taxable property that has somehow not been taxed. [Cases: Internal Revenue ;/4479; Taxation 3539,3688.] consolidated return. A return that reflects combined financial information for a group of affiliated cor­ porations. [Cases: Internal Revenue (;::::'3865-3880; Taxation (>~~3541.] false return. See FALSE RETURN (2). information return. (1920) A return, such as a W-2, filed by an entity to report some economic informa­ tion related to, but other than, tax liability. joint return. (1930) A return filed together by spouses. • A joint return can be filed even if only one spouse had income, but each spouse is usu. individually liable for the tax payment. [Cases: Internal Revenue (;::::' 4481; Taxation (;::::' 3540.] separate return. (1913) A return filed by each spouse separately, showing income and liability.• Unlike with a joint return, each spouse is individually liable only for taxes due on the separate return. [Cases: Internal Revenue Cc:~'4481; Taxation (;::::'3540.J tax-return privilege. See PRIVILEGE (3). tax roll. See ROLL (2).

teach

tax sale. See SALE. tax shelter, n. (1952) A financial operation or investment strategy (such as a partnership or real-estate invest­ ment trust) that is created primarily for the purpose of reducing or deferring income-tax payments. _ The Tax Reform Act of 1986 - by restricting the deductibility of passive losses - sharply limited the effectiveness of tax shelters. Often shortened to shelter. tax­ sheltered, adj. tax-sheltered annuity. See 403(b) plan under EMPLOYEE BENEFIT PLAN.

tax situs (SI-t52.30-52.50.] creeping tender offer. See creeping acquisition under ACQUISITION.

tender of issue. (1811) Common-law pleading. A form attached to a traverse, by which the traversing party refers the issue to the proper mode of trial. [Cases: Pleading C::=> 100, 112.] "[Ilt is the object of all pleadings to bring the parties, in the course of their mutual altercations, to an issue that is a single entire point, affirmed on the one side and denied on the other; and it is to effect this object that the above rule was established. There can be no arrival at this point until one or the other of the parties, by the conclusion of his pleading, offers an issue for the acceptance of his opponent, and this offer is called the 'tender of issue.''' Benjamin j. Shipman, Handbook of Common-Law Pleading § 254, at 446 (Henry Winthrop Ballantine ed., 3d ed. 1923).

tender-years doctrine. (1954) Family law. The doctrine holding that custody of very young children (usu. five years of age and younger) should generally be awarded to the mother in a divorce unless she is found to be

tenure

1607

unfit. • This doctrine has been rejected in most states and replaced by a presumption of joint custody. See MATERNAL-PREFERENCE DOCTRINE; PRIMARY-CARE­ GIVER DOCTRINE. [Cases: Child Custody C=::o457.]

tender-years hearsay exception. See HEARSAY

EXCEP­

TION.

tenement. (14c) 1. Property (esp.land) held by freehold; an estate or holding ofland. dominant tenement. See dominant estate under ESTATE (4).

servient tenement (silr-vee-;mt). See servient estate under ESTATE (4). 2. A house or other building used as a residence. 3. An apartment. 4. TENEMENT HOUSE. tenement house. (1858) A low-rent apartment building, usu. in poor condition and at best meeting only minimal safety and sanitary conditions. - Sometimes shortened to tenement. tenendas (ta-nen-das), n. [Law Latin "to be held"] Hist. The charter clause stating the nature of the tenure, so called because of the fi rst word of the clause. tenendum (ti}-nen-di}m). [Latin "to be held "] (17c) A clause in a deed designating the kind of tenure by which the things granted are to be held. - Also termed tenendum clause; (in Scots law) tenendas. See HABENDUM ET TENENDUM. Cf. HABENDUM CLAUSE (1).

lO-K. A financial report filed annually with the SEC by a registered corporation.• The report typically includes an audited financial statement, a description of the cor­ poration's business and financial condition, and sum­ maries of other financial data. - Also termed Form 1O-K. Cf. 8-K; lO-Q. (Cases: Securities Regulation 60.27(6).]

Tennessee Valley Authority. A government-owned corporation, created in 1933, that conducts a unified program of resource development to advance economic growth in the Tennessee Valley region .• The Author­ ity's activities include flood control, navigation development, electric-power production, fertilizer development, recreation improvement, and forestry­ and-wildlife development. Though its power program is financially self-supporting, the Authority's other programs are financed primarily by congressional appropriations. - Abbr. TVA. [Cases: United States (;::~ 53(6.1).] tenor, n. 1. An exact copy of an instrument. 2. The exact words of a legal document, esp. as cited in a pleading. 3. The meaning of a legal document. ten-percent bond. See BOND (2). IO-Q. An unaudited financial report filed quarterly with the SEC by a registered corporation .• The IO-Q is less detailed than the lO-K. - Also termed Form 1O-Q. Cf. lO-K.[Cases: Securities Regulation C=::o60.27(6).] tentative agenda. See proposed agenda under AGENDA. tentative trust. See Totten trust under TRUST.

!

Tenth Amendment. The constitutional amendment, ratified as part ofthe Bill of Rights in 1791, providing that any powers not constitutionally delegated to the federal government, nor prohibited to the states, are reserved for the states or the people. - Also termed Reserved Power Clause. [Cases: States C-'-:c4.16.j 1031 exchange (ten-thi}r-tee-wiln). (1972) 1. An exchange of like-kind property that is exempt from income-tax consequences under IRC (26 USCA) § 1031. [Cases: Internal Revenue (;::~") 3184.] Cf. TAX-FREE EXCHANGE. 2. See TAX-FREE EXCHANGE. tenure (ten-yar), n. (l5c) 1. A right, term, or mode of holding lands or tenements in subordination to a superior.• In feudal times, real property was held pre­ dominantly as part of a tenure system. 2. A particular feudal mode of holding lands, such as socage, gavel­ kind, villeinage, and frankalmoign. "Most of the feudal incidents and consequences of socage tenure were expressly abolished in New York by the act of 1787; and they were [later] wholly and entirely annihilated by the New York Revised Statutes .... They were also abolished by statute in Connecticut, 1793; and they have never existed, or they have ceased to exist, in all essential respects, in every other state. The only feudal fictions and services to be retained in any part of the United States consist of the feudal principle, that the lands are held of some superior or lord, to whom the obligation of fealty, and to pay a determinate rent, are due .... The lord para· mount of all socage land was none other than the people of the state, and to them, and them only, the duty of fealty was to be rendered ...." 3 James Kent, Commentaries on American Law *509-1 0 (George Comstock ed., 11th ed. 1866).

base tenure. Hist. The holding of property in villein­ age rather than by military service or free service. See VILLEINAGE. copyhold tenure. See COPYHOLD. lay tenure. Hist. Any tenure not held through religiOUS service, such as a base tenure or a freehold tenure .• The three historical types oflay tenures are knight­ service, socage, and serjeanty. See KNIGHT-SERVICE; SOCAGE; SERJEANTY. Cf. tenure by divine service. military tenure, A tenure that bears some relation to military service, such as knight-service, grand serjeanty, and cornage. - Also termed tenure in chivalry. spiritual tenure. A tenure that bears some relation to religiOUS exercises, such as frankalmoign and tenure by divine service. tenure ad furcam et flagellum (ad f~r-kJm et flJ­ jel-i'lm). [Latin] Hist. Tenure by gallows and whip.• This was the meanest of the servile tenures - the bondman was at the disposal of the lord for life and limb. tenure by divine service. Hist. A tenure obligating the tenant to perform an expressly defined divine service, such as singing a certain number of masses or distrib­ uting a fixed sum of alms. Cf. lay tenure. tenure in chivalry. See military tenure. villein tenure. See VILLEINAGE.

tenured faculty

3. A status afforded to a teacher or professor as a pro­ tection against summary dismissal without sufficient cause.• This status has long been considered a cor­ nerstone of academic freedom. [Cases: Colleges and Universities ~8.1(2); Schools ~ 133.6.) 4. More generally, the legal protection of a long-term relation­ ship, such as employment. [Cases: Officers and Public Employees ~60.) - tenurial (ten-yuur-ee-Jl), adj. tenured faculty. The members of a school's teaching staff who hold their positions for life or until retirement, and who may not be discharged except for cause. [Cases: Colleges and Universities ~8.1(2).) tenure in capite. See IN CAPITE. tenure in chivalry. See military tenure under TENURE. tepid bench. See lukewarm bench under BENCH. teratogen (tJ-rat-J-jJn), n. An agent, usu. a chemical, that causes injury to a fetus or causes any of various birth defects . - teratogenic (tJ-rat-J-jen-ik), adj. terce. Hist. Scots law. A widow's interest in one-third of her husband's real property, if she has not accepted some other special provision .• The couple must have been married at least a year and a day or else have produced a living child together. See DOWER. terce land. Hist. Scots law. Income-producing real property in which a widow has a pecuniary interest because it was owned by her husband. tercer. Hist. Scots law. A widow who has an interest in one-third of her husband's real property. - Also spelled tiercear. tergiversatio (tJr-jiv-Jr-say-shee-oh), n. [Latin "being reluctant, hanging back") Roman law. A delay tactic, esp. an accuser's failure to pursue a criminal charge, perhaps by not appearing at the trial. • To withdraw an accusation, it was necessary to obtain the court's permission for an annulment (abolitio). In A.D. 61, a law was passed by which anyone convicted of tergiversatio was subject to a fine. See CALUMNIA. Cf. PRAEVARICA­ TIO. PI. tergiversationes (tJr-jiv-Jr-say-shee-oh-neez). term, n. (14c) 1. A word or phrase; esp., an expression that has a fixed meaning in some field . 2. A contractual stipulation . See CONDITION (3).

essential term. See fundamental term.

fundamental term. (1873) 1. A contractual provi­

sion that must be included for a contract to exist; a contractual provision that specifies an essential purpose of the contract, so that a breach of the pro­ vision through inadequate performance makes the performance not only defective but essentially dif­ ferent from what had been promised. [Cases: Con­ tracts ~9(1), 15.) 2. A contractual provision that must be included in the contract to satisfy the statute of frauds. - Also termed essential term; vital term. [Cases: Frauds, Statute of~ 113.) implied term. (I8c) A provision not expressly agreed to by the parties but instead read into the contract by

1608

a court as being implicit. • An implied term should not, in theory, contradict the contract's express terms. [Cases: Contracts ~ 168.) material term. (1839) A contractual provision dealing with a Significant issue such as subject matter, price, payment, quantity, quality, duration, or the work to be done. [Cases: Contracts ~9.) nonessential term. See nonfundamental term. nonfundamental term. (1969) Any contractual provi­ sion that is not regarded as a fundamental term. ­ Also termed nonessential term; nonvital term. [Cases: Contracts ~9(1), 15.] vital term. See fundamental term. 3. (pl.) Provisions that define an agreement's scope; conditions or stipulations . 4. A fixed period of time; esp., the period for which an estate is granted . attendant term. (1983) A long period (such as 1,000 years) specified as the duration of a mortgage, created to protect the mortgagor's heirs' interest in the land by not taking back title to the land once it is paid for, but rather by assigning title to a trustee who holds the title in trust for the mortgagor and the mortgagor's heirs. • This arrangement gives the heirs another title to the property in case the interest they inherited proves somehow defective. These types of terms have been largely abolished. See tenancy attendant on the inheri­ tance under TENANCY. [Cases: Mortgages ~54.) "The advantage derived from attendant terms is the security which they afford to purchasers and mortgagees. If the bona fide purchaser or mortgagee should happen to take a defective conveyance or mortgage, by which he acquires a mere equitable title, he may, by taking an assignment of an outstanding term to a trustee for himself, cure the defect, so far as to entitle himself to the legal estate during the term, in preference to any creditor, of whose incumbrance he had not notice, at or before the time of completing his contract for the purchase or mortgage. He may use this term to protect his possessions, or to recover it when lost. This protection extends generally as against all estates and incumbrances created interme­ diately between the raising of the term and the time of the purchase or mortgage; and the outstanding term, so aSSigned to a trustee for the purchaser or mortgagee, will prevail over the intermediate legal title to the inheritance." 4 James Kent, Commentaries on American Law *87 (George Comstock ed., 11 th ed. 1866).

satisfied term. (18c) A term of years in land that has satisfied the purpose for which it was created before the term's expiration. term for deliberating. (1843) The time given a benefi­ ciary to decide whether to accept or reject an inheri­ tance or other succession. term in gross. (1852) A term that is unattached to an estate or inheritance. See tenancy in gross under TENANCY.

term ofyears. 1. A fixed period covering a precise number of years. - Also termed tenancy for a term. 2. English law. A fixed period covering less than a year, or a specified number of years and a fraction of a year. • This sense applies under a seminal English

1609

statute the Law of Property Act of 1925. [Cases: Landlord and Tenant (::::'70.] "In effect, 'term of years' seems to mean a term for any period having a fixed and certain duration as a minimum. Thus, in addition to a tenancy for a specified number of years (e.g., 'to X for ninety-nine years'), such tenancies as a yearly tenancy or a weekly tenancy are 'terms of years' within the definition, for there is a minimum duration of a year or a week respectively. But a lease 'for the life of X' cannot exist as a legal estate, and the same, perhaps, applies to tenancies at will or at sufferance (if they are estates at all) for their duration is wholly uncertain." Robert E. Megarry & M.P. Thompson, A Manual of the Law of Real Property 74 (6th ed. 1993).

unexpired term. The remainder ofa period prescribed by law or by agreement. 5. The period or session during which a court conducts judicial business . Also termed (in sense 5) term ofcourt. See SESSION, [Cases: Courts (::::::63.] additional term. A distinct, added term to a previous term. [Cases: Courts (:::::'64.] adjourned term. (l8c) A continuance of a previous or regular term but not a separate term; the same term prolonged. [Cases: Courts (:::::'66,] appearance term. The regular judicial term in which a party is required to appear, usu. the first one after legal service has been made. [Cases: Courts (:::::"63.J civil term. 1he period during which a civil court hears cases. criminal term. A term of court during which indict­ ments are found and returned, and criminal trials are held. [Cases: Courts (:::::'63.] equity term. (1836) The period during which a court tries only equity cases. general term. A regular term of court - that is, the period during which a court ordinarily sits. Also termed stated term. [Cases: Courts 63, 65.] term to conclude. See TERM (5). term to propound all things. See TERM (5). terra nullius (ter-470-574.]

positive testimony. See affirmative testimony. testimony de bene esse (dee bee-nee es-ee also day ben-ay es-ay). (1805) Testimony taken because it is in danger ofbeing lost before it can be given at a trial or hearing, usu. because of the impending death or departure of the witness.• Such testimony is taken in aid of a pending case, while testimony taken under a bill to perpetuate testimony is taken in anticipation of future litigation. See deposition de bene esse under DEPOSITION. [Cases: Federal Civil Procedure (;=> 1291; Pretrial Procedure

written testimony. (17c) 1. Testimony given out of court by deposition or affidavit. • The recorded writing, Signed by the witness, is considered testimony. [Cases: Federal Civil Procedure (;::;> 1432; Pretrial Procedure (;=:201.] 2. In some administrative agencies and courts, direct narrative testimony that is reduced to writing, to which the witness swears at a hearing or trial before cross-examination takes place in the tra­ ditional way. [Cases: Administrative Law and Proce­ dure (;=:461; Federal Civil Procedure (..'-:>2011; Trial (;=:33.J testing clause. Scots law. The clause at the end ofa formal written instrument or deed by which it is authenticated according to the forms oflaw.• Traditionally, the clause states the name and address of the writer, the number ofpages in the instrument, any alterations or erasures, the names and addresses of the witnesses, the name and address of the person who penned the instrument, and the date and place of signing. testis. [Latin] Hist. A witness. Pi. testes. test oath. See oath ofallegiance under OATH. test paper. A writing that has been proved genuine and submitted to a jury as a standard by which to deter­ mine the authenticity of other writings.• The court decides the test paper's authenticity as a matter oflaw before it is used by the jury. Direct evidence, such as a witness to the writing's creation or an admission by the party, is preferred, but strong circumstantial evidence is usu. acceptable. In Pennsylvania, a paper or instru­ ment shown to the jury as evidence is still called a test paper (sometimes written test-paper). Texas ballot. See BALLOT (4). textbook digest. (I922) A legal text whose aim is to set forth the law of a subject in condensed form, with little or no criticism or discussion of the authorities cited, and no serious attempt to explain or reconcile appar­ ently conflicting decisions. textual citation. See

CITATION

(4).

textualism. See strict constructionism under CONSTRUC­ TIONISM.

theocracy

1615

thalweg (tahl-vayk or -veg). (1831) 1. A line following the lowest part of a (usu. submerged) valley. 2. The middle of the primary navigable channel of a waterway, con­ stituting the boundary between states. Also spelled talweg. Also termed midway. [Cases: States 12.1.] live thalweg. The part of a river channel that is most followed, usu. at the middle ofthe principal channel. Louisiana v. Mississippi, 466 U.S. 96, 104 S.Ct. 1645 (1984). Thayer presumption. (1958) A presumption that allows the party against whom the presumption operates to come forward with evidence to rebut the presumption, but that does not shift the burden ofproof to that party. See James B. Thayer, A Preliminary Treatise on Evidence 31-44 (1898).• Most presumptions that arise in civil trials in federal court are interpreted in this way. Fed. R. Evid. 301. Cf. MORGAN PRESUMPTION. [Cases: Criminal Law Evidence (;:=>85, 89.] The Federalist. See FEDERALIST PAPERS. theft, n. (bef. 12c) 1. The felonious taking and removing ofanother's personal property with the intent ofdepriv­ ing the true owner of it; larceny. [Cases: Larceny C::> 1.] 2. Broadly, any act or instance of stealing, including larceny, burglary, embezzlement, and false pretenses. • Many modern penal codes have consolidated such property offenses under the name "theft." Also termed (in Latin) crimen furti. See LARCENY. Cf. ROBBERY.

"[Tlhe distinctions between larceny, embezzlement and false pretenses serve no useful purpose in the criminal law but are useless handicaps from the standpoint of the administration of criminal justice. One solution has been to combine all three in one section of the code under the name of 'larceny.' This has one disadvantage, however, because it frequently becomes necessary to add a modifier to make clear whether the reference is to common-law larceny or to statutory larceny. To avoid this difficulty some states have employed another word to designate a statutory offense made up of a combination of larceny, embezzlement, and false pretenses. And the word used for this purpose is 'theft.' 'Theft' is not the name of any common-law offense. At times it has been employed as a synonym of 'larceny,' but for the most part has been regarded as broader in its general scope. Under such a statute it is not necessary for the indictment charging theft to specify whether the offense is larceny, embezzlement or false pretenses." Rollin M. Perkins & Ronald N. Boyce, Criminal Law 389-90 (3d ed. 1982).

cybertheft. See CYBERTHEFT. identity theft. See IDENTITY THEFT. petty theft. A theft of a small quantity of cash or of low-value goods or services.• This offense is usu. a misdemeanor. [Cases: Larceny theft by deception. (1930) The use of trickery to obtain another's property, esp. by (1) creating or reinforc­ ing a false impression (as about value), (2) prevent­ ing one from obtaining information that would affect one's judgment about a transaction, or (3) failing to disclose, in a property transfer, a known lien or other legal impediment. Model Penal Code § 223. [Cases: False Pretenses 1.]

theft by extortion. (1969) Larceny in which the perpe­ trator obtains property by threatening to (1) inflict bodily harm on anyone or commit any other criminal offense, (2) accuse anyone of a criminal offense, (3) expose any secret tending to subject any person to hatred, contempt, or ridicule, or impair one's credit or business reputation, (4) take or withhold action as an official, or cause an official to take or withhold action, (5) bring about or continue a strike, boycott, or other collective unofficial action, ifthe property is not demanded or received for the benefit of the group in whose interest the actor purports to act, (6) testify or provide information or withhold testimony or information with respect to another's legal claim or defense, or (7) inflict any other harm that would not benefit the actor. Model Penal Code § 223.4. Also termed larceny by extortion. See EXTORTION. [Cases: Extortion and Threats C::>25.1.] theft by false pretext. The use ofa false pretext to obtain another's property. [Cases: False Pretenses C=:> 1.) theft ofproperty lost, mislaid, or delivered by mistake. (1973) Larceny in which one obtains control of property the person knows to be lost, mislaid, or delivered by mistake (esp. in the amount of property or identity of reCipient) and fails to take reasonable measures to restore the property to the rightful owner. Model Penal Code § 223.5. Also termed larceny of property lost, mislaid, or delivered by mistake. [Cases: Larceny ~-:> 10.] theft ofservices. (1946) The act of obtaining services from another by deception, threat, coercion, stealth, mechanical tampering, or using a false token or device. See Model Penal Code § 223.7. theftbote. (theft-boht) See BOTE (2). theftuous (thef-choo-Js), adj. 1. (Of an act) character­ ized by theft. 2. (Of a person) given to stealing. Also spelled theftous. thence, adv. (Bc) 1. From that place; from that time.• In surveying, and in describing land by courses and dis­ tances, this word, preceding each course given, implies that the follOWing course is continuous with the one before it <south 240 feet to an iron post, thence west 59 feet>. 2. On that account; therefore. thence down the river. (16c) With the meanders of a river.• This phrase appears in the field notes of patent surveyors, indicating that the survey follows a mean­ dering river unless evidence shows that the meander line as written was where the surveyor in fact ran it. Meander lines show the general course ofthe river and are used in estimating acreage, but are not necessarily boundary lines. See MEANDER LINE. [Cases: Boundar­ ies 12.] theocracy (thee-ok-rJ-see). (l7c) 1. Government of a state by those who are believed to be or represent that they are acting under the immediate direction of God or some other divinity. 2. A state in which power is exercised by ecclesiastics.

Theodosian Code (thee-;:l-doh-sh;:m). Roman law. A compilation of imperial enactments prepared at the direction of the emperor Theodosius II and published in A.D. 438.• The Theodosian Code replaced all other imperial legislation from the time of Constantine I (A.D. 306-337), and remained the basis of Roman law until it was superseded by the first Justinian Code in A.D. 529. Also termed (in Latin) Codex Theodosianus (koh-deks thee-d-doh-shee-ay-n. Also termed thereabout. thereafter, adv. (bef. 12c) Afterward; later <Skurry was thereafter arrested>. thereat, adv. (bef. 12c) 1. At that place or time; there. 2. Because ofthat; at that occurrence or event. thereby, adv. (bef. 12c) By that means; in that way . therefor, adv. (bef. 12c) For it or them; for that thing or action; for those things or actions <she lied to Congress but was never punished therefor>. therefore, adv. (l4c) 1. For that reason; on that ground or those grounds . 2. To that end <she wanted to become a tax lawyer, and she therefore applied for the univer­ Also sity's renowned LL.M. program in taxation>. termed thereupon. therefrom, adv. (l3c) From that, it, or them . therein, adv. (bef. 12c) l. In that place or time . 2. Inside or within that thing; inside or within those things . 3. In that regard, circumstance, or particular . thereinafter, adv. (1818) Later in that thing (such as a speech or document) 49.] - third-party, adj. third-party, vb. (1965) To bring (a person or entity) into litigation as a third-party defendant <seeking indem­ nity, the defendant third-partied the surety>. [Cases: Federal Civil Procedure (;::::>281; Parties (';=:49.] third-party action. See ACTION (4). third-party beneficiary. See BENEFICIARY. third-party-beneficiary contract. See CONTRACT. third-party business-buyout agreement. See AGREE­ MENT.

third-party check. (1904) A check that the payee indorses to another party - for example, a customer check that the payee indorses to a supplier. - A person who takes a third-party check in good faith and without notice ofa security interest can be a holder in due course. third-party complaint. See COMPLAINT. third-party consent. (1942) A person's agreement to official action (such as a search of premises) that affects another person's rights or interests.• To be effective for a search, third-party consent must be based on the consenting person's common authority over the place

third-party defendant

to be searched or the items to be inspected. See COM­ [Cases: Searches and Seizures

MON-AUTHORITY RULE.

third-party defendant. (1927) A party brought into a lawsuit by the original defendant. [Cases: Federal Civil Procedure (;=-"'281; Parties 12(2),29.) throwaway, n. Slang. 1. An unemancipated minor whose parent or caregiver has forced him or her to leave home. 2. A runaway whose parent or caregiver refuses to allow him or her to return home. Cf. RUNAWAY. throwback rule. (1972) Tax. l. In the taxation oftrusts, a rule requiring that an amount distributed in any tax year that exceeds the year's distributable net income must be treated as if it had been distributed in the pre­ ceding year. -The beneficiary is taxed in the current year although the computation is made as if the excess had been distributed in the previous year. If the trust did not have undistributed accumulated income in the preceding year, the amount of the throwback is tested against each of the preceding years. IRC (26 USCA) §§ 665-66S. [Cases: Internal Revenue (;::::>4019.] 2. A taxation rule requiring a sale that would otherwise be exempt from state income tax (because the state to which the sale would be assigned for apportionment purposes does not have an income tax, even though the seller's state does) to be attributed to the seller's state and thus subjected to a state-level tax. _ This rule applies only if the seller's state has adopted a throw­ back rule. throw out, vb. (1817) To dismiss (a claim or lawsuit). thrust-upon conflict. See CONFLICT OF INTEREST. thumbprint. See FINGERPRINT. ticket, n. 1. A certificate indicating that the person to whom it is issued, or the holder, is entitled to some right or privilege <she bought a bus ticket for Miami>. 2. CITATION (2) . 3. BALLOT (2) . ticket of leave. Archaic. The English equivalent of parole. ticket-of-leave man. A convict who has obtained a ticket ofleave. ticket speculator. A person who buys tickets and then resells them for more than their face value; in slang, a scalper. See SCALPER (1). tidal, adj. Affected by or having tides. _ For a river to be "tidal" at a given spot, the water need not necessarily

be salt, but the spot must be one where the tide, in the ordinary and regular course of things, flows and reflows. tide. The rising and falling of seawater that is produced by the attraction of the sun and moon, uninfluenced by special winds, seasons, or other circumstances that create meteorological and atmospheric meteorological tides; the ebb and flow of the sea. - Tides are used to measure a shore's upland boundary. lower low tide. The lowest point of the daily tide. mean high tide. lhe average of all high tides, esp. over a period of 18.6 years. Also termed ordinary high tide. mean lower low tide. The average of lower low tides over a fixed period. mean low tide. Ihe average of all low tides both low and lower low over a fixed period. neap tide (neep). A tide, either high tide or low tide, that is lower than average because it occurs during the first or last quarter of the moon, when the sun's attraction partly counteracts the moon's. ordinary high tide. See mean high tide. spring tide. A tide, either high tide or low tide, that is higher than average because it occurs during the new moon and full moon. tideland. (ISc) Land between the lines of the ordinary high and low tides, covered and uncovered successively by the ebb and flow of those tides; land covered and uncovered by the ordinary tides. [Cases: Navigable Waters (;::::>36(3).] tidesman. English law_ A customhouse officer appointed to watch or attend upon ships until the customs are paid. - A tidesman boards a ship at its arrival in the mouth of the Thames and comes up with the tide. See CUSTOMHOUSE.

tidewater. (lSc) Water that falls and rises with the ebb and flow of the tide. - The term is not usu. applied to the open sea, but to coves, bays, and rivers. tideway. (ISc) Land between high- and low-water marks. [Cases: Navigable Waters (;::::> 36(3).) tie, n. 1. An equal number of votes for two candidates in an election. [Cases: Elections C:::;23S.] 2. An equal number of votes cast for and against a particular measure by a legislative or deliberative body. - In the U.S. Senate, the Vice President has the deciding vote in the event of a tie. U.S. Const. art.!, § 3. See tie vote under VOTE. tied product. See TYING ARRANGEMENT (1). tied service. See TYING ARRANGEMENT (1). tie-in arrangement. See TYING ARRANGEMENT. tiempo inhabil. Hist. Louisiana law. The time at which a person becomes insolvent. tiercear. See TERCER. tiered partnership. See PARTNERSHIP.

tie vote. See VOTE (3). TIF. abbr. TAX-INCREMENT FINANCING. tight, adj. Slang. (Of a note, bond, mortgage, lease, etc.) characterized by summary and stringent clauses pro­ viding the creditor's remedies in case of default. TILA. abbr. Truth in Lending Act. See CONSUMER CREDIT PROTECTIO:>l ACT. [Cases: Consumer Credit tillage (til-ij), n. (1Sc) A place tilled or cultivated; land under cultivation as opposed to land lying fallow or in pasture. till-tapping. (1893) Slang. Theft of money from a cash register. timber easement. See EASEMENT. timber lease. See LEASE. timber rights. See timber easement under EASEMENT. time. (bef. 12c) 1. A measure of duration. 2. A point in or period of duration at or during which something is alleged to have occurred. 3. Slang. A convicted crimi­

nal's period of incarceration.

dead time. (1909) Time that does not count for a par­

ticular purpose, such as time not included in calculat­ ing an employee's wages or time not credited toward a prisoner's sentence. - The time during which a prisoner has escaped, for example, is not credited toward the prisoner's sentence. Also termed nonrun time. [Cases: Labor and Employment (::::;2311; Sen­ tencing and Punishment (::::; 1155-1182.] earned time. A credit toward a sentence reduction awarded to a prisoner who takes part in activities designed to lessen the chances that the prisoner will commit a crime after release from prison. - Earned time, which is usu. awarded for taking educational or vocational courses, working, or participating in certain other productive activities, is distinct from good time, which is awarded simply for refraining from misconduct. Cf. good time. [Cases: Prisons (::::; 243.] flat time. (1943) A prison term that is to be served without the benefit of time-reduction allowances for good behavior and the like. good time. (1886) 'Ihe credit awarded to a prisoner for good conduct, which can reduce the duration of the prisoner's sentence. Cf. GOOD BEHAVIOR; earned time. [Cases: Prisons jail-credit time. See TAIL CREDIT. nonrun time. See dead time. street time. The time that a convicted person spends on parole or on other conditional release. _ If the person's parole is revoked, this time mayor may not be credited toward the person's sentence, depending on the jurisdiction and the particular conditions of that person's parole. See dead time. time agreement. 1. A pact made by the party leaders in the U.S. Senate to limit the time allowed for debate

on a bill or amendment. 2. See UNANIMOUS-CONSENT AGREEMENT.

time arbitrage. See ARBITRAGE. time-bar, n. (1881) A bar to a legal claim arising from the lapse of a defined length of time, esp. one contained in a statute of limitations. [Cases: Limitation of Actions - time-barred, adj. time-bargain. See FUTURES CONTRACT. time bill. See time draft under DRAFT. time certain. 1. A definite, specific date and time. Cf. DATE CERTAI~. 2. Parliamentary law. A specified time or condition for which a matter's consideration is scheduled or to which its consideration is postponed. See postpone definitely under POSTPONE (3); speCial order under ORDER (4). time charter. See CHARTER (8). time check. See TIMESHEET. time deposit. See DEPOSIT (2). time draft. See DRAFT. time immemorial. (17c) 1. A point in time so far back that no living person has knowledge or proof contra­ dicting the right or custom alleged to have existed since then. - At common law, that time was fixed as the year 1189, the year that Henry II of England died. - Also termed time out of memory; time out of mind; time of memory. 2. A point in time beyond which legal memory cannot go. See LEGAL MEMORY. 3. A very long time. time insurance. See INSURANCE. time is of the essence. See OF THE ESSENCE. time-is-of-the-essence clause. Contracts. A contrac­ tual provision making timely performance a condi­ tion. [Cases: Contracts (::::;211; Vendor and Purchaser Cr'='78.] time letter of credit. See LETTER OF CREDIT. time loan. See term loan under LOAN. time note. See NOTE (1). time of memory. Archaic. See TIME IMMEMORIAL (1). time option. See OPTION (2). time order. See ORDER (8). time out of memory. See TIME IMMEMORIAl.. time out of mind. See TIME IMMEMORIAl.. time-place-or-manner restriction. (1974) Constitu­ tionallaw. A government's limitation on when, where, or how a public speech or assembly may occur, but not on the content of that speech or assembly. - As long as such restrictions are narrowly tailored to achieve a legitimate governmental interest, they do not violate the First Amendment. Also written time, place, or manner restriction. Also termed time-place-and­ manner restriction. See PUBLIC FORUM. time policy. See INSURANCE POLICY. time-price differential. 1. A figure representing the difference between the current cash price of an item

1621

and the total cost of purchasing it on credit. [Cases: Consumer Credit C=>4: Usury C=·32.) 2. The dif­ ference between a seller's price for immediate cash payment and a different price when payment is made later or in installments. time-price doctrine. The rule that if a debt arises out of a purchase and sale, the usury laws do not apply.• If a higher price is charged for a deferred payment than for an immediate payment, the difference between the time price and the cash price is deemed compensation to the seller for the risk that the buyer will default and for the interest that the seller could have earned on an immediate payment. Because the buyer can usu. choose to postpone a purchase and save up the cash price, the buyer does not have the same status as a needy borrower who must deal with a potentially predatory lender. [Cases: Usury (;:::~~32.1 time-sharing, n. (1976) Joint ownership or rental of property (such as a vacation condominium) by several persons who take turns occupying the property. - Also termed time-share. [Cases: Estates in Property C=> l.] time-share, vb. timesheet. (1970) 1. An employee's record of time spent on the job. 2. An attorney's daily record ofbill able and non billable hours, used to generate clients' bills. Also termed (formerly) time check. See BILLABLE HOUR. time-shifting. The practice of recording a broadcast for viewing at a later time .• Time-shifting was found to be a noninfringing fair use of videotape recorders in Sony Corp. v. Universal Studios, Inc., 464 U.S. 417, 104 S.Ct. 774 (1984). [Cases: Copyrights and Intellectual Property (::::>67.1.] time unity. See unity oftime under UNITY. time value. The price associated with the length of time that an investor must wait until an investment matures or the related income is earned. Cf. YIELD TO MATURITY. timocracy (tI-mok-ra-see). (15c) 1. An aristocracy of property: government by propertied, relatively rich people. 2. A government in which the rulers' primary motive is the love of honor. TIN. abbr. See TAX-IDENTIFICATION NUMBER. tin parachute. An employment-contract provision that grants a corporate employee (esp. one below the execu­ tive level) severance benefits in the event ofa takeover. • These benefits are typically less lucrative than those provided under a golden parachute. - Also termed silver parachute. Cf. GOLDEN PARACHUTE. tip, n. 1. A piece of special information; esp., in securi­ ties law, advance or inside information passed from one person to another. See INSIDE INFORMATION: INSIDER TRADING. [Cases: Securities Regulation (;::::J60.28(2).) 2. A gratuity for service given .• Tip income is taxable. IRC (26 USCA) § 6l(a). [Cases: Internal Revenue C'=' 3163: Taxation C~3455.1 tippee. S ecurities. A person who acquires material nonpublic information from someone in a fidUciary

tithe of agistment

relationship with the company to which that infor­ mation pertains. [Cases: Securities Regulation C=> 60.28(5).] tipper. Securities. A person who is in a fiduciary relation­ ship with a company that the person possesses material inside information about, and who selectively discloses that information for trading or other personal purposes . [Cases: Securities Regulation 60.28(5).] tippling house. See PUBLIC HOUSE. TIPS. abbr. See TIPS bond under TREASURY BOND. tipstaff. A court crier.• The name derives from the crier's former practice of holding a staff tipped with silver as a badge of office. See CRIER. [Cases: Courts C=>58.] PI. tipstaves, tipstaifs. tip-stave. See SERVITOR OF BILLS. tithe (Bth), n. 1. A tenth of one's income, esp. in ref­ erence to a religiOUS or charitable gift or obligation. [Cases: Religious Societies 2. Hist. A small tax or assessment, esp. in the amount ofone-tenth. - tithe, vb. tithable, adj. "A tithe was the right of a rector to a tenth part of the produce of all the land in his parish. In some cases a rector was an individual, while in others the rectory was vested in a monastery, which appointed a vicar to perform the neces­ sary eccleSiastical duties 'vicariously' for the monastery. On the dissolution of the monasteries in the reign of Henry VIII many rectories passed into the royal hands and were granted to laymen; the result was that the right to tithes in many cases passed into lay hands. Like advowsons, tithes were deemed to be land in which the various estates could exist." Robert E. Megarry & P.V. Baker, A Manual of the Law of Real Property415 (4th ed. 1969).

great tithe. (usu. pI.) A tithe paid in kind and there­ fore considered more valuable than other tithes.• The great tithes often consisted of corn, peas, beans, hay, and wood.

mixed tithes. A tithe consisting of a natural product, such as milk or wool, obtained or cultivated by human effort. "A second species of incorporeal hereditaments is that of tithes ... the first species being usually called predial, as of corn, grass, hops, and wood; the second mixed, as of wool, milk, pigs, etc., consisting of natural products, but nurtured and preserved in part by the care of man; and of these the tenth must be paid in gross; the third personal, as of manual occupations, trades, fisheries, and the like; and of these only the tenth part of the clear gains and profits is due." 2 William Blackstone, Commentaries on the Laws of England 24 (1766).

personal tithe. A tithe ofprofits from manual occupa­ tions or trades. predial tithe. A tithe of crops (such as corn). - Also spelled praedial tithe. vicarial tithe (vI-kair-ee-al). A small tithe payable to a vicar. tithe of agistment (;:)-jist-m;:)nt). Hist. A church-levied charge on grazing land.• The tithe was paid by the

occupier of the land rather than the person whose cattle grazed on the land. See AGISTMENT. tithing. See DECENARY. Titius heres esto (Ush-ee-as heer-eez es-toh). [Latin] Roman law. Let Titius be my heir.• The phrase was the testamentary form for appointing an heir. Titius was a fictitious name often used by way of example in legal writing, esp. in forms. title. (15c) 1. lhe union of all elements (as ownership, possession, and custody) constituting the legal right to control and dispose of property; the legal link between a person who owns property and the property itself <no one has title to that land>. Cf. OWNERSHIP; pos­ SESSION. 2. Legal evidence of a person's ownership rights in property; an instrument (such as a deed) that constitutes such evidence . "Though employed in various ways, [title] is generally used to describe either the manner in which a right to real property is acquired, or the right itself. In the first sense, it refers to the conditions necessary to acquire a valid claim to land; in the second, it refers to the legal consequences of such conditions. These two senses are not only inter­ related, but inseparable: given the requisite conditions, the legal consequences or rights follow as of course; given the rights, conditions necessary for the creation of those rights must have been satisfied. Thus, when the word 'title' is used in one sense, the other sense is necessarily implied." Kent McNeil, Common Law Aboriginal Title 10 (1989).

aboriginal title. 1. Land ownership, or a claim ofland ownership, by an indigenous people in a place that has been colonized. - Also termed native title. 2. INDIAN TITLE. [Cases: Indians C= 151.] absolute title. (17c) An exclusive title to land; a title that excludes all others not compatible with it. See fee simple absolute under FEE SIMPLE. [Cases: Estates in Property adverse title. (18c) A title acquired by adverse posses­ sion. See ADVERSE POSSESSION. [Cases: Adverse Pos­ session C=·106.] after-acqUired title. (1810) Title held by a person who bought property from a seller who acquired title only after purporting to sell the property to the buyer. See AFTER-ACQUIRED-TITLE DOCTRINE. Cf. title by estoppel. [Cases: Vendor and Purchaser C='8.] apparent title. See COLOR OF TITLE. bad title. 1. See defective title, 2. See unmarketable title. clear title. (17c) 1. A title free from any encumbrances, burdens, or other limitations. [Cases: Vendor and Purchaser 130(2), 133.] 2. See marketable title. Also termed good title, defeasible title. (17c) A title voidable on the occur­ rence ofa contingency, but not void on its face, [Cases: Estates in Property C='6.] defective title. (17c) A title that cannot legally convey the property to which it applies, usu. because of some conflicting claim to that property. Also termed bad title. [Cases: Vendor and Purchaser C=' 129.]

derivative title. (l7c) 1. A title that results when an already existing right is transferred to a new owner. 2. The general principle that a transteree of property acquires only the rights held by the transferor and no more. [Cases: Vendor and Purchaser C='210.J dormant title. (17c) A title in real property held in abeyance. doubtful title. (l7c) A title that exposes the party holding it to the risk of litigation with an adverse claimant. See unmarketable title. [Cases: Vendor and Purchaser C=' 129(1), l30(2).] equitable title. (17c) A title that indicates a beneficial interest in property and that gives the holder the right to acquire formal legal title .• Before the Statute of Uses (1536), an equitable title was enforceable only in a court of chancery, not oflaw. Cf. legal title. [Cases: Vendor and Purchaser good title. (16c) 1. A title that is legally valid or effective. [Cases: Vendor and Purchaser C·::) l30(2), 133.] 2. See clear title (1). 3. See marketable title. imperfect title. (18c) A title that requires a further exercise of the granting power to pass land in fee, or that does not convey full and absolute dominion. Indian title. See INDIAN TITLE. just title. In a case of prescription, a title that the pos­ sessor received from someone whom the possessor honestly believed to be the real owner, provided that the title was to transfer ownership of the property. [Cases: Adverse Possession C=:>69.] legal title. (l7c) A title that evidences apparent owner­ ship but does not necessarily signify full and complete title or a beneficial interest. • Before the Statute of Uses (1536), a legal title was enforceable only in a court oflaw, not chancery. Cf. equitable title, [Cases: Vendor and Purchaser C=:>54.] lucrative title. Civil law. A title acquired without giving anything in exchange for the property; title by which a person acquires anything that comes as a clear gain, as by gift, descent, or devise. - Because lucrative title is usu. acquired by gift or inheritance, it is treated as the separate property ofa married person. Cf. onerous title. marketable title. (ISc) A title that a reasonable buyer would accept because it appears to lack any defect and to cover the entire property that the seller has purported to sell; a title that enables a purchaser to hold property in peace during the period of owner­ ship and to have it accepted by a later purchaser who employs the same standards of acceptability. - Also termed good title; merchantable title; clear title. [Cases: Vendor and Purchaser C'::> 130.] "One definition of a marketable title which has been put forward repeatedly is one free from all reasonable doubt. Stated another way, a marketable title is one which does not contain any manner of defect or outstanding interest or claim which may conceivably operate to deieat or impair the interest which is bargained for and is intended to be conveyed. This negative concept of marketability has become an implied invitation for courts to declare titles

1623 unmarketable if an examiner has entertained any doubt whatever with respect to them. The digests attest the painful truth that claims of a bygone era cling like bar­ nacles to land titles and encumber them long after they should have been scraped clean .... We need to replace this negative approach by a positive one which will make the marketability of titles depend solely upon their state during some recent interval oftime rather than upon their entire history." Paul E. Basye, Clearing Land Titles § 371, at 539 (1953).

native title. See aboriginal title (1).

nonmerchantable title. See unmarketable title.

onerous title (on-;Jr-3060-3082.] title by descent. (l7c) A title that one acquires by law as an heir of the deceased owner. title by devise. (1819) A title created by will. title by estoppel. Title acquired from a person who did not have title at the time of a purported conveyance

title

with a warranty but later acquired the title, which then inures to the benefit of the grantee. Cf. after­ acquired title. title by prescription. (17c) A title acquired by prescrip­ tion. See PRESCRIPTION (5). [Cases: Adverse Posses­ sion C=:·106.] title defective in form. (1836) A title for which some defect appears on the face of the deed, as opposed to a defect that arises from circumstances or extrinsic evidence. _ Title defective in form cannot be the basis ofprescription. See PRESCRIPTION (5). [Cases: Vendor and Purchaser C= 129.] title ofentry. (16c) The right to enter upon lands. title ofrecord. See record title. universal title. (17c) A title acquired by a conveyance causa mortis of a stated portion of all the conveyor's property interests so that on the conveyor's death the recipient stands as a universal successor. unmarketable title. (l8c) A title that a reasonable buyer would refuse to accept because ofpossible contlicting interests in or litigation over the property. - Also termed bad title; unmerchantable title; nonmerchant­ able title. [Cases: Vendor and Purchaser C= 130(2).] 3. The heading of a statute or other legal document . [Cases: Contracts Statutes C;::;) 109.2.] general title. A statute's name that broadly and com­ prehenSively identifies the subject matter addressed by the legislature. Cf. restrictive title. [Cases: Statutes C=109.2.] long title. The full, formal title of a statute, usu. con­ taining a brief statement oflegislative purpose. "The first Acts of Parliament did not have titles. The first time that an Act of Parliament was given a title was about 1495. Even when the long title came to be added to each Act of Parliament as a matter of course, as it did from about 1513, the long title was not regarded as part of the Act of Parliament itself. Today, however, the position is different: the long title is part of the Act of Parliament." D.J. Gifford & John Salter, How to Understand an Act of Parliament 19 (1996). "Because Parliament's clerks, rather than Parliament, provided the titles of acts, the traditional rule has been that the title could not be used for interpretive purposes .... This is no longer the practice in most English-speaking jurisdictions, for the long title, and often a short title as well, are part of the legislative bill from the very beginning. In the United States, most state constitutions require the legislative enactment to have a title that gives accurate notice of the contents of the law." William N. EskridgeJr. & Elizabeth Garett, Legislation 831 (2001).

short title. The abbreviated title ofa statute by which it is popularly known; a statutory nickname. 4. A subdivision of a statute or code <Title IX>. restrictive title. A statute's name that narrowly identi­ fies the particular subject matter addressed by the leg­ islature. Cf. general title. [Cases: Statutes C=::> 109.2.] 5. The name by which a court case or other legal pro­ ceeding is distinguished from others; STYLE (1).6. An appellation of office, dignity, or distinction . title, abstract of. See ABSTRACT OF TITLE. title, action to quiet. See action to quiet title under ACTION (4). title, chain of. See CHAIN OF TITLE. title, cloud on. See CLOUD ON TITLE. title, color of. See COLOR OF TITLE. title, covenant for. See covenant for title under COVENANT (4).

title, document of. See DOCUMENT OF TITLE. title, indicia of. See INDICIA OF TITLE. title, muniment of. See MUNIMENT OF TITLE. title, root of. See ROOT OF TITLE. title, warranty of. See warranty oftitle under WARRANTY (2).

Title VII of the Civil Rights Act of 1964. A federal law that prohibits employment discrimination and harass­ ment on the basis of race, sex, pregnancy, religion, and national origin, as well as prohibiting retaliation against an employee who opposes illegal harassment or discrimination in the workplace. - This term is often referred to simply as Title VII. 42 USCA §§ 2000e et seq. [Cases: Civil Rights C=·1l02.] Title IX of the Educational Amendments of 1972. A federal statute generally prohibiting sex discrimination and harassment by educational facilities that receive federal funds .• This term is often referred to simply as Title IX. 20 USCA §§ 1681 et seq. Civil Rights C=1067.] title clearance. The removal of impediments to the mar­ ketability ofland, esp. through title examinations. title company. See COMPANY. title deed. See DEED. title division. Archaic. A common-law system for dividing property acquired during marriage upon the dissolution of the marriage, the divisions being based on who holds legal title to the property.• Under title division, when a marriage ends in divorce, property purchased during the marriage is awarded to the person who holds title to the property. Cf. COMMUNITY PROPERTY; EQUITABLE DISTRIBUTION. title-guaranty company. See title company under COMPANY. title insurance. See INSURANCE. title jurisdiction. See TITLE THEORY. title member. See name partner under PARTNER. title-object clause. See CLAUSE. title of entry. See TITLE (2). title of record. See record title under TITLE (2). title ofright. (1917) A court-issued decree creating, trans­ ferring, or extinguishing rights .• Examples include a decree ofdivorce or judicial separation, an adjudication

1624

of bankruptcy, a discharge in bankruptcy, a decree of foreclosure against a mortgagor, an order appointing or removing a trustee, and a grant ofletters ofadministra­ tion. In all the examples listed, the judgment operates not as a remedy but as a title of right. title opinion. See OPINION (2). title registration. (1971) A system of registering title to land with a public registry, such as a county clerk's office. See TORRENS SYSTEM. [Cases: Records ~--:>9.] title retention. (1936) A form oflien, in the nature of a chattel mortgage, to secure payment of a loan given to purchase the secured item. [Cases: Chattel Mortgages (;='1.] title search. (1965) An examination of the public records to determine whether anv defects or encumbrances exist in a given property's ~hain of title.• A title search is typically conducted by a title company or a real-estate lawyer at a prospective buyer's or mortgagee's request. [Cases: Abstracts of Title 1-3; Vendor and Pur­ chaser C~231(2).1 title standards. (1938) Criteria by which a real-estate title can be evaluated to determine whether it is defec­ tive or marketable.• Many states, through associations of conveyancers and real-estate attorneys, still adhere to title standards. [Cases: Abstracts of Title 1-3; Vendor and Purchaser (;=> 130(2).] title state. See TITLE THEORY. title theory. (1907) Property law. The idea that a mortgage transfers legal title of the property to the mortgagee, who retains it until the mortgage has been satisfied or foreclosed. - Only a few American states - known as title states, title jurisdictions, or title-theory jurisdiC­ tions - have adopted this theory. Cf. LIEN THEORY. [Cases: Mortgages (;=> 136.] title transaction. (1939) A transaction that affects title to an interest in land. title unity. See unity of title under UNITY.

titulo lucrativo, qui titulus est post contractum debitum (tkh-a-Ioh loo-kra-tl-voh, kWI tich-a-Ias est pohst bn­ trak-tam deb-i-tam). [Law Latin] Hist. By a lucrative title, which occurs after the contracting of debt. titulo singular; (tich-a-loh sing-gy213.] tortious liability. See LIABILITY. tort-of-another doctrine. Torts. The principle that a party who must bring or defend an action against a third person based on a tort committed by another person is entitled to seek litigation-related damages from that other person. [Cases: Damages tort reform. (1974) A movement to reduce the amount of tort litigation, usu. involving legislation that restricts tort remedies or that caps damages awards (esp. for punitive damages) .• Advocates of tort reform argue that it lowers insurance and healthcare costs and prevents windfalls, while opponents contend that it denies plaintiffs the recovery they deserve for their injuries. torture, Yl. (16c) The intliction ofintense pain to the body or mind to punish, to extract a confession or informa­ tion, or to obtain sadistic pleasure. - torture, vb. "By torture I mean the Infliction of physically founded suf­ fering or the threat immediately to inflict it, where such infliction or threat is intended to elicit, or such infliction is incidental to means adopted to elicit, matter of intelligence or forensiC proof and the motive is one of military, civil, or eccleSiastical interest." James Heath, Torture and English Law3 (1982).

torture by proxy. See extraordinary rendition under RENDITION.

torture flight. See extraordinary rendition under

REN­

DITION.

total, adj. (14c) 1. Whole; not divided; full; complete. 2. Utter; absolute.

total assignment. See ASSIGNMENT (2). total breach. See BREACH OF CONTRACT. total disability. See DISABILITY (2). total-disability insurance. See general-disability insur­ ance under INSURANCE. total eviction. See EVICTION. total failure of consideration. See FAILURE OF CONSID­ ERATION.

total incorporation. See INCORPORATION. totality-of-the-circumstances test. (1959) Criminal pro­ cedure. A standard for determining whether hearsay (such as an informant's tip) is sufficiently reliable to establish probable cause for an arrest or search warrant. • Under this test - which replaced Aguilar-Spinelli's two-pronged approach - the reliability ofthe hearsay is weighed by focusing on the entire situation as described in the probable-cause affidavit, and not on anyone specific factor. Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317 (1983). Cf. AGUILAR-SPINELLI TEST. [Cases: Arrest (;=J63.4(7); Searches and Seizures (;=J 115.1.] total loss. See LOSS. total-offset rule. Torts. A theory of damages holding that the eroding effect of inflation offsets the accrual of interest on an award and makes it unnecessary to discount future damages to their present value. [Cases: Damages (;=J226.] total repudiation. See REPUDIATION. tota re perspecta (toh-t;J ree p;Jr-spek-t;J). [Latin] Hist. The whole matter being taken into account or consid­ ered. - Also termed tota materia perspecta. totidem verbis. [Latin] In so many words. toties quoties (toh-shee-eez kwoh-shee-eez or toh-sheez kwoh-sheez). [Latin] Hist. As often as. toto caelo (toh-toh see-Ioh), adv. [Latin "by the whole extent of the heavens"] As far as possible; diametrically . toto genere (toh-toh jen-;J-ree). [Latin] Hist. In their whole character; entirely. Totten trust. See TRUST. touch, vb. Marine insurance. To stop at a port, usu. for a brief period. [Cases: Insurance (;=J3059.] touch and stay. Marine insurance. A right, granted by an insurer to an insured vessel, to stop and remain at certain designated points in the course of the voyage. • A vessel that has the power to touch and stay at a place must confine itself strictly to the terms of the per­ mission given, and any deviation during a stay - for example, by shipping or landing goods - will discharge the underwriters, unless the vessel has permission to trade as well as to touch and stay. [Cases: Insurance (;=J3059.] Touhy regulations. The rules governing procedures for document production by federal agencies for purposes of litigation. 28 C.P.R. 16.21 et seq .• The term comes from United States ex reI. Touhy v. Ragen, 340 U.S. 462,

71 S.Ct. 416 (1951). In that case, an FBI agent refused to produce certain records under a subpoena duces tecum because a departmental regulation expressly stated that the Attorney General was the only person with authority to produce the documents. The United States Supreme Court upheld the regulation's validity. [Cases: Witnesses (;=J 16.] tout court (too koor), adv. [French "simply, without qual­ ification"] Very briefly; without explanation. tout ensemble (toot on-son-bl;J), n. [French "all together"] The overall visual effect of a design; general effect .• The phrase denotes a way of comparing two designs, by looking at the total impact rather than comparing individual design elements. That is the technique used in determining whether a design infringes someone's trade-dress rights, or if a design-patent application shows a novel and nonobvious change from existing designs. Although the phrase is adverbial in French, it is typically used as a noun in English. See ANTIDIS­ SECTION RULE.

touting, n. The solicitation ofbusiness by highly recom­ mending a security or product, esp. when the recom­ mendation's basis is largely puffery. tout temps prist et encore prist. [Law French] Common­ law pleading. The clause in a plea of tender stating that the pleader is and always has been ready to pay. See PLEA OF TENDER.

towage (toh-ij), n. 1. The act or service of towing ships and vessels, usu. by means of a small vessel called a tug. [Cases: Towage (;=J 1.] 2. The charge for such a service. [Cases: Towage (;=J5.] toward, adj. 1. In the direction of; on a course or line leading to (some place or something). 2. Coming soon; not long before. to wit (too wit), adv. (14c) Archaic. That is to say; namely . - Sometimes spelled to-wit; towit. town. 1. A center of population that is larger and more fully developed than a village, but that (traditionally speaking) is not incorporated as a city. [Cases: Towns (;=J 1.] 2. The territory within which this population lives. 3. Collectively, the people who live within this territory. Cf. CITY. "A town is a precinct anciently containing ten families, whereupon in some countries they are called tithings, within one of which tithings every man must be dwelling, and find sureties for his good behaviour, else he that taketh him into his house is to be amerced in the leet." Sir Henry Finch, Law, or a Discourse Thereof 80 (1759).

town-bonding act. A law authorizing a town, county, or other municipal corporation to issue its corporate bonds for the purpose of aiding in construction, often of railroads. - Also termed town-bonding law. [Cases: Towns (;=J52.] town clerk. See CLERK (1).

1629

town collector. A town officer charged with collecting the taxes assessed by a town. [Cases: Towns C=>59.] town commissioner. See COMMISSIONER. town crier. Hist. A town officer responsible for making proclamations related to town business. town hall. A building that houses the offices ofa town's government. [Cases: Towns (;::'35.] townhouse. A dwelling unit having usu. two or three stories and often connected to a similar structure by a common wall and (particularly in a planned-unit development) sharing and owning in common the sur­ rounding grounds. - Also termed townhome. town meeting. 1. A legal meeting of a town's qualified voters for the administration of local government or the enactment of legislation.• Town meetings of this type are common in some New England states. [Cases: Towns 2. More generally, any assembly of a town's citizens for the purpose of discussing politi­ cal, economic, or social issues. 3. Modernlv, a televised event in which one or more politicians m'eet and talk with representative citizens about current issues. town order. An official written direction by the auditing officers of a town, directing the treasurer to pay a sum of money. - Also termed town warrant. [Cases: Towns ~';>50.1

town purpose. A municipal project or expenditure that concerns the welfare and advantage of the town as a whole. [Cases: Towns 046(1).] township. 1. In a government survey, a square tract six miles on each side, containing thirty-six square miles ofland. 2. In some states, a civil and political subdivi­ Abbr. tp. [Cases: Municipal Cor­ sion of a county. porations (;::'6.] township trustee. See TRUSTEE (1). townsite. A portion of the public domain segregated by proper authority and procedure as the site for a town. town treasurer. An officer responsible for maintaining and disbursing town funds. [Cases: Towns e:.Y 30.] town warrant. See TOWN ORDER. toxic, adj. Having the character or producing the effects of a poison; produced by or resulting from a poison; poisonous. - Also termed toxical. [Cases: Environ­ mental Law C=:>413.] toxicant (tok-si-bnt), n. (1879) A pOison; a toxic agent; any substance capable of producing toxication or poi­ soning. toxic asset. See troubled asset under ASSET. toxicate, vb. Archaic. To poison. See INTOXICATION. toxic convert. See DEATH-SPIRAL DEAL. toxicology (tok-si-kol-a-jee). (18c) The branch of medicine that concerns poisons, their effects, their recognition, their antidotes, and generally the diag­ nosis and therapeutics of poisoning; the science of poisons. - toxicological (tok-si-ka-loj-i-k.,J), adj. toxic tort. See TORT.

trade deficit

toxic waste. See WASTE (2). toxin, n. (1886) 1. Broadly, any pOison or toxicant. 2. As used in pathology and medical jurisprudence, any dif­ fusible alkaloidal substance - such as the ptomaines, and esp. the poi­ abrin, brucin, or serpent venoms sonous products of disease-producing bacteria. tp. abbr. TOWNSHIP. TPL. abbr. Third-party logistical service provider. See FREIGHT FORWARDER. TPPM. abbr. TANGIBLE-PERSONAL-PROPERTY MEMO­ RANDUM. TPR. abbr. TERMINATION OF PARENTAL RIGHTS. traces, n. See retrospectant evidence under EVIDENCE. tracing, n. (16c) 1. The process of tracking property's ownership or characteristics from the time of its origin to the present . tract. (14c) A specified parcel ofland .

tract index. See INDEX (1).

tractusfuturi temporis (trak-tJs fyoo-t[y]oor-I tern-pd­

ris). [Latin] Hist. A tract offuture time. trade, n. (14c) 1. The business of buying and selling or bartering goods or services; COMMERCE. inland trade. Trade wholly carried on within a country, as distinguished from foreign commerce. precarious trade. Int'llaw. Trade by a neutral country between two belligerent powers, allowed to exist at the latter's sufferance. 2. A transaction or swap. 3. A business or industry occupation; a craft or profession. - trade, vb. trade acceptance. See ACCEPTANCE (4). trade agreement. 1. An agreement such as the North American Free Trade Agreement between two or more nations concerning the buying and selling of each nation's goods. [Cases: Customs Duties 10.] 2. COLLECTIVE-BARGAINING AGREEMENT. trade and commerce. Every business occupation carried on for subsistence or profit and involving the elements of bargain and sale, barter, exchange, or traffic. Trade and Development Program. See UNITED STATES TRADE AND DEVELOPMENT AGENCY. trade association. See ASSOCIATION. trade council. A central labor union; the central orga­ nization of a local trade union. - Also termed trades council. See UNION. trade defamation. See DEFAMATION. trade deficit. See DEFICIT.

1630

trade discount

trade discount. See DISCOUNT. trade disparagement. The common-law tort of belittling someone's business, goods, or services with a remark that is false or misleading but not necessarily defama­ tory.• To succeed at the action, a plaintiff must prove that (1) the defendant made the disparaging remark; (2) the defendant either intended to injure the business, knew the statement was false, or recklessly disregarded whether it was true; and (3) the statement resulted in special damages to the plaintiff, usu. by passing off. ­ Also termed commercial disparagement; product dis­ paragement; injurious falsehood. Cf. trade defamation under DEFAMATION. [Cases: Antitrust and Trade Regu­ lation C=-->25.] trade dispute. 1. Int'llaw. A dispute between two or more countries arising from tariff rates or other matters related to international commerce. 2. Labor law. A dispute between an employer and employees over pay, working conditions, or other employment-related matters.• An employee who leaves during a trade dispute is not entitled to benefits under the Unemploy­ ment Insurance Act. trade dollar. Hist. A United States dollar coin, made of silver, issued from 1873 to 1878 for use in foreign trade, esp. in eastern Asia.• A trade dollar was legal tender within the U.S. until 1876 when the coin's silver content fell to less than one dollar. From 1878 to 1885, trade dollars were minted only in proof sets, then dis­ continued. trade draft. See DRAFT. trade dress. Trademarks. The overall appearance and image in the marketplace of a product or a commer­ cial enterprise .• For a product, trade dress typically comprises packaging and labeling. For an enterprise, it typically comprises design and decor. Ifa trade dress is distinctive and nonfunctional, it may be protected under trademark law. - Also termed get-up; look and feel. [Cases: Trademarks (;:::J 1061.] "The 'trade dress' of a product is essentially its total image and overall appearance. It 'involves the total image of a product and may include features such as size, shape, color or color combinations, texture, graphics, or even particular sales techniques.'" Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 765 n.l, 1125.0.2755,2755 n.l (1992).

trade embargo. See EMBARGO (3). trade fixture. See FIXTURE. trade gap. See trade deficit under DEFICIT. trade guild. See GUILD (1). trade libel. Trade defamation that is written or recorded. See LIBEL; trade defamation under DEFAMATION; DIS­ PARAGEMENT (3). Cf. trade slander under SLANDER. [Cases: Libel and Slander l30.) trademark, n. (1838) 1. A word, phrase, logo, or other graphic symbol used by a manufacturer or seller to dis­ tinguish its product or products from those of others. • The main purpose of a trademark is to deSignate the source of goods or services. In effect, the trade­ mark is the commercial substitute for one's signature.

To receive federal protection, a trademark must be (1) distinctive rather than merely descriptive or generic; (2) affixed to a product that is actually sold in the market­ place; and (3) registered with the U.S. Patent and Trade­ mark Office. In its broadest sense, the term trademark includes a servicemark. Unregistered trademarks are protected under common-law only, and distinguished with the mark "TM." - Often shortened to mark. Cf. SERVICEMARK. [Cases: Trademarks 1021.} 2. The body oflaw dealing with how businesses distinctively identify their products. Abbr. TM. See LANHAM ACT. Cf. SERVICEMARK; registered trademark; BRAND; TRADENAME.

"The protection of trade·marks is the law's recognition of the psychological function of symbols. If it is true that we live by symbols, it is no less true that we purchase goods by them. A trade-mark is a merchandising short· cut which induces a purchaser to select what he wants, or what he has been led to believe he wants. The owner of a mark exploits this human propensity by making every effort to impregnate the atmosphere of the market with the drawing power of a congenial symbol. Whatever the means employed, the aim is the same to convey through the mark, in the minds of potential customers, the desir­ ability of the commodity upon which it appears. Once this is attained, the trade-mark owner has something of value. If another poaches upon the commercial magnetism of the symbol he has created, the owner can obtain legal redress." Mishawaka Rubber & Woolen Mfg. Co. v, 5.S. Kresge Co.• 316 U.s. 203, 205, 62 S.Ct. 1022, 1024 (1942) (Frankfurter,j.). "A trademark functions on three different levels: as an indication of origin or ownership, as a guarantee of con­ stancy of the quality or other characteristics of a product or service, and as a medium of advertisement. Thus, a trademark guarantees, identifies, and sells the product or service to which it refers. These three facets of a trademark - of differing importance at different times, in different lines of business and for different products or services --- are somewhat correlative. The classical function, that of identification, has been primarily respon· sible for molding the development of trademark law. The significance of the guarantee function has been somewhat exaggerated, while the implications of the advertisement function still await full recognition in the law." 3 Rudolf Call mann. The Law of Unfair Competition, Trademarks and Monopolies § 17.01, at 2 (4th ed. 1998).

abandoned trademark. A mark whose owner has dis­ continued using it and has no intent to resume using it in the ordinary course of trade, or has allowed it to become a generic term or otherwise to lose its dis­ tinctive Significance.• Under § 45 of the Lanham Act, nonuse of a mark for three consecutive years is prima facie evidence of abandonment. The owner of an abandoned mark has no trademark rights to exclude others from using it. - Also termed aban­ 1155.} doned mark. [Cases; Trademarks arbitrary trademark. A trademark containing common words that do not describe or suggest any characteris­ tic ofthe product to which the trademark is assigned. • Because arbitrary marks are neither descriptive nor suggestive of the goods or services in connection with which they are used, they are inherently distinc­ tive, require no proofof secondary meaning, and are entitled to strong legal protection. A name that would be generic if used with one product may be arbitrary if used with another. For example, "Bicycle" may be

1631

trademark

registered to identify playing cards, but it could not be protected as a mark to identify bicycles. Also termed arbitrary mark; arbitrary name. [Cases: Trade Regulation C::::; 1039.] certification trademark. A word, symbol, or device used on goods or services to certify the place of origin, material, mode of manufacture, quality, or other characteristic. See 15 USCA § 1127. Also termed certification mark. Cf. collective trademark. [Cases: Trademarks ~~ 1066.] coined trademark. See fanciful trademark. collective trademark. (1941) A trademark or service­ mark used by an association, union, or other group either to identify the group's products or services or to signify membership in the group. - Collec­ tive marks such as "Realtor" or "American Peanut Farmers" - can be federally registered under the Lanham Act. Also termed collective mark. Cf. cer­ tification trademark. [Cases: Trademarks (;:::: 1067.] Community trademark. A trademark registered with the European Union Trademark Office and recog­ nized in all EU countries. Also termed Community i mark. [Cases: Trademarks ~J 1261.] composite trademark. (bm-poz-it mahrk). A trade­ mark or servicemark made up of several words that form a distinctive whole, even if the individual words are ordinary. _ Advertising slogans are often pro­ tectable as composite marks. A trademark registrant can establish ownership in the whole mark, but must disclaim ownership in any unregistrable parts. . Also termed composite mark; hybrid mark; hybrid I trademark. (Cases: Trademarks C::::;' 1058.] counterfeit trademark. A spurious mark that is identi­ cal to, or substantially indistinguishable from, a reg­ istered trademark. 15 USCA § 1116(d)(l)(B). - Also termed counterfeit mark. [Cases: Trademarks 1432, 1787.] descriptive trademark. A trademark that is a meaning­ ful word in common usage or that merely describes or suggests a product. - This type of trademark is entitled to protection only if it has acquired dis­ tinctiveness over time. Also termed descriptive mark; weak mark; weak trademark. See SECONDARY MEANING. [Cases: Trademarks C~ 1035.] 'The bar against descriptive marks simply reflects the requirement of distinctiveness. 15 U.S,C.A. § 1052(e)(l). It often is said that a mark should not be analyzed in a piecemeal fashion. Instead, the mark as a whole must be tested for descriptiveness or secondary meaning. A mark that merely describes a product cannot possibly distin­ guish one producer from another. As an obvious example, 'apple' would be a descriptive name for that frUit, and, as a mark, would serve only to confuse the consumer, for it would tell nothing about the different origins of a selection of apples produced by different producers. Moreover, to allow an owner to pre-empt the term 'apple' would afford the owner a monopoly of something that is necessary to describe the goods for sale." Arthur R. Miller & Michael H. Davis, Intellectual Property: Patents, Trademarks, and Copyright in a Nutshell 163 (2d ed. 1990).

disparaging trademark. A trademark that tends to bring a person or class of people into contempt or disrepute. - Section 2(a) of the Lanham Act prohib­ its the registration of disparaging marks. 15 USCA § 1052(a). - Also termed disparaging mark. See pro­ hibited and reserved trademark. [Cases: Trademarks C='1073.) distinctive trademark. A very strong trademark, one that consumers immediately and consistently asso­ ciate with specific goods and services. - Distinctive trademarks are usu. fanciful, arbitrary, or suggestive, but descriptive trademarks and common names can become distinctive if they become so well known as to acquire a secondary meaning. Also termed distinc­ tive mark. [Cases: Trademarks 1022.] prohibited and reserved trademark. A mark that is not protected under the Lanham Act because it either fall into an expressly excluded category or else is similar to a mark granted by statute to another. 15 USCA § 1052. Also termed prohibited and reserved mark. 1243.] [Cases: Trademarks pure trademark. See technical trademark. registered trademark. A trademark that has been filed and recorded with the Patent and Trademark Office. • A federally registered trademark is usu. marked by the symbol "5(5),7,335.]

trailer clause. An employee's promise to assign to the employer the rights to all inventions developed while employed and for a specified time afterward. - For the covenant to be enforceable, the time restriction must be reasonable. - Also termed holdover clause. traitor, n. 1. A person who commits treason against his or her country. [Cases: Treason (;:::'10.] 2. One who betrays a person, a cause, or an obligation. - traitor­ ous, adj. tramp, n. 1. A person who roams about from place to place, begging or living without labor or visible means of support; a vagrant. 2. TRAMP STEAMER. tramp corporation. See CORPORATION. tramp steamer. A ship that is not scheduled to sail between prearranged ports of call but that stops at those ports for which it has cargo. _ A tramp steamers typically carries bulk cargoes such as oil, grain, coal, steel, iron ore, or lumber, and is contracted with a char­ terparty rather than a bill oflading. - Often shortened to tramp. tranche (transh), n. [French "slice") Securities. 1. A bond issue derived from a pooling of similar debt obligations. • A tranche usu. differs from other issues by maturity date or rate of return. 2. A block ofbonds designated for sale in a foreign country. - Also spelled tranch; trench. See COLLATERALIZED MORTGAGE OBLIGATION. transact, vb. 1. To carryon or conduct (negotiations, business, etc.) to a conclusion . 2. Civil law. To settle (a dispute) by mutual conces­ sion. See TRANSACTION (4). 3. To carryon or conduct

negotiations or business . transactio (tran-sak-shee-oh), n. [Latin "compromise"] Roman law. 1he renunciation of a contested claim or defense in litigation in consideration of a quid pro quo. Pl. transactiones (tran-sak-shee-oh-neez). transaction, n. (17c) 1. The act or an instance of con­ ducting business or other dealings; esp., the formation, performance, or discharge of a contract. 2. Some­ thing performed or carried out; a business agreement or exchange. 3. Any activity involving two or more persons. 4. Civil law. An agreement that is intended by the parties to prevent or end a dispute and in which they make reciprocal concessions. La. Civ. Code art. 3071. transactional, adj. arm's-length transaction. 1. A transaction between two unrelated and unaffiliated parties. 2. A transac­ tion between two parties, however closely related they may be, conducted as if the parties were strangers, so that no cantlict of interest arises. closed transaction. Tax. A transaction in which an amount realized on a sale or exchange can be estab­ lished for the purpose of stating a gain or loss. [Cases: Internal Revenue (;:::::>3393.] colorable transaction. (18c) A sham transaction having the appearance of authenticity; a pretended transac­ tion . transactional audit. See AUDIT. transactional immunity. See IMMUNITY (3). transactional lawyer. 1. See LAWYER. 2. See OFFICE PRACTITIONER.

transactional takeover defense. See

TAKEOVER DE­

FENSE.

transaction causation. See CAUSATION. transaction cost. See COST (1). transaction-or-occurrence test. (1957) A test used to determine whether, under Fed. R. Civ. P. 13(a), a par­ ticular claim is a compulsory counterclaim. _ Four different tests have been suggested: (1) Are the legal and factual issues raised by the claim and counterclaim largely the same? (2) Would res judicata bar a later suit on the counterclaim in the absence ofthe compulsory­ counterclaim rule? (3) Will substantially the same evidence support or refute both the plaintiff's claim and the counterclaim? (4) Are the claim and counter­ claim logically related? See compulsory counterclaim under COUNTERCLAIM. [Cases: Federal Civil Procedure (;:::::>776; Set-off and Counterclaim (;::::'60.) transaction slip. See CONFIRMATION SLIP, transcarceration. (1987) The movement of prisoners or institutionalized mentally ill persons from facility to facility, rather than from a prison or an institution back to the community, as when a prisoner is transferred to a halfway house or to a drug-treatment facility. [Cases: Prisons 176-222.] 3. A conveyance of property or title from one person to another. [Cases: Bills and

Notes C=::> 176-222.]

colorable transfer. A sham transfer having the appear­

ance of authenticity; a pretended transfer. See ILLU­ SORY-TRANSFER DOCTRINE. [Cases: Fraudulent Conveyances C=::> 109, l31.1.] constructive transfer. (1852) A delivery of an item­ esp. a controlled substance - by someone other than the owner but at the owner's direction. [Cases: Con­ trolled Substances C=::>32, 82.] incomplete transfer. Tax. A decedent's inter vivos transfer that is not completed for federal estate-tax purposes because the decedent retains significant powers over the property's possession or enjoyment. • Because the transfer is incomplete, some or all of the property's value will be included in the transferor's gross estate. IRC (26 USCA) §§ 2036-2038. [Cases: Internal Revenue C=::>4159(3).] inter vivos transfer (in-t::lrVI-Vohs orvee-vohs). (1930) A transfer of property made during the transferor's lifetime. testamentary transfer. A transfer made in a will. • The transfer may be of something less than absolute ownership. Cf. testamentary gift under GIFT. [Cases: Wills C=::>86.]

transfer in contemplation of death. See gift causa mortis under GIFT. transfer in fraud ofcreditors. (1883) A conveyance of property made in an attempt to prevent the trans­ feror's creditors from making a claim to it. [Cases: Fraudulent Conveyances C=::> 1.] transfer, vb. (14c) 1. To conveyor remove from one place or one person to another; to pass or hand over from one to another, esp. to change over the possession or control of. 2. To sell or give. transferable (trans-f::lr-::l-b::ll), adj. (14c) Capable of being transferred, together with all rights of the original holder. transferable letter of credit. See LETTER OF CREDIT. transferable vote. See single transferable vote under VOTE (1).

transfer agent. See AGENT (2). transfer-agent-run dividend-reinvestment plan. See DIVIDEND-REINVESTMENT PLAN. transferee. One to whom a property interest is conveyed. transferee liability. (1951) Tax. The liability of a trans­ feree to pay taxes owed by the transferor.• This lia­ bility is limited to the value of the asset transferred. The Internal Revenue Service can, for example, force a donee to pay the gift tax when the donor who made the transfer cannot pay it. IRC (26 USCA) §§ 6901­ 6905. [Cases: Internal Revenue C=::>4817; Taxation C=::> 3480.] transference. Scots law. The act of substituting a repre­ sentative for a deceased litigant in a pending action. • This is similar to the common law's substitution of parties. transfer hearing. See HEARING. transfer in fraud of creditors. See TRANSFER. transfer of a case. (1843) The removal of a case from the jurisdiction of one court or judge to another by lawful authority. - Also termed transfer ofa cause. See REMOVAL (2). [Cases: Removal of Cases C=::> 16.] transfer of venue. See CHANGE OF VENUE. transferor. (1875) One who conveys an interest in property. transfer payment. (usu. pl.) (1945) A governmental payment to a person who has neither provided goods or services nor invested money in exchange for the payment.• Examples include unemployment com­ pensation and welfare payments. [Cases: United States C=::>82(1).] transfer price. See PRICE. transferred intent. See INTENT (1). transferred-intent doctrine. (1957) The rule that if one person intends to harm a second person but instead unintentionally harms a third, the first person's criminal or tortious intent toward the second applies to the third as well. • Thus, the offender may be prosecuted for an

translation

1637

intent crime or sued by the third person for an inten­ tional tort. See INTENT. [Cases: Assault and Battery C~:> 3,49; Homicide 702; Torts ~ lIS.] transferred malice. See MALICE. transfer statute. A provision that allows or mandates the trial of a juvenile as an adult in a criminal court for a criminal act. - Every state has some form of transfer statute. The Supreme Court has held that a juvenile cannot be transferred to criminal court under a discre­ tionary statute "without ceremony without hearing, without effective assistance of counsel, without a state­ ment of reasons." Kent v. United States, 383 U.S. 554,86 S.Ct. 1045, 1053-54 (1966). [Cases: Infants 68.7.] automatic-transfer statute. A law requiring the transfer from delinquency court to criminal court for certain statutorily enumerated offenses if certain statutory requirements are met. [Cases: Infants ~ 68.5, 6S.7(2).] discretionary-transfer statute. A law that allows, but does not mandate, the transfer from delinquency court to criminal court for certain statutorily enu­ merated offenses if certain statutory requirements are met. - The prosecutor has discretion to request the transfer, and the judge has discretion to order the transfer. [Cases: Infants ~6s.7.1 reverse transfer statute. A provision that allows a criminal court to return certain cases to juvenile court. [Cases: Infants ~6S.6.] Transfers to Minors Act. See UNIFORM TRANSFERS TO MINORS ACT.

transfer tax. See generation-skipping transfer tax under TAX.

transfer warranty. See WARRANTY (2). transformative use. Copyright. The use of copyrighted material in a manner, or for a purpose, that differs from the original use in such a way that the expres­ sion, meaning, or message is essentially new.• The term was coined by Judge Pierre N. Leval in a 1990 law-review article entitled Toward a Fair Use Standard, 103 Harv. L. Rev. 1105, 1111 (1990). The concept was first applied by the U.S. Supreme Court in Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 114 S.Ct. 1164 (1994). The Court held that the transformative use in that case was a fair, noninfringing use of the plaintiff's copyright. [Cases: Copyrights and Intellectual Property (;::::' 53.2.] transgenic (tranz-jen-ik), adj. Patents. Of, relating to, or describing a living organism that has been geneti­ cally altered by introducing recombinant DNA from another organism. transgress, vb. 1. To exceed the limits of (a law, rule, regulation, etc.); to break or violate. 2. To pass over (limits, boundaries, etc.). transgressor, n. transgression. Archaic. See MISDEMEANOR. transgressione, ad audiendum et terminandum (trans­ gres[h]-ee-oh-nee, ad aw-dee-en-d;Jm et t;Jf-m;J-nan­

d;Jm). See

DE TRANSGRESSIONE, AD AUDIENDUM ET

TERMINANDUM.

transgressive trust. See TRUST. transient (tran-sh;Jnt), adj. (16c) Temporary; imperma­ nent; passing away after a short time. transient, n. 1. A person or thing whose presence is tem­ porary or fleeting. 2. TRANSIENT PERSON. transient foreigner. One who visits a country without the intent to remain. transient jurisdiction. See TCRISDICTlON. transient merchant. A trader who sells merchandise at a temporary location without intending to become a permanent merchant in that place. [Cases: Licenses ~15(2).]

transient person. (18c) One who has no legal residence within a jurisdiction for the purpose of a state venue statute. Also termed transient. [Cases: Venue IS.] transit, n. (15c) 1. 1he transportation of goods or persons from one place to another. [Cases: Insurance 2137(3).] 2. Passage; the act of passing. transitional alimony. See rehabilitative alimony under ALIMONY.

transition phrase. Patents. In a patent claim, the word or phrase that relates the preamble to the body.• The transition is often the term "comprising," "having," "including," "consisting of," or "consisting essentially of." Cf. PREAMBLE (2); BODY OF A CLAIM. transitive covenant. See COVENANT (1). transitory (tran-s;J-tor-ee ortran-za-), adj. (14c) Passing from place to place; capable of passing or being changed from one place to another. transitory action. See ACTION (4). transitory treaty. See TREATY (1). transitory wrong. See WRONG. transit passage. Int'llaw. The right of a vessel or airplane to exercise freedom of navigation and overflight solely for the purpose of continuous and expeditious transit between one part of the high seas or an exclusive economic zone and another part of the high seas or an exclusive economic zone. Also termed right oftransit passage. Cf. INNOCENT PASSAGE. transit terra cum onere (tran-sit [or tran-zit] ter-a bm on-ar-ee). [Law l.atin] Hist. The land passes with its burdens. translation, n. 1. The transformation oflanguage from one form to another; esp., the systematic rendering of the language of a book, document, or speech into another language. "Generally speaking, a translation need not consist of transferring from one language into another; it may apply to the expression of the same thoughts in other words of the same language." Rasmussen v. Baker, 50 P. 819, 826 (Wyo. 1897).

translative

2. Archaic. The transfer of property. 3. Eccles. law. The removal of a bishop from one diocese to another.

translative (trans- or tranz-Iay-tiv), adj. Making or causing a transfer or conveyance. translative fact. See FACT. transmission. Civil law. The passing of an inheritance to an heir. transmit, vb. (15c) 1. To send or transfer (a thing) from one person or place to another. 2. To communicate. transmittal letter. (1914) A nonsubstantive letter that establishes a record of delivery, such as a letter to a court clerk advising that a particular pleading is enclosed for filing.• Lawyers have traditionally opened transmit­ tal letters with the phrase "Enclosed please find," even though that phrasing has been widely condemned in business-writing handbooks since the late 19th century. A transmittal letter may properly begin with a range of openers as informal as "Here is" to the more formal "Enclosed is." - Also termed cover letter. transmutation. A change in the nature of something; esp., in family law, the transformation of separate property into marital property, or of marital property into separate property. [Cases: Divorce C=>252.3(3); Husband and Wife C=>249(6).J transnational adoption. See international adoption under ADOPTION. transnational corporation. See multinational corpora­ tion under CORPORATION. transnational law. 1. The amalgam of common prin­ ciples of domestic and international law dealing esp. with problems arising from agreements made between sovereign states and foreign private parties. 2. The problems to which such principles apply. Cf. INTER­ NATIONAL LAW.

transparency. Openness; clarity; lack of guile and attempts to hide damaging information.• The word is used of financial disclosures, organizational policies and practices, lawmaking, and other activities where organizations interaction with the public. transport, vb. To carry or convey (a thing) from one place to another. transportation, n. (l6c) 1. The movement of goods or persons from one place to another by a carrier. 2. Criminal law. A type of punishment that sends the criminal out of the country to another place (usu. a penal colony) for a specified period. Cf. DEPORTA­ TION.

Transportation Security Administration. The federal agency charged with promoting safety and security of air, water, rail, and highway transportation.• The agency was created in the Department of Transporta­ tion after the terrorist attacks of September 11, 2001, and was transferred to the Department of Homeland Security in 2002. transracial adoption. See ADOPTION.

1638

transsexual. A person born with the physical character­ istics of one sex but who has undergone, or is preparing to undergo, sex-change surgery. See SEX REASSIGN­ MENT.

transshipment. Maritime law. The act of taking cargo out of one ship and loading it on another. • Trans­ shipment may also involve transfer of cargo to another mode of transportation, such as rail or truck. [Cases: Shipping C=> 112.J - transship, vb. transvestitive fact. See FACT. trap, n. (bef. 12c) 1. A device for capturing living crea­ tures, such as a pitfall, snare, or machine that shuts

suddenly.

mantrap. A booby-trap; esp., a device to catch a tres­

passer or burglar. • A mantrap is not illegal if it is designed merely to sound an alarm and not cause bodily harm. Illegal mantraps include manufactured devices such as spring guns, and dangerous hidden conditions (manufactured or natural) that can injure a person, such as pitfalls. - Also spelled man-trap. 2. Any device or contrivance by which one may be caught unawares; stratagem; snare. 3. Torts. An ultra­ hazardous hidden peril of which the property owner or occupier, but not a licensee, has knowledge .• A trap can exist even if it was not designed or intended to catch or entrap anything. [Cases: Negligence C=> 1040(3).J trashing. DECONSTRUCTION. trauma-pricing. See DRAMA-PRICING. travaux preparatoires (tra-voh pray-par-;:)-twah[r]z). [French "preparatory works"] Materials used in prepar­ ing the ultimate form of an agreement or statute, and esp. of an international treaty; the draft or legislative history of a treaty. See LEGISLATIVE HISTORY. travel-accident insurance. See INSURANCE. Travel Act. A federal law, enacted in 1961, that prohib­ its conduct intended to promote, direct, or manage illegal business activities in interstate commerce .• This statute was enacted to create federal jurisdiction over many criminal activities traditionally handled by state and local governments to help those jurisdictions cope with increasingly complex interstate criminal activity. 18 USCA § 1952. [Cases: Commerce C=>82.1O.] traveled place. (1894) A place where the public has, in some manner, acquired the legal right to travel. traveler, n. A person who passes from place to place, for any reason. traveler's check. See CHECK. traveler's letter of credit. See LETTER OF CREDIT. travel expense. See EXPENSE. traverse (trav-;:)rs), n. (15c) Common-law pleading. A formal denial of a factual allegation made in the opposing party's pleading <Smith filed a traverse to Allen's complaint, asserting that he did not know­ ingly provide false information>. See DENIAL. [Cases: Pleading C=> 112-129.] - traverse (trav-;:)rs or tr;:)­ vars), vb.

Treas. Reg.

1639 "It is said that the technical term traverse, from transverto, to turn over, is applied to an issue taken upon an indict· ment for a misdemeanor, and means nothing more than turning over or putting off the trial to a following session or assize; and that thus it is that the officer of the court asks the party whether he is ready to try then, or will traverse to the next session; though some have referred Its meaning originally to the denying or taking issue upon an indict· ment, without reference to the delay of trial, and which seems more correct," I Joseph Chitty, A Practical Treatise on the Criminal Law 486 (2d ed. 1826).

common traverse. (1841) A traverse consisting of a tender of issue that is, a denial accompanied by a formal offer for decision of the point denied - with a denial that expressly contradicts the terms of the allegation traversed. Also termed specific traverse. [Cases: Pleading ~117.] "The common or specific traverse is an express denial of a particular allegation in the opposing pleading in the terms ofthe allegation, accompanied by a tender of issue or formal offer of the point denied for trial." Benjamin J. Shipman, Handbook of Common·Law Pleading § 168, at 303 (Henry Winthrop Ballantine ed., 3d ed. 1923).

cumulative traverse. (1848) A traverse that analyzes a proposition into its constituent parts and traverses them cumulatively. - It amounts to the same thing as traversing the one entire proposition, since the several parts traversed must all make up one entire proposi­ tion or point. general traverse. (l7c) A denial of all the facts in an opponent's pleading. special traverse. (I8c) A denial of one material fact in an opponent's pleading; a traverse that explains or qualifies the denial. - The essential parts of a special traverse are an inducement, a denial, and a verifica­ tion. [Cases: Pleading ~ 118.] specific traverse. See common traverse. traverse jury. See petit jury under JURY. traverser, rI. (14c) One who traverses or denies a pleading. traverse the requirement, vb. Patents. To (1) respond in detail to a patent examiner's decision that the patent application claims more than one invention and (2) ask that the restriction requirement be reconsidered. - The traverse must specifically explain why restric­ tion should not be required, not merely assert that the requirement is wrong. Failure to traverse a requirement forfeits any rights to appeal the decision. [Cases: Patents (;:::? 104.1 treachery, n. A deliberate and willful betrayal of trust and confidence. treason, n. (l3c) The offense of attempting to overthrow the government of the state to which one owes alle­ giance, either by making war against the state or by materially supporting its enemies. - Also termed high treason; alta proditio. Cf. SEDITION. [Cases: Treason ~ 1.] - treasonable, treasonous, adj. "The judgment of high treason was, until very lately, an exception to the merciful tenor of our judgments. The least offensive form which is given in the books is, that the offender 'be carried back to the place from whence

he came, and from thence to be drawn to the place of execution, and be there hanged by the neck, and cut down alive, and that his entrails be taken out and burned before his face, and his head cut off, and his body divided into four quarters, and his head and quarters disposed of at the king's pleasure.' Some of the precedents add other Circumstances, of still more grossness and aggravation. But this horrible denunciation was very seldom executed in its more terrible niceties." I Joseph Chitty, A Practical Treatise on the Criminal Law 702 (2d ed. 1826). "[S]everal important characteristics marked off high treason from all other crimes. For one thing, it earned a peculiarly ghastly punishment. For another, it was 'under· gyable,' while every felony was 'dergyable' unless some statute had otherwise ordained. Thirdly, while the felon's land escheated to his lord, the traitor's land was forfeited to the king. This last distinction influenced the develop' ment of the law." 2 Frederick Pollock 8. Frederic William Maitland, History of English Law Before the Time of Edward 1500 (2d ed. 1899). 'Treason against the United States, shall consist only in levying war against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court." U.S. Const. art. III, § 3.

constructive treason. 1. Speech that manifests a desire or intent to make war against the state or materially support an enemy, even though the speech is unac­ companied by acts that further the desire or intent. _ There is no crime of constructive treason in U.S. law because treason requires an affirmative act, and intent alone cannot substitute for an act. Cf. SEDITION. [Cases: Treason ~ 1.] 2. Hist. Speech that is critical ofthe government. - This sense arose during the reign of Henry VIII of England. Critical speech remained a capital crime until the early 18th century. petty treason. Archaic. Murder of one's employer or husband. - Until 1828, this act was considered treason under English law. Also spelled petit treason. "The frequent reference to high treason is a carry·over from an ancient division of the offense that has long since disappeared. In the feudal stage of history the relation of lord to vassal was quite similar to the relation of king to subject. The relation of husband to wife came to be regarded in the same category, as also did the relation of master to servant, and that of prelate to clergyman. And just as it was high treason to kill the king, so a mali· cious homicide was petit treason if it involved a killing of (originally, lord by vassal, and later) husband by Wife, master by mistress or servant, or prelate by clergyman. When the special brutality provided by the common law for the punishment of petit treason disappeared, this crime became merged with murder and only one crime of treason remained." Rollin M. Perkins & Ronald N. Boyce, Criminal Law498-99 (3d ed. 1982).

treasonable misdemeanor. English law. An act that is likely to endanger or alarm the monarch, or disturb the public peace in the presence of the monarch. Cf. TREASON FELONY.

treason felony. English law. An act that shows an inten­ tion of committing treason, unaccompanied by any further act to carry out that intention. - This offense usu. results in life imprisonment rather than the death penalty. Cf. TREASONABLE MISDEMEANOR. Treas. Reg. abbr. TREASURY REGULATION.

treasurer

treasurer. An organization's chief financial officer. • The treasurer's duties typically include prudently depos­ iting (or, if authorized, investing) and safeguarding the organization's funds and otherwise managing its finances; monitoring compliance with any applicable law relating to such finances and filing any required report; disbursing money as authorized; and reporting to the organization on the state of the treasury. - Also termed finance officer;financialsecretary; quartermas­ ter. [Cases: Corporations ~30L] city treasurer. A local officer who is responsible for managing municipal funds. Treasurer, Lord High. See LORD HIGH TREASURER. Treasurer of the United States. The officer in the U.S. Department ofthe Treasury responsible for overseeing the operations of the Bureau of Engraving and Printing and the U.S. Mint. treasure trove. [Law French "treasure found"] (l6c) Valuables (usu. gold or silver) found hidden in the ground or other private place, the owner of which is unknown. - At common law in the United States, the finder of a treasure trove can usu. claim good title against all except the true owner. But until 1996, any treasure trove found in the United Kingdom belonged to the Crown. "Treasure hid in the earth. not upon the earth, nor in the sea, and coin though not hidden, being found is the king's; we call it treasure trove." Sir Henry Finch, Law, or a Dis· course Thereof 177 (1759). ''Treasure trove consists essentially of articles of gold and Silver, intentionally hidden for safety in the earth or in some secret place, the owner being unknown, although it is probable that the category might include articles made from the required metals buried in the ground for other purposes, for example in connection with an ancient sep· ulture. In the United States, the state has never claimed title to lost property by virtue of its character as treasure trove, and it has been stated that the law relating thereto is merged with that of lost goods generally, although there is authority for the proposition that while treasure trove in the United States belongs to the finder, found goods not of that character go to the owner of the locus in quo." Ray Andrews Brown, The Law of Personal Property § 13, at 27-28 (2d ed. 1955).

Treasuries. (1922) Debt obligations of the federal govern· ment backed by the full faith and credit of the govern­ ment. See TREASuRY BILL; TREASURY BOND; TREASURY CERTIFICATE; TREASURY NOTE. [Cases: United States treasury. 1. A place or building in which stores ofwealth are kept; esp., a place where public revenues are depos­ ited and kept and from which money is disbursed to defray government expenses. [Cases: United States 81.] 2. (cap.) DEPARTMENT. OF THE TREASURY. Treasury, First Lord. See FIRST LORD OF THE TREASURY. Treasury Bench. In the British House of Commons, the first row of seats on the right hand of the speaker. _ lhe Treasury Bench is occupied by the First Lord of the Treasury or principal minister of the Crown. Treasury bill. (18c) A short-term debt security issued by the federal government, with a maturity of 13,

1640

26, or 52 weeks. - These bills - auctioned weekly or quarterly - pay interest in the form of the difference between their discounted purchase price and their par value at maturity. Abbr. T-bill. [Cases: United States ~89.1

Treasury bond. (1858) A long-term debt security issued by the federal government, with a maturity of 10 to 30 years. - These bonds are considered risk· free, but they usu. pay relatively little interest. - Abbr. T-bond. [Cases: United States v91.] TIPS bond. A treasurv bond whose face value is adjusted to keep pace ~ith the inflation rate. _ 'lhe acronym TIPS stands for Treasury inflation-protected securitie$. Abbr. TIPS. treasury certificate. An obligation of the federal gov­ ernment maturing in one year and on which interest is paid on a coupon basis. [Cases: United States ~90.1 Treasury Department. See DEPARTMENT OF THE TREASGRY.

Treasury inflation-protected securities. See TIPS bond under TREASURY BOND. Treasury note. (ISc) An intermediate-term debt security issued by the federal government, with a maturity of two to ten years. - These notes are considered risk­ free, but they usu. pay relatively little interest. Abbr. T·note. [Cases: United States C:~90.1 Treasury Regulation. (1860) A regulation promulgated by the U.S. Treasury Department to explain or inter­ pret a section of the Internal Revenue Code .• Treasury Abbr. Regulations are binding on all taxpayers. Treas. Reg. [Cases: Internal Revenue 0::>3038-3042, 3045,3048.J treasury security. See treasury stock under STOCK. treasury share. See treasury stock under STOCK. treasury stock. See STOCK. treasury warrant. See WARRANT (2). treating-physician rule. The principle that a treating physician's diagnoses and findings about the degree of a social-security claimant's impairment are binding on an administrative-law judge in the absence of sub­ stantial contrary evidence. [Cases: Social Security and Public Welfare C-::;, 143.65.] treaty. 1. An agreement formally signed, ratified, or adhered to between two nations or sovereigns; an international agreement concluded between two or more states in written form and governed by interna­ tionallaw. Also termed accord; convention; covenant; declaration; pact. Cf. EXECUTIVE AGREEMENT. [Cases: Treaties "[TJhe legal terminology used by the United States to describe international agreements is markedly different from that employed elsewhere. Under the U.S. Constitution, the term 'treaty' has a particular meaning an agreement made by the PreSident with the advice and consent of the Senate." David J. Bederman, International Law Frameworks 158 (2001).

treaty

1641

commercial treaty. A bilateral or multilateral treaty concerning trade or other mercantile activities .• Such a treaty may be general in nature, as by supply­ ing the framework oflong-term commercial relations. Or it may be specific, as by detailing the conditions of particular branches of trade or other commercial transactions. Sometimes a treaty of this kind deals with an individual project, such as a guaranty agree­ ment. [Cases: Treaties C:=>8.] defensive treaty. A treaty in which each party agrees to come to the other's aid if one is attacked by another nation. See treaty ofalliance. "Defensive treaties, as generally understood, are made to secure the parties to them against aggression from other states. They may, also, aim at the maintenance of internal quiet, or of neutrality amid the conflicts of neighboring powers. To attempt to gain any of these objects is not nec· essarily contrary to the law of nations or to natural justice. Mutual aid, indeed, against the disturbers of internal quiet, may secure an absolute government against popular revolutions in favor of liberty, but if a confederation or alliance may secure to its members the enjoyment of free institutions, there is no reason, as far as international law is concerned, why institutions of an opposite kind may not support themselves in the same way." Theodore D. Woolsey, Introduction to the Study of International Law § 107, at 171 (5th ed. 1878).

dispositive treaty (dis-poZ-;Hiv). A treaty by which a country takes over territory by impressing a special character on it, creating something analogous to a servitude or easement in private law. guarantee treaty. An agreement between countries directly or indirectly establishing a unilateral or recip­ rocal guarantee. - Also spelled guaranty treaty. Also termed treaty ofguarantee; quasi-guarantee treaty; pseudo-guarantee treaty. "In many instances where the term 'guarantee' is used in international treaties, the contracting parties merely intend to underline their Willingness to comply with the obligation they have entered into. Obligations of this kind do not fall within the concept of guarantee in the proper sense of the term. In this particular respect, the expression 'pseudo-guarantees' or 'quasi·guarantee treaties' is used." George Ress, "Guarantee Treaties," in 2 Encyclopedia of Public International Law 634 (1995).

mixed treaty. A treaty with characteristics of different types of treaties, esp. contrasting types (e.g., perma­ nent and transitory, or personal and real). nonaggression treaty. See NONAGGRESSION PACT. nonproliferation treaty. A treaty forbidding the transfer of nuclear weapons from a country with a nuclear arsenal to one that does not have nuclear­ weapons capability. - The first such treaty was con­ cluded in 1968, and now more than 100 nations have agreed to its terms. Also termed nuclear-nonpro­ liferation treaty. offensive treaty. A treaty in which the parties agree to declare war jointly on another nation and join forces to wage the war. See treaty ofalliance. peace treaty. A treaty Signed by heads of state to end a war. - Also termed treaty ofpeace. Cf. TRUCE. [Cases: War and National EmergencyC:=>33.]

"A peace differs not from a truce essentially in the length of its contemplated duration, for there may be very long armistices and a state of peace continuing only a definite number of years. The ancients often concluded treaties of peace which were to expire after a certain time ...." Theodore D. Woolsey, Introduction to the Study of Interna­ tional Law § 158, at 268 (5th ed. 1878).

permanent treaty. A treaty that contemplates ongoing performance (as with a treaty of neutrality). personal treaty. Hist. A treaty relating exclusively to the contracting sovereign as a person. - Examples of personal treaties are family alliances and treaties guaranteeing the throne to a particular sovereign and his or her family. With the advent of constitutional government in Europe, personal treaties have lost their importance. pseudo-guarantee treaty. See guarantee treaty. quaSi-guarantee treaty. See guarantee treaty. real treaty. A treaty relating solely to the subject matter of the compact, independently of the persons of the contracting sovereigns. _ Real treaties continue to bind the state even when the heads of government change. transitory treaty. A treaty carried into effect once and for all, so that it is complete when the act has been performed (as with a treaty of cession). treaty ofalliance. A treaty establishing mutual and reciprocal support obligations .• A treaty of alliance may be for support in defense, aggression, or both. See defenSive treaty; offensive treaty. "A treaty of alliance can bind the parties to no injustice, nor justify either of them in being accessory to an act of bad faith on the part of another. Hence a defensive, still more an offenSive alliance, can only contemplate, if lawful, the warding off of intended injustice." Theodore D. Woolsey, Introduction to the Study of!nternational Law § 107, at 172 (5th ed. 1878).

treaty ofguarantee. See guarantee treaty. treaty ofneutrality. A treaty in which the parties agree not to engage in any aggressive action against one another, whether indiVidually or jOintly with others, and not to interfere with the other party's affairs. • lhere is no commitment to aid another party in the event of war - only to refrain from becoming involved. "Treaties of neutrality are reciprocal engagements to have no part in the conflicts between other powers to remain at peace in an apprehended or an actual war. They are suggested by, and prevent the evils of that interference of nations in each other's affairs, for the preservation of the balance of power or the safety of the parties interfer· ing, which is so common in modern history." Theodore D. Woolsey, Introduction to the Study of International Law § 107, at 172 (5th ed. 1878).

treaty ofpeace. See peace treaty. 2. A contract or agreement between insurers provid­ ing for treaty reinsurance. See treaty reinsurance under REINSURANCE. [Cases: Insurance C:=>3593.] 3. A nego­ tiated contract or agreement between private persons.

Treaty Clause

private treaty. An agreement to convey property nego­ tiated by the buyer and seller or their agents. _ This term is esp. common in the u.K. Treaty Clause. The constitutional provision giving the President the power to make treaties, with the advice and consent ofthe Senate. U.S. Canst. art. II, § 2. [Cases: Treaties treaty-created law. See CONVENTIONAL LAW. treaty-made law. See CONVENTIONAL LAW. treaty of reinsurance. See REINSURANCE TREATY. treaty power. (1835) The President's constitutional authority to make treaties, with the advice and consent of the Senate. See TREATY CLAUSE. [Cases: Treaties 2.] treaty reinsurance. See REINSURANCE. treble damages. See DAMAGES. trebucket (tree-b:::lk-it). See CASTIGATORY. trend. A price pattern in the stock market generally or in a particular stock. major trend. A long-term trend of the stock market; a general increase or decrease of stock prices over an extended period. - Also termed fundamental trend. market trend. The direction of stock-market prices over a several-month period. trespass (tres-p:::ls or tres-pas), n. (13c) 1. An unlawful act committed against the person or property of another; esp., wrongful entry on another's real property. Cf. unlawful entry under ENTRY (1). [Cases: Trespass (;=: 1-15.] 2. At common law, a legal action for injuries resulting from an unlawful act ofthis kind. 3. Archaic. MISDEMEANOR. - trespass, vb. trespassory (tres­ p:::l-sor-ee), adj. "The familiar legend on notice-boards, 'Trespassers will be prosecuted,' implies that it is a crime, but this may usually be dismissed as 'a wooden lie.' Yet in time past the idea was correct, for trespass of any sort was punishable by fine and imprisonment as well as redressible by an action for damages, and actually it was not until 1694 that the punitive element disappeared although it had faded into obsolescence long before that date. But nowadays trespass is never criminal except under special statutes which make it punishable ..." P.H. Winfield, A Textbook of the Lawof Tort § 90, at 307 (5th ed. 1950). "The term trespass has been used by lawyers and laymen in three senses of varying degrees of generality. (1) In its widest and original signification it includes any wrongful act any infringement or transgression of the rule of right. This use is common in the Authorised Version of the Bible, and was presumably familiar when that version was first published. But it never obtained recognition in the techni­ cal language of the law, and is now archaic even in popular speech. (2) In a second and narrower signification - its true legal sense - the term means any legal wrong for which the appropriate remedy was a writ of trespass - viz. any direct and forcible injury to person, land, or chattels. (3) The third and narrowest meaning of the term is that in which, in accordance with popular speech, it is limited to one particular kind of trespass in the second sense viz. the tort of trespass to land (trespass quare clausum fregit)." R.F.V. Heuston, Salmond on the Law of Torts 4 (] 7th ed. 1977).

1642 "Before the word 'misdemeanor' became well established the old writers tended to use the word 'trespass' to indicate an offense below the grade of felony. And it was used at times by Blackstone for this purpose, as in the phrase 'treason, felony, or trespass.'" Rollin M. Perkins & Ronald N. Boyce, Criminal Law 405 (3d ed. 1982).

cattle-trespass. Hist. Trespass by one's cattle or other animals on another's land, as a result of which the other might either distrain them damage feasant or sue for trespass in the local courts. - At first (from the early 13th century) this type of trespass applied only to intentional trespass by the keeper ofthe cattle, but in 1353 it was extended to beasts that had merely escaped. This type of trespass gave rise to strict liabil­ ity. [Cases: Animals (;=:89.] "It has long been settled that liability for cattle-trespass is independent of negligence, and it is that which constitutes its strictness. And, in spite of some confusion in time past, it is quite distinct from the SCienter type of liability. In Lee v. Riley [(1865), 18 CB. (N.5.) 722] the defendant's mare strayed through a gap in his fence, which it was his duty to repair, to the plaintiff's land and there quarrelled with and kicked the plaintiff's horse. The defendant was held liable for cattle-trespass. A great deal of argument was expended at the trial on whether the defendant had notice of the ferocious disposition of his mare, but Erie, CJ., pointed out that, however relevant that might have been in a scienter action, it was beSide the mark in one for cattle-trespass." P.H. Winfield, A Textbook of the Law of Ton § 148, at 518 (5th ed. 1950).

constructive trespass. See trespass to chattels. continuing trespass. A trespass in the nature of a per­ manent invasion on another's rights, such as a sign that overhangs another's property. [Cases: Trespass criminal trespass. 1. A trespass on property that is clearly marked against trespass by signs or fences. [Cases: Trespass (;:::"81.] 2. A trespass in which the trespasser remains on the property after being ordered off by a person authorized to do so. innocent trespass. A trespass committed either unin­ tentionally or in good faith. [Cases: Trespass joint trespass. A trespass that two or more persons have united in committing, or that some have actually committed while others commanded, encouraged, or directed it. [Cases: Trespass (;::c:;31.] permanent trespass. A trespass consisting of a series of acts, done on consecutive days, that are of the same nature and that are renewed or continued from day to day, so that the acts in the aggregate form one indi­ visible harm. trespass ab initio (ab i-nish-ee-oh). An entry on land that, though begun innocently or with a privilege, is deemed a trespass from the beginning because of conduct that abuses the privilege. [Cases: Trespass trespass by relation. A trespass committed when the plaintiff had a right to immediate possession of land but had not yet exercised that right. _ When the plain­ tiff takes possession, a legal fiction treats the plainti ff as having had posseSSion ever since the accrual of the

trespasser

1643

right of entry. This is known as trespass by relation because the plaintiff's possession relates back to the time when the plaintiff first acquired a right to pos­ session. trespass de bonis asportatis (dee hoh-nis as-par-tay­ tis). [Latin "trespass for carrying goods away"] 1. A wrongful taking of chattels.• This type of trespassory taking was also an element of common-law larceny. 2. At common law, an action to recover damages for the wrongful taking of chattels. Abbr. trespass d.b.a. - Often shortened to trespass de bonis. - Also termed trespass to personal property. [Cases: Trespass C::06.] trespass on the case. (ISc) At common law, an action to recover damages that are not the immediate result of a wrongful act but rather a later consequence. ­ This action was the precursor to a variety of modern­ day tort claims, including negligence, nuisance, and business torts. - Often shortened to case. - Also termed action on the case; breve de transgressione 1, 16, 17.] super casum. [Cases: Trespass "The most important of the writs framed under the author­ ity of the statute of Westminster 2 is that of 'trespass on the case: to meet cases analogous to trespass in delict, but lacking the element of direct or immediate force or violence. This writ gave a form of action in which the court was enabled to render judgment of damages in cases of fraud, deceit, negligence, want of skill, defamation oral or written, and all other injurious acts or omissions resulting in harm to person or property, but wanting the vi et armis, the element of direct force and violence, to constitute trespass." Edwin E. Bryant, The Law of Pleading Under the Codes of Civil Procedure 7 (2d ed. 1899). "Common law recognizes a distinction between the actions of trespass vi et armis (or simply trespass) and trespass on the case. This distinction has been expressed by stating that a tort committed by the direct application of force is remediable by an action for trespass, while a tort accom­ plished indirectly is a matter for trespass on the case. Other authority makes the distinction on the basis of the defendant's intent, stating that trespass involves a willful and deliberate act while trespass on the case contemplates an act or omission resulting from negligence." 1 Am. Jur. 2d Actions § 23, at 738 (1994).

trespass quare clausum fregit (kwair-ee-klaw-zam­ free-jit). [Latin "why he broke the close"] (17c) 1. A person's unlawful entry on another's land that is visibly enclosed .• This tort consists of doing any of the follOWing without lawful justification: (1) entering upon land in the possession ofanother, (2) remaining on the land, or (3) placing or projecting any object upon it. 2. At common law, an action to recover damages resulting from another's unlawful entry on one's land that is Visibly enclosed. - Abbr. trespass q.c.f. - Also termed trespass to real property; trespass to land; quare clausum querentis fregit. See trespass vi et armis. [Cases: Trespass ~ 10, 16, 17.] "Every unwarrantable entry on another's soil the law entitles a trespass by breaking his close; the words of the writ of trespass commanding the defendant to shew cause, quare clausum querentis fregit. For every man's land is in the eye of the law enclosed and set apart from his neigh­ bour's: and that either by a visible and material fence, as one field is divided from another by a hedge; or, by an ideal invisible boundary, existing only in the contemplation of

law, as when one man's land adjoins to another's in the same field. And every such entry or breach of a man's close carries necessarily along with it some damage or other; for, if no other special loss can be assigned, yet still the words of the writ itself specify one general damage, viz. the treading down and bruising his herbage." 3 William Blackstone, Commentaries on the Laws of England 209-1 0 (1768).

trespass to chattels. (1843) The act of committing, without lawful justification, any act ofdirect physical interference with a chattel possessed by another.• The act must amount to a direct forcible injury. ­ Also termed trespass to goods; constructive trespass. [Cases: Trespass ~5.J "Trespass to goods is a wrongful interference with the pos­ seSSion of them. It may take innumerable forms, such as scratching the panel of a coach, removing a tire from a car, injuring or destroying goods, or in the case of animals, beating or killing them, or infecting them with disease. All that is necessary is that the harm done should be direct ...." P.H. Winfield, A Textbook of the Law of Tort § 99, at 345 (5th ed. 1950).

trespass to goods. See trespass to chattels.

trespass to land. See trespass quare clausum fregit (2).

trespass to personal property. See trespass de bonis

asportatiS. trespass to real property. See trespass quare clausum fregit (2). trespass to try title. (1826) 1. In some states, an action for the recovery of property unlawfully withheld from an owner who has the immediate right to possession. 2. A procedure under which a claim to title may be adjudicated. trespass vi et armis (VI et ahr-mis). [Latin "with force and arms"] (l7c) 1. At common law, an action for damages resulting from an intentional injury to person or property, esp. ifby violent means; trespass to the plaintiff's person, as in illegal assault, battery, wounding, or imprisonment, when not under color oflegal process, or when the battery, wounding, or imprisonment was in the first instance lawful, but unnecessary violence was used or the imprisonment continued after the process had ceased to be lawful. • lhis action also lay for injury to relative rights, such as menacing tenants or servants, beating and wounding a spouse, criminal conversation with or sedUcing a wife, or debauching a daughter or servant. 2. See trespass quare clausum fregit. - In this sense, the "force" is implied by the "breaking" of the dose (that is, an enclosed area), even ifno real force is used. [Cases: Trespass ~ 17.] trespass d.h.a. See trespass de bonis asportatis under TRESPASS.

trespasser. (14c) One who commits a trespass; one who intentionally and without consent or privilege enters another's property. _ In tort law, a landholder owes no duty to unforeseeable trespassers. Cf. INVITEE; LICENSEE (2). [Cases: Trespass (;:::->9.J "The word 'trespasser' has an ugly sound, but it covers the wicked and the innocent. The burglar and the arrogant squatter are trespassers, but so are all sorts of

trespass for mesne profits comparatively innocent and respectable persons such as a walker in the countryside who unhindered strolls across an open field. Perhaps much of the trouble in this area has arisen from 'the simplistic stereotype' of the definition. The courts are therefore beginning to recognise that the duty of the occupier may vary according to the nature of the trespasser." R.FV. Heuston, Salmond on the Law of Torts 278 (17th ed. 1977).

innocent trespasser. (1888) One who enters another's land unlawfully, but either inadvertently or believing in a right to do so. [Cases: Trespass C=> 2, 23.J trespass for mesne profits. Hist. An action - supple­ menting an action for ejectment brought against a tenant in possession to recover the profits wrongfully received during the tenant's occupation. [Cases: Eject­ ment (;::> 128.] trespass q.c.f. See trespass quare clausum fregit under TRESPASS.

tret (tret), n. An allowance or abatement of a certain weight or quantity that a seller makes to a buyer because of water or dust that may be mixed with a commodity. Cf. TARE. triable, adj. (15c) Subject or liable to judicial examina­ tion and trial . triable either way. English law. (Of an offense) prose­ cutable either in the Crown Court or in a magistrates' court. "The criminal courts in England and Wales are the magis· trates' courts and the Crown Court. Those offences con· sidered least serious are summary offences, triable only in the magistrates' courts. Those offences considered most serious are triable only on indictment, in the Crown Court. A large number of offences, such as theft and most burglaries, are 'triable either way,' in a magistrates' court or the Crown Court. For these offences the defendant can elect to be tried at the Crown Court, where there is ajudge and jury. If the defendant does not wish a Crown Court trial, the magistrates may decide (having heard representa· tions from the prosecutor) that the case is so serious that it should be committed to the Crown Court for trial." Andrew Ashworth, Principles of Criminal Law 16 (1991).

trial. (15c) A formal judicial examination of evidence and determination oflegal claims in an adversary pro­ ceeding. [Cases: Federal Civil Procedure (;::>1951; Trial (;::18.J abortive trial. See MISTRIAL. bench trial. (1954) A trial before a judge without a jury.• The judge decides questions of fact as well as questions oflaw. - Also termed trial to the bench; nonjury trial; court trial; trial before the court (abbr. TBC); judge trial. [Cases: Criminal Law 260.13; Federal Civil Procedure (;::>2251; Trial 367-387.] bifurcated trial. (1945) A trial that is divided into two . such as for guilt and punishment or for liabil­ ity and damages. - Also termed two-stage trial. Cf. SEVERANCE (2). [Cases: Federal Civil Procedure 1954; Sentencing and Punishment C-~334; Trial 3.] closed trial. A trial that is not open to the public, usu. because of some overriding concern such as a need

1644

to protect a child's anonymity or for security. [Cases: Criminal Law (;::>635; Federal Civil Procedure (;::> 1951; Trial (;::>20.] court trial. See bench trial. fair trial. See FAIR TRIAL. joint trial. (18c) A trial involving two or more parties; esp., a criminal trial of two or more persons for the same or similar offenses. [Cases: Criminal Law 622.] judge trial. See bench trial. jury trial. (l8c) A trial in which the factual issues are determined by a jury, not by the judge. - Also termed trial by jury. mock trial. See MOCK TRIAL. new trial. (16c) A postjudgment retrial or reexami­ nation of some or all of the issues determined in an earlier judgment. • The trial court may order a new trial by motion of a party or on the court's own initia­ tive. Also, when an appellate court reverses the trial court's judgment, it may remand the case to the trial court for a new trial on some or all of the issues on which the reversal is based. See Fed. R. Civ. P. 59; Fed. R. Crim. P. 33. See MOTION FOR NEW TRIAL; REMAND. [Cases: Criminal Law (;::>905-96Si Federal Civil Pro­ cedure (;:J2311; New Trial (;::>0.5.} nonbinding minUrial. See summary jury trial. nonbinding summary jury trial. See summary jury trial. nonjury trial. See bench trial. perfect trial. A trial free from all error. political trial. (I8c) A trial (esp. a criminal prosecution) in which either the prosecution or the defendant (or both) uses the proceedings as a platform to espouse a particular political belief; a trial of a person for a political crime. See SHOW TRIAL. public trial. A trial that anyone may attend or observe. [Cases: Criminal Law (;:::,635; Federal Civil Proce­ 1951; Trial dure separate trial. (I8c) 1. Criminal procedure. The indi­ vidual trial of each of several persons jointly accused of a crime. Fed. R. Crim. P. 14. [Cases: Criminal Law (;::>622) 2. Civil procedure. Within a single action, a distinct trial of a separate claim or issue or of a group of claims or issues ordered by the trial judge, usu. to conserve resources or avoid prejudice. Fed. R. Civ. P. 42(b). Cf. SEVERANCE (2). [Cases; Federal Civil Procedure (;::> 1953-1965; Trial (;::>3.] short-cause trial. See short cause under CAUSE (3). show trial. See SHOW TRIAL. speedy trial. See SPEEDY TRIAL.

state trial. A trial for a political offense.

summary jury trial. (1984) A settlement technique in

which the parties argue before a mock jury, which then reaches a nonbinding verdict that will assist the parties in evaluating their positions. - Also termed

1645

tribal-exhaustion doctrine

nonbinding summary jury trial; nonbinding minitrial. Cf. MOCK TRIAL. [Cases: Federal Civil Procedure 2252.] trial at bar. Hist. A trial before all the judges of the court in which the proceedings take place. Also termed trial at the bar. trial at nisi prius (nI-SI prJ-d8). Hist. A trial before the justices of assize and nisi prius in the county where the facts are alleged to have occurred, and from which county the jurors have been summoned. trial before the court. See bench trial. trial by battle. See TRIAL BY COMBAT. trial by certificate. His!. A trial in which the issue is decided on evidence in the form of witnesses' certifi­ cates of what they individually know. trial by combat. See TRIAL BY COMBAT. trial by duel. See TRIAL BY COMBAT. trial by inspection. Hist. A trial in which the judge decided the dispute by individual observation and investigation, without the benefit of a jury. trial by jury. See jury trial. trial by ordeal. See ORDEAL. trial by record. Hist. A trial in which, a record having been pleaded by one party and denied by the other, the record is inspected in order to decide the dispute, no other evidence being admissible. See NUL TIEL RECORD.

trial by the country. See trial per pais. trial by the record. A trial in which one party insists that a record exists to support its claim and the opposing party denies the existence of such a record.• If the record can be produced, the court will consider it in reaching a verdict otherwise, it will rule for the opponent. trial de novo (dee or di noh-voh). (I8c) A new trial on the entire case that is, on both questions of fact and issues oflaw conducted as ifthere had been no trial in the first instance. [Cases: Appeal and Error (~~'892; Criminal Law~')260; Federal Courts C:=>776.] trial in absentia. A trial held without the accused being present.• In the United States, a trial may be held in absentia only ifthe accused has either voluntarily left after the trial has started else has so disrupted the pro­ ceedings that the judge orders the accused's removal as a last resort. [Cases: Criminal Law C:=>636.] trial on the merits. (I8c) A trial on the substantive issues of a case, as opposed to a motion hearing or interlocutory matter. trial per pais (pdr payor pays). [Law French «trial by the country"] (17c) Trial by jury. - Also termed trial by the country. Cf. CONCLUSION TO THE COUNTRY; GOING TO THE COUNTRY; PATRIA

(3).

trial to the bench. See bench trial. trifurcated trial. (1959) A trial that is divided into three stages, such as for liability, general damages,

and special damages. [Cases: Federal Civil Procedure C:=> 1961; Trial C:=>3(5.1).) two-stage trial. See bifurcated trial. trial brief. See BRIEF. trial by combat. Hist. A trial that is decided by personal battle between the disputants, common in Europe and England during the Middle Ages; specif., a trial in which the person accused fought with the accuser, the idea being that God would give victory to the person in the right .• This method was introduced into England by the Normans after 1066, but it was a widely detested innovation and was little used. It became obsolete several centuries before being formally abolished in 1818, having been replaced in practice by the grand assize and indictment. Also termed trial by battle; trial by wager of battle; trial by duel; judicial combat; duel; duellum; wager ofbattle; ornest; vadiatio duelli; wehading. See JUDICIUM DEL trial by corsnaed. See ordeal of the morsel under ORDEAL.

trial by duel. See TRIAl. BY COMBAT. trial by oath. See COM PURGATION. trial by ordeal. See ORDEAL. trial by wager of battle. See TRIAL BY COMBAT. trial calendar. See DOCKET (2). trial counsel. See COUNSEL. trial court. See COURT. trial de novo. See TRIAL. trial examiner. See ADMINISTRATIVE-LAW JUDGE. trial franchise. See FRANCHISE (4). trial judge. See JUDGE. trial jury. See petit jury under JURY. trial of right ofproperty. 1. INTERVENTION (1). 2. INTER­ VENTION (2).

trial per pais. See TRIAL.

trial-setting preference. See speCial setting under

SETTING.

trial-type hearing. See ADMINISTRATIVE PROCEEDING. triangular merger. See MERGER. Tribal Court. Under the Indian Child Welfare Act, a court with child-custody jurisdiction that is (1) a Court ofIndian Offenses, (2) a court established and operated under an Indian tribe's code or custom, or (3) any other tribal administrative body that is vested with authority over child-custody proceedings .• The Tribal Court is composed of tribal members, is usu. situated on the reservation, and varies in its characteristics from tribe to tribe. It is not part of any state's judicial system, instead operating more or less as a judicial system of a foreign nation. See INDIAN CHILD WELFARE ACT. [Cases: Indians C:=> 134(3).] tribal-exhaustion doctrine. 1he general principle that when an Indian tribal court, original or appellate, has personal and subject-matter jurisdiction, the parties

tribal land

must pursue all remedies available under tribal law before turning to nontribal courts. - A federal court may review a challenge to jurisdiction only after the tribal court has established it has jurisdiction and deter­ mined the case on the merits. See National Farmer's Union Ins. Co. v. Crow Tribe, 471 U.S. 845,856-57, 105 S.Ct. 2447, 2454 (1985). tribal land. A part of an Indian reservation that is not allotted to or occupied by individual Indians but is held as the tribe's common land. Cf. INDIAN I~AND. [Cases: Indians tribunal (trI-byoo-n~l). (15c) 1. A court or other adjudi­ catory body. 2. The seat, bench, or place where a judge sits. tributary (trib-ya-ter-ee), n. (14c) A stream flowing directly or indirectly into a river. tribute (trib-yoot), n. (14c) 1. An acknowledgment of gratitude or respect. 2. A contribution that a sover­ eign raises from its subjects to defray the expenses of state. 3. Money paid by an inferior sovereign or state to a superior one to secure the latter's friendship and protection. tributum (tri-byoo-t~m), n. [Latin] Roman law. Origi­ nally, a war tax; later, a regular tax on land or persons in the Roman provinces. tri-chad. See CHAD. trier offad. See FACT- FINDER. trifurcated trial. See TRIAL. trigamy (trig-;)-mee), n. (17c) The act of marrying a person while legally married to someone else and biga­ mously married to yet another. [Cases: Bigamy C=> 1.J "Trigamy, literally three marriages, is often used for a special situation. 'Trigamy,' in the sense of the special problem of the third wife, stems from the premise that invalidity of the alleged prior marriage is a good defense to a charge of bigamy. Thus in a bigamy prosecution a so­ called common-law marriage can be relied upon to estab­ lish either the first or second marriage, if it is recognized in the jurisdiction as giving rise to the marital status, but cannot be relied upon where it is not so recognized. A logical result is that a charge of bigamy may be defeated by showing that the alleged prior marriage, relied upon to support the charge, was itself void because of an even earlier marriage existing at the time-as was held about 1648 in Lady Madison's Case, For example, 0 marries A, and afterward while A is alive marries B, and still later when A is dead but B alive, marries C. The marriage to C is not bigamy because the marriage to B was bigamous and void." Rollin M. Perkins & Ronald N. Boyce, Criminal Law458 (3d ed. 1982).

triggering condition. See CONDITION (2). Trinity House.lvfaritime law. A British corporation char­ tered in 1514 to train and license pilots and officially regulate pilotage. - Trinity House has also erected and maintained aids to navigation, such as lighthouses and buoys, on the coasts of Great Britain. Trinity sittings. English law. A term of court begin­ ning on May 22 of each year and ending on June 12. _ This was known until 1875 as Trinity term. Cf. EASTER SITTINGS; HILARY SITTINGS; MICHAELMAS SITTINGS.

1646

tripartite (tn-pahr-tIt), adj. (15c) InvolVing, composed of, or divided into three parts or elements . tripartite lease. See finance lease under LEASE. tripartite test. Patents. A judicial test for determining patent infringement by looking at whether a challenged device or process, though outside the literal scope of the patent claims, performs the function in substantially the same way. See SGBSTANTIAL EQUIVALENT. triple damages. See treble damages under DAMAGES. triple net lease. See net-net-net lease under LEASE. triple ordeal. See ORDEAL. triple trigger. Insurance. (1981) A theory ofcoverage pro­ viding that all insurers on a risk must cover a loss from the day a claimant is first exposed to an injury-produc­ ing product (such as asbestos) to the date of diagnosis or death, whichever occurs first. _ This term was first used in Keene Corp. v. Insurance Co. ofN. Am., 667 F.2d 1034 (D.C. Cir. 1981), cert denied, 445 U.S. 1007, 102 S.Ct. 1644 (1982). - Also termed continuous trigger. Cf. ACTUAL-INJURY TRIGGER; EXPOSURE THEORY; MANI­

[Cases: InsuranceC=>2265.] triplicatio (trip-Ii-kay-shee-oh), n. [Latin] Roman law. A defendant's response to a plaintiffs replicatio. PI. trip­ licationes (trip-li-kay-shee-oh-neez). See REPLlCATIO. Cf. QUADRUPLICATIO. TRIPs. abbr. Intellectual property. The Agreement on Trade-Related Aspects of Intellectual Property Rights, a treaty that harmonized and strengthened the intel­ lectual-property laws of its signatories by linking the obligation to protect the intellectual-property rights of other members' citizens with a mechanism for settling international trade disputes. _ TRIPs was negotiated at the 1994 Uruguay Round of the General Agreement on Tariffs and Trade (GATT). More than 150 nations are parties to the agreement. In the field of patents, TRIPs standardized patentable subject matter to include med­ icines, required testing for nonobviousness and utility, and protected patentees from infringing imports. In response to the agreement Congress (1) changed patent terms to 20 years from the date of application, rather than 17 years from the date of issue; (2) allowed foreign filers to prove priority by inventive efforts that preceded filing; (3) widened the definition of infringement to cover offering for sale and importing; and (4) permit­ ted provisional applications, with brief descriptions and no claims, to establish priority. 33 I.L.M. 1197. In the field of copyrights, TRIPs incorporates most of the provisions of the Berne Convention for the Protection of Literary or Artistic Works, and sets the length of copyright protection as the life of the author plus 50 years. In the field oftrademarks, TRIPs sets the initial term of a trademark registration as not less than seven years, and makes it renewable indefinitely. Nations subject to TRIPs may make registrability dependent on use but may not require use as a condition for filing an application. Also written TRIPS. - Also termed TRIPs Agreement. FESTATION THEORY.

1647

trust

"Articles 1~8 of TRIPs include the basic principles of national treatment and most-favoured-nation treatment. That is, each Member must give to the nationals of other Members treatment no less favourable than that given to its own nationals, and must give to the nationals of all Members the same privileges as are given to the nation­ als of any Member. Thus, subject to certain exemptions, bilateral agreements between Members should no longer be permitted," Philip W, Grubb, Patents for Chemicals, Phar­ maceuticals and Biotechnology 31 (3d ed. 1999),

tristis successio (tris-tis sdk-ses[h]-ee-oh). See hereditas luctuosa under HEREDITAS. triverbial days (tn-var-bee-dl). See dies fasti under DIES.

trivial, adj. (I6c) Trifling; inconsiderable; of small worth or importance. TRO (tee-ahr-oh). abbr. TEMPORARY RESTRAINING ORDER.

troubled asset. See ASSET. trover (troh-vdr). (16c) A common-law action for the recovery of damages for the conversion of personal property, the damages generally being measured by the property's value. - Also termed trover and conversion. Cf. DETINUE; REPLEVIN. [Cases: Trover and Conversion 43.] "Trover may be maintained for all kinds of personal property, including legal documents, but not where articles are severed from land by an adverse possessor, at least until recovery of possession of the land. It lies for the mis­ appropriation of specific money, but not for breach of an obligation to pay where there is no duty to return specific money." Benjamin J Shipman, Handbook of Common-Law Pleading § 43, at 99 (Henry Winthrop Ballantine ed., 3d ed. 1923).

truancy (troo-dn-see), n. (iSc) The act or state of shirking responsibility; esp., willful and unjustified failure to attend school by one who is required to attend. [Cases: Schools C=> 161.] - truant, adj. & n. truancy officer. An official responsible for enforcing laws mandating school attendance for minors of specified ages (usu. 16 and under). - Also termed truant officer; attendance officer. [Cases: Schools C=> 161.] truant, n. A person who without permission is absent from work or school or who shirks a duty. [Cases: Schools ~J 161.] truce. Int'llaw. A suspension or temporary cessation of hostilities by agreement between belligerent powers. ­ Also termed armistice; ceasefire; suspension of arms. Cf. peace treaty under TREATY (1). [Cases: War and National EmergencyC=>33.1- trucial, adj. general truce. A truce suspending hostilities in all places. special truce. A truce referring only to operations before a specific fortress or in a district, or between certain detachments ofarmies. Also termed partial truce. truck. Hist. Scots law, The payment ofwages in scrip or goods.• Truck systems, once common where workers had to live in isolated areas and depended on company

stores for food and clothing, were abolished in the 19th century. "Truck was payment not in money but in goods or tickets which could be exchanged for goods, .. , The principle that contractors could buy in bulk and retail to the workmen, deducting the cost from their wages, was sound but was open to abuse; in fact truck became a means of robbery. Railway contractors frequently made more profit from truck than from the contract, .. , Truck shops, frequently called tommy shops or tally shops, might be run by the contractor or let by him to an associate or a shopkeeper for a rent or on the basis that part of the shop profits would go back to the contractor. The goods were frequently inferior and sold at excessive prices. David M, Walker, 6 A Legal History of Scotland 820 (2001),

true admission. See judicial admission under ADMIs­ SION (1).

true and correct. Authentic; accurate; unaltered <we have forwarded a true and correct copy of the expert's report>. Also termed true and exact. true bill, n. (lSc) A grand jury's notation that a criminal charge should go before a petty jury for trial . - Also termed billa vera, Cf. NO BILL. [Cases: Grand JuryC=>42.] true-bill, vb. To make or deliver a true bill on , true copy. See COPY. true defense. See DEFENSE (1). true legal impossibility. See legal impossibility (1) under IMPOSSIBILITY.

true mark. See technical trademark under

TRADE­

MARK.

true residue. See CLEAR RESIDUE. true trademark. See technical trademark under TRADE­ MARK.

true value. See fair market value under VALUE (2). true-value rule. The rule requiring that one who sub­ scribes for and receives corporate stock must pay par value for it, in either money or its equivalent, so that a corporation's real assets square with its books .• If true value is less than par value, the stock is deemed unpaid for to the full extent of the difference, and the affected shareholder is liable to creditors for the differ­ ence, notwithstanding the directors' good faith. [Cases: Corporations C=>232.] true verdict. See VERDICT. trust, n. (ISc) 1. The right, enforceable solely in equity, to the beneficial enjoyment of property to which another person holds the legal title; a property interest held by one person (the trustee) at the request of another (the settlor) for the benefit of a third party (the beneficiary).• For a trust to be valid, it must involve specific property, reflect the settlor's intent, and be created for a lawful purpose. The two primary types of trusts are private trusts and charitable trusts (see below). [Cases: Trusts C=> 1.] 2. A fiduciary relationship regarding property and charging the person with title to the property with

trust

equitable duties to deal with it for another's benefit; the confidence placed in a trustee, together with the trustee's obligations toward the property and the ben­ eficiary.• A trust arises as a result of a manifestation of an intention to create it. See fiduciary relationship under RELATIONSHIP. 3. Ihe property so held; CORPUS (1). "One must distinguish, ... [in] countries where English is spoken, between a wide and a narrow sense of the word 'trust.' In the wide sense a trust exists when property is to be held or administered by one person on behalf of another or for some purpose other than his own benefit.... In the narrow or strict sense a trust exists when the creator of the trust ... hands over or is bound to hand over the control of an asset which, or the proceeds of which, is to be administered by another (the trustee or administra­ tor) in his capacity as such for the benefit of some person (beneficiary) other than the trustee or for some impersonal object. A trust in this sense is a species of the genus 'trust' in the wide sense." Tony Honore, The South African Law of Trusts §§ 1-2, at 1-3 (3d ed, 1985). "Some courts and legal writers have defined a trust as a certain kind of right that the beneficiary has against the trustee, or a certain kind of interest that the beneficiary has against the trustee, or a certain kind of interest that the beneficiary has in the trust property, thus looking at it from the point of view of the beneficiary, While it is true that the beneficiary has the right or interest described, the trust is something more than the right or interest of the beneficiary. The trust is the whole juridical device: the legal relationship between the parties with respect to the property that is its subject matter, including not merely the duties that the trustee owes to the beneficiary and to the rest of the world, but also the rights, privileges, powers, and immunities that the beneficiary has against the trustee and against the rest of the world. It would seem proper, therefore, to define the trust either as a relationship having certain characteristics stated in the definition or perhaps as a juridical device or legal institution involving such a relationship," 1 Austin W, Scott & William F. Fratcher, The Law of Trusts § 2.4, at 42 (4th ed. 1987). a trust involves three "In the strict, traditional the trust property and elements: (1) a trustee, who is subject to deal with it for the benefit of one or more others; (2) one or more benefiCiaries, to whom and for whose benefit the trustee owes duties with respect to the trust property; and (3) trust property, which is held by the trustee for the beneficiaries. In a more comprehensive sense, the trust purpose is often included in discussions of the elements of the trusts .... Although all of these elements are present in a complete trust, either or both of elements (1) and (2) above may be temporarily absent without destroying the trust or preventing its creation," Restatement (Third) of Trusts § 2 cmt. f (2003).

A-B-Q trust. See bypass trust. A-B trust. See bypass trust. accumulation trust. A trust in which the trustee must accumulate income and gains from sales of trust assets for ultimate disposition with the principal when the trust terminates, • Many states restrict the time over which accumulations may be made or the amount that may be accumulated. [Cases: Trusts (;::::' 280.] active trust. A trust in which the trustee has some affirmative duty of management or administration besides the obligation to transfer the property to the beneficiary. Also termed express active trust;

1646

special trust; operative trust, Cf. passive trust. [Cases: Trusts C=::> 135,) Alaska trust. See asset-protection trust (1). alimony trust. A trust in which the payor spouse transfers to the trustee property from which the payee spouse, as beneficiary, will be supported after a divorce or separation. annuity trust. A trust from which the trustee must pay a sum certain annually to one or more beneficiaries for their respective lives or for a term of years, and must then either transfer the remainder to or for the use of a qualified charity or retain the remainder for such a use.• The sum certain must not be less than 5% of the initial fair market value of the property trans­ ferred to the trust by the donor. A qualified annuity trust must comply with the requirements of IRC (26 USCA) § 664. [Cases: Trusts C=::>281.j asset-protection trust. 1. A trust designed specifically to insulate assets from the settlor's creditors .• When the trust is created using the law of a state, it is also termed a domestic asset-protection trust, It may also be referred to by the name of the specific state, e.g., Alaska trust, Delaware trust, or Nevada trust. If it is created under foreign law, even though the assets are within the United States, it is also termed an offshore asset-protection trust. 2. See self-settled trust. bank-account trust. See Totten trust. blended trust. A trust in which the beneficiaries are a group, with no member of the group having a sepa­ rable individual interest. • Courts rarely recognize these trusts. blind trust. (1969) A trust in which the settlor places investments under the control of an independent trustee, usu. to avoid a conflict ofinterest. • The ben­ eficiary has no knowledge ofthe trust's holdings and no right to participate in the trust's management. bond trust. A trust whose principal consists of bonds that yield interest income. bypass trust. (1981) A trust into which just enough of a decedent's estate passes, so that the estate can take advantage of the unified credit against federal estate Also termed credit­ taxes. See 26 USCA § 2010. shelter trust;A-B trust; A-B-Q trust; marital life-estate trust. See unified estate-and-gift tax credit under TAX CREDIT.

charitable lead trust. An irrevocable trust made in favor of a charity and allowing the charity to receive income from the trust property for a specified period, after which the property reverts to the set­ tlor's estate, charitable-remainder annuity trust. A charitable­ remainder trust in which the beneficiaries receive for a specified period a fixed payment of 5% or more of the fair market value of the original principal, after which the remaining principal passes to charity. Abbr. CRAT. Also termed charitable-remainder­

1649

trust retirement fund. (Cases: Charities

trust

Trusts

charitable-remainder trust. A trust consisting ofassets that are designated for a charitable purpose and paid over to the trust after the expiration of a life estate or intermediate estate. - Abbr. CRT. Also termed split-interest trust. [Cases: Charities charitable-remainder-trust retirement fund. See char­ itable-remainder annuity trust. charitable trust. (1Sc) A trust created to benefit a specific charity, specific charities, or the general public rather than a private individual or entity. ­ Charitable trusts are often eligible for favorable tax treatment. Ifthe trust's terms do not specify a charity or a particular charitable purpose. a court may select a charity. See Uniform Trust Act § 405. - Also termed public trust; charitable use. See charitable deduction under DEDUCTION; CY PRES. Cf. private trust. [Cases: Charities Internal Revenue ('='4048; Taxation C='2337, 3328, 3488.] Claflin trust. See indestructible trust. Clifford trust. (1941) An irrevocable trust, set up for at least ten years and a day, whereby income from the trust property is paid to the beneficiary but the property itself reverts back to the settlor when the trust expires. - These trusts were often used by parents - with their children as beneficiaries - to shelter investment income, but the Tax Reform Act of 1986 eliminated the tax advantage by imposing the kiddie tax and by taxing the income of settlors with a reversionary interest that exceeds 5% of the trust's value. This term gets its name from Helvering v. Clifford, 309 U.S. 331, 60 S.Ct. 554 (1940). - Also termed short-term trust. [Cases: Internal Revenue 3362.] common-law trust. See business trust under TRUST (4). . c ommunity trust. See COMMUNITY TRUST. complete voluntary trllst. See executed trust. complex trust. L A trust having elaborate provisions. 2. See discretionary trust. constructive trust. (l8c) An equitable remedy that a court imposes against one who has obtained property by wrongdoing. - A constructive trust, imposed to prevent unjust enrichment, creates no fiduciary rela­ tionship. Despite its name, it is not a trust at all. Also termed implied trust; involuntary trust; trust de son tort; trust ex delicto; trust ex maleficio; remedial trust; trust in invitum. See trustee de son tort under TRUSTEE. Cf. resulting trust. [Cases: Trusts

91-111.]

"A constructive trust is the formula through which the conscience of equity finds expression. When property has been acquired in such circumstances that the holder of the legal title may not in good conscience retain the benefi­ cial interest, equity converts him into a trustee." Beattv v. Guggenheim Exploration Co., 122 N.E. 378, 380 (N.Y. 1919) (Cardozo, J.l. "It is sometimes said that when there are sufficient grounds for imposing a constructive trust, the court 'constructs a

trust' The expression is, of course, absurd. The word 'con· structive' is derived from the verb 'construe,' not from the verb 'construct.' ... The court construes the circumstances in the sense that it explains or interprets them; it does not construct them." 5 Austin W. Scott & William F. Fratcher, The Law of Trusts § 462.4 (4th ed. 1987).

contingent trust. An express trust depending for its operation on a future event. credit-shelter trust. See bypass trust. Crummey trust. A trust in which the trustee has the power to distribute or accumulate income and to give the beneficiary the right to withdraw an amount equal to the annual gift exclusion (or a smaller sum) within a reasonable time after the transfer. - This type of trust can have multiple beneficiaries and is often used when the beneficiaries are minors. Gifts to a Crummey trust qualify for the annual gift exclusion regardless of the age of the beneficiaries. The trust assets are not required to be distributed to the ben­ eficiaries at age 21. The validity of this type of trust was established in Crummey v. Commissioner, 397 F.2d 82 (9th Cir. 1968). - Also termed discretionary trust See CRl:MMEY POWER; annual exclusion under EXCLUSION. Cf. 2503(c) trust. custodial trust. A revocable trust for which a custodial trustee is named to manage the assets for an incapaci­ tated or disabled beneficiary. - The beneficiary does not have to be disabled or incapacitated at the time the trust is created. An adult beneficiary who is not disabled or incapacitated may terminate the trust at any time before his or her disability, incapacity, or death. declared trust. See express trust. defective trust. A trust that is treated, for income-tax purposes, as if it were the same entity as the grantor, but for estate-tax purposes is treated as an entity separate from the grantor. - Typically a trust is an independent entity that is taxed separately from the settlor. Because trust income is taxed at higher rates than individual income, the settlor may intentionally create a defect in the trust terms so that the trust's income will be taxable to the grantor. This is achieved by violating the grantor-trust rules ofIRC §§ 671-677 in a way that does not affect the completeness of the gift under IRC §§ 2035-2042. A violation renders the trust "defective" because the settlor must recognize the income even if the settlor does not actually receive it. The attribution oftax liability and payment oftaxes on trust income do not give the grantor an ownership in the trust, which remains separate from the set­ tlor's estate and is not subject to estate taxes. [Cases: Internal Revenue 140(1).] life-insurance trust. A trust consisting of one or more life-insurance policies payable to the trust when the insured dies. [Cases: Trusts limited trust. A trust created for a limited period. Cf. perpetual trust. liquidating trust. A trust designed to be liquidated as soon as possible.• An example is a trust into which a decedent's business is placed to safeguard the business until it can be sold. living trust. See inter vivos trust. mandatory trust. A trust in which the trustee must dis­ tribute all the income generated by the trust property to one or more designated beneficiaries. Also termed simple trust. Cf. discretionary trust. marital-deduction trust. (1953) A testamentary trust created to take full advantage of the marital deduc­ tion; esp., a trust entitling a spouse to lifetime income from the trust and sufficient control over the trust to include the trust property in the spouse's estate at death. See marital deduction under DEDUCTION. [Cases: Internal Revenue (;::::>4169.] marital life-estate trust. See bypass trust. Massachusetts trust. See business trust under TRUST (4). Medicaid-qualifying trust. (1989) A trust deemed to have been created in an effort to reduce someone's assets so that the person may qualify for Medicaid, and that will be included as an asset for purposes of determining the person's eligibility.• A person who wants to apply and qualify for Medicaid, but who has too many assets to qualify, will sometimes set

up a trust - or have a spouse or custodian set up a trust using the applicant's own assets, under which the applicant may be the beneficiary of all or part of the payments from the trust, which are distributed by a trustee with discretion to make trust payments to the applicant. Such a trust may be presumed to have been established for the purpose of attempting to qualify for Medicaid, and may be counted as an asset ofthe applicant, resulting in a denial ofbenefits and the imposition of a penalty period during which the applicant cannot reapply. Nonetheless, Medicaid rules allow three types of trusts that do not impair Medicaid eligibility, since the trust assets are not con­ sidered the beneficiary's property: Miller trust, pooled trust, and under-65 trust. [Cases: Health (:=:47l(6).] Miller trust. An irrevocable trust funded with the income of an incompetent beneficiary who seeks to qualify for Medicaid in a state with an income cap. • Funding is strictly limited to the beneficiary's income (from any source). The assets in the trust are not included in the beneficiary's estate for Medicaid purposes if the trust assets will be used to reimburse the state after the beneficiary's death. Trust distri­ butions are kept below the income cap in order to preserve the beneficiary's Medicaid eligibility. This type of trust was first judicially sanctioned in lvIiller v. Ibarra, 746 F.Supp. 19 (D. Colo. 1990). Also termed Miller's trust; qualified income trust. ministerial trust. See passive trust.

minor's trust. See 2503(c) trust.

mixed trust. A trust established to benefit both private

individuals and charities. naked land trust. See land trust. naked trust. See passive trust. Nevada trust. See asset-protection trust (1). nominal trust. See passive trust. nominee trust. 1. A trust in which the beneficiaries have the power to direct the trustee's actions regard­ ing the trust property. 2. An arrangement for holding title to real property under which one or more persons or corporations, under a written declaration of trust, declare that they will hold any property that they acquire as trustees for the benefit of one or more undisclosed beneficiaries. Also termed (in sense 2) realty trust. [Cases: Trusts nondiscretionary trust. See fixed trust. nongrantor-owner trust. A trust in which the benefi­ ciary has an unrestricted power to vest the principal or interest in him or herself. IRC (26 USCA) § 678. Also termed 678 trust. offshore asset-protection trust. See asset-protection trust (l). offshore trust. See foreign-situs trust. onerous trust. A trust that places exceptionally heavy and time-consuming duties of responsibility and care on the trustee, often without providing for

compensation.• Because of the burden and inequity of requiring the trust to be administered voluntarily, courts often grant a trustee a reasonable sum for the tasks performed. oral trust. 1. A trust created by the settlor's spoken statements as opposed to a written agreement .• Trusts of real property must usu. be in writing (because of the statute of frauds). Trusts of personal property may be created orally but require clear and convincing evidence to show that an oral trust was created. Uniform Trust Act § 8407. - Also termed parol trust. [Cases: Trusts 2. A trust created by operation oflaw, such as a trust or a con­ structive trust. parol trust. See oral trust (1). passive trust. A trust in which the trustee has no duty other than to transfer the property to the benefi­ ciary. Also termed dry trust; general trust; nominal trust; simple trust; naked trust; ministerial trust; tech­ nical trust. See bare trustee under TRUSTEE. Cf. active trust. [Cases: Trusts (;::::> 136.] pension trust. An employer-funded pension plan; esp., a pension plan in which the employer transfers to trustees amounts sufficient to cover the benefits payable to the employees. [Cases: Labor and Employ­ ment (;::>400.] perpetual trust. A trust that is to continue as long as the need for it continues, such as for the lifetime of a beneficiary or the term of a particular charity. Cf. limited trust. personal-residence trust. An irrevocable trust to which the settlor transfers ownership of his or her personal residence while retaining the right to live there for a specified term of years.• The trust cannot hold any assets other than the residence and proceeds result­ ing from damage to or destruction of the residence. Cf. qualified personal-residence trust. [Cases: Trusts (;:--::> 1.] personal trust. See private trust. pet trust. An honorary trust that is established for the care and maintenance of a particular animal or group of animals.• Pet trusts are generally invalid because animals are incapable of compelling a trustee to act, and animals have no standing in law. Effec­ tively, the trust has no beneficiary. But some states (e.g., Colorado) statutorily recognize these trusts as valid. Pet trusts are covered in the Uniform Trust Code (§ 408). pooled-incomefund. See POOLED-INCOME FUND. pooled trust. An irrevocable, discretionary trust that (1) is established and managed by a nonprofit asso­ ciation, (2) is funded with the assets of disabled persons, and (3) maintains a separate trust account for each benefiCiary, but (4) pools the trust assets for investment purposes .• If the trust provides for dis­ tribution of a deceased beneficiary's interest to the state in reimbursement of Medicaid expenditures, a

1653

pooled-trust beneficiary may be eligible for Medicaid benefits. The assets contributed to the trust for the individual's benefit are not treated as the beneficiary's property. - Also termed pooled-assets trust. [Cases: Trusts 011(l).] pourover trust. (1981) An inter vivos trust that receives property (usu. the residual estate) from a will upon the testator's death. Cf. pourover will under WILL. power-oj-appointment trust. (1848) A trust in which property is left in trust for the surviving spouse. ­ The trustee must distribute income to the spouse for life, and the power of appointment is given to the spouse or to his or her estate. A power-of-appoint­ ment trust is commonly used to qualify property for the marital deduction. See marital deduction under DEDUCTION.

precatory trust (prek-;J-tor-ee). (1878) A trust that the law will recognize to carry out the wishes of the testator or grantor even though the statement in question is in the nature of an entreaty or recom­ mendation rather than a command. [Cases: Trusts c::) 29.] presumptive trust. See resulting trust. private trust. A trust created for the financial benefit of one or more designated beneficiaries rather than for the public benefit; an ordinary trust as opposed to a charitable trust. - Three elements must be present for a private trust: (1) the demonstrated intent of the settlor, (2) trust property (as res), and (3) a certain beneficiary capable of enforcing the trust. - Also termed personal trust. Cf. charitable trust. [Cases: Trusts 01.] protective trust. A trust that is designed to protect the trust property to ensure the continued support of the beneficiary. [Cases: Trusts 0152.] "In a broad sense, a spendthrift, support, or other similarly protective trust is one created to provide a fund for the maintenance of the beneficiary and at the same time to secure it against the beneficiary's improvidence or incapac· ity." 76 Am. Jur. 2d Trusts § 121 (1992).

public trust. See charitable trust. purchase-money resulting trust. A resulting trust that arises when one person buys property but directs the seller to transfer the property and its title to another. - Although a purchase-money resulting trust is properly understood as a court-imposed equitable remedy rather than as a true trust, the buyer is occa­ Sionally referred to as the "beneficiary" and the title­ holder as the "trustee." Abbr. PMRT. [Cases: Trusts C:>72-83.] QTIP trust (kyoo-tip). (1985) A trust that is estab­ lished to qualify for the marital deduction. _ Under this trust, the assets are referred to as qualified-ter­ minable-interest property, or QTIP. See qualified­ terminable-interest property under PROPERTY. Cf. qualified domestic trust. [Cases: Internal Revenue C::>4169(4).]

trust

qualiJied domestic trust. A trust for a noncitizen spouse qualifying for the marital deduction. See 26 USCA § 2056(d). - Abbr. QDOT. See marital deduc­ tion under DEDUCTION. Cf. QTIP trust. qualified income trust. See Miller trust. qualified personal-residence trust. An irrevocable trust that is funded with cash and the personal resi­ dence of the grantor, who retains the right to dwell in the residence for a specified term of years. - The trust may receive and hold additional cash to pay for trust expenses, mortgage installments, and improve­ ments to the residence. - Abbr. QPRT. Cf. personal­ residence trust. [Cases: Trusts 01.] qualified S-corporation trust. A trust that (1) owns stock in one or more S corporations, (2) distributes all income to one individual (who must be a United States citizen or resident), (3) requires only one ben­ eficiary at a time, and (4) requires the income-benefi­ ciary-elect to have the trust qualify as a QSST. _ The trust is rarely termed a qualified subchapter-S corpo­ ration trust but the common abbreviation is QSST, not QSCT. rabbicular trust. A rabbi trust that protects the trust assets against the claims of the employer's creditors by converting to a secular trust if the employer funding the trust becomes insolvent. _ The term is a port­ manteau word from rabbi and secular. Cf. rabbi trust; secular trust. rabbi trust. Slang. An irrevocable grantor trust whose assets remain subject to the claims of the grantor's general creditors, and from which benefits are paid to the grantor's employees if a stipulated event occurs. - A rabbi trust is a form of nonqualified deferred­ compensation plan. Because the trust can be reached by creditors, the participants can avoid being taxed on the constructive receipt of the benefits held in the trust. Its name derives from the IRS letter ruling that approved its use by a synagogue. Priv. Ltr. Rul. 81-13­ 107 (Dec. 31, 1980). Cf. rabbicular trust; secular trust. [Cases: Labor and Employment (:::::'431.] real-estate investment trust. See REAL-ESTATE INVEST­ MENTTRUST.

real-estate mortgage trust. See REAL-ESTATE MORTGAGE TRUST.

realty trust. See nominal trust (2). reciprocal trust. A trust arrangement between two parties in which one party is beneficiary of a trust established by the other party, and vice versa. _ Such trusts are common between husband and wife. remedial trust. See constructive trust. resulting trust. (18c) A remedy imposed by equity when property is transferred under circumstances suggest­ ing that the transferor did not intend for the transferee to have the beneficial interest in the property. Also termed implied trust; presumptive trust. Cf. construc­ tive trust. [Cases: Trusts 062-90.]

retained income trust. See grantor-retained income trust. revocable trust (rev-~-b-b~I). A trust in which the settlor reserves the right to terminate the trust and recover the trust property and any undistributed income. [Cases: Trusts C=>59.J savings-account trust. See Totten trust.

savings-bank trust. See Totten trust.

secret trust. An instrument, usu. a will, that appears

to give an absolute gift to another although the donee has orally agreed with the grantor that he or she is to use the property for the benefit of some third party. • Courts admit evidence of the promise to prevent unjust enrichment and enforce it by imposing the remedy of a constructive trust upon the reneging "trustee." Cf. semi-secret trust. [Cases: Trusts C=> 35(3).] secular trust. An irrevocable trust, funded by an employer, that protects an employee-beneficiary's deferred compensation from the claims of creditors during an employer's bankruptcy or insolvency. - The trust provides the employee-beneficiary with exclu­ sive rights. The employee enjoys security since the trust is funded and the funds are beyond the reach of creditors and immune from forfeiture, but the employee cannot defer income recognition. Cf. rab­ bicular trust; rabbi trust. self-settled trust. (1969) A trust in which the settlor is also the person who is to receive the benefits from the trust, usu. set up in an attempt to protect the trust assets from creditors .• In most states, such a trust will not protect trust assets from the settlor's credi­ tors. Restatement (Second) of Trusts § 156 (1959). ­ Also termed asset-protection trust. semi-secret trust. An instrument that indicates who is to serve as a trustee but fails to identify either the beneficiary or the terms of the trust, or both. - Tra­ ditionally, this trust was deemed to fail for want ofan ascertainable beneficiary. But the modern view is to provide the same relief as that given for a secret trust: to receive evidence of the donor's intent, including the intended beneficiary, and impose a constructive trust in his or her favor. Ct~ secret trust. [Cases: Trusts 1,64.] shifting trust. An express trust providing that, upon a specified contingency, it may operate in favor of an additional or substituted beneficiary. short-term trust. See Clifford trust. simple trust. 1. See mandatory trust. 2. See passive trust. 678 trust. See nongrantor-owner trust. special-needs trust. See supplemental-needs trust. special trust. See active trust. spendthrift trust. (1878) 1. A trust that prohibits the beneficiary's interest from being aSSigned and also prevents a creditor from attaching that interest; a trust

by the terms of which a valid restraint is imposed on the voluntary or involuntary transfer of the ben­ 141, 152.] 2. eficiary's interest. [Cases: Trusts A similar trust in which the restraint on alienation results from a statute rather than from the settlor's words in the trust instrument. "Origin of the term 'spendthrift trust.' The phrase 'spend· thrift trust' seems to have been first used, as might be expected, in Pennsylvania. The earliest instance in which a use of the phrase has been found was in 1875, when it appeared in the syllabus of a case, though the court did not use it in its opinion. Four years later, in Overman's Appeal [88 Pa. 276 (1879)]. the phrase is found in the audi­ tor's report (in italics), while the opinion of the court in the same case refers to the trust in question as 'a trust for a spendthrift as it is termed' lid. at 2781. That the phrase had not become familiar by 1882 is indicated by Thackara v. Mintzer [100 Pa. 151 (1882)]. where the head note refers to a 'spendthrift son trust,' but the court does not use that or any similar phrase. And in 1883, in the first edition of his Restraints on Alienation, Uohn Chipman] Gray used the phrase only rarely. and then spoke rather apologetically of 'spendthrift trusts so called.' In the second edition of this book, published twelve years later, the use of the phrase is frequent." Erwin N. Griswold, Spendthrift Trusts § 33, at 32 (2d ed. 1947).

split-interest trust. See charitable-remainder trust.

spray trust. See sprinkle trust.

sprinkle trust. A trust in which the trustee has discre­

tion to decide how much will be given to each ben­ eficiary. - Also termed spray trust. See SPRINKLE POWER.

standby trust. A trust created to manage a person's assets while he or she is out of the country or disabled. Trusts (;::::> 14.] supplemental-needs trust. A trust established to provide supplemental income for a disabled benefi­ ciary who is receiving or may be eligible to receive government benefits. - This type of irrevocable trust is often used by parents of disabled children to ensure the beneficiary's eligibility for government benefits by expressly prohibiting distributions that may be used for the beneficiary's food, shelter, or clothing. [Cases: Trusts C=> 11(1).] support trust. (1946) A discretionary trust in which the settlor authorizes the trustee to pay to the ben­ eficiary as much income or principal as the trustee believes is needed for support, esp. for "comfortable support" or "support in accordance with the benefi­ ciary's standard ofliving." - The beneficiary's interest cannot be voluntarily transferred, but creditors who provide necessaries can usu. reach it; general creditors cannot. [Cases: Trusts technical trust. See passive trust.

tentative trust. See Totten trust.

testamentary trust (tes-td-men-td-ree or -tree). (1832) A

trust that is created by a will and takes effect when the settlor (testator) dies. Also termed trust under will. Cf. inter vivos trust. [Cases: Wills (;::::>669-694.] Totten trust. (1931) A revocable trust created by one's deposit of money, typically in a savings account, in

trust

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the depositor's name as trustee for another. - A Totten trust is an early form of "pay on death" account, since it creates no interest in the beneficiary unless the account remained at the depositor's death. Its name derives from the earliest decision in which the court approved the concept, even though the formalities of will execution were not satisfied: In re Totten, 71 N.E. 748 (N.Y. 1904). A Totten trust is commonly used to indicate a successor to the account without having to create a will, and thus it is a will substitute. ­ Also termed tentative trust; bank-account trust; sav­ ings-account trust; saVings-bank trust; trustee bank account. [Cases: Trusts C'=:'34(l).] "A deposit by one person of his own money, in his own name as trustee for another, standing alone, does not establish an irrevocable trust during the lifetime of the depositor. It is a tentative trust merely, revocable at will, until the depositor dies or completes the gift in his lifetime by some unequivocal act or declaration, such as delivery of the pass book or notice to the beneficiary. In case the depositor dies before the beneficiary without revocation, or some deCisive act or declaration of disaffirmance, the presumption arises that an absolute trust was created as to the balance on hand at the death of the depositor." In re Totten, 179 N.Y. 112, 125-26 (1904) (Vann,J.).

transgressive trust. A trust that violates the rule against perpetuities. See RULE AGAINST PERPETUITIES. trust de son tort (da sawn [or son] tor[t]). See construc­ tive trust. trust ex delicto. See constructive trust. trust ex maleficio. See constructive trust. trust for support. A trust that, by its terms, prOVides that the trustee must payor apply only as much of the income and principal as is necessary for the edu­ cation and support of the beneficiary. [Cases: Trusts 280.] trust in invitum. See constructive trust. trust under will. See testamentary trust. 2503(b) trust. A trust that requires a distribution of income to the benefiCiary at least annually, and provides that gifts to the trust qualifying as gifts of a present interest become eligible for the annual gift-tax exclusion. - It is named after the section of the IRS code on which it is based. IRC (26 USCA) § 2S03(b). [Cases: Internal Revenue (;::=)4206.J 2503(c) trust. A trust with only one beneficiary, who must be a minor and must have the power to withdraw all assets from the trust upon attaining the age of21. ­ This type of trust derives its name from the require­ ments set forth in IRC (26 USCA) § 2S03(c). Although the trust may continue after the beneficiary turns 21, gifts to the trust will no longer qualify for the annual exclusion if the beneficiary has no immediate right to withdraw the gift. - Also termed minor's trust. [Cases: Internal Revenue C-"---:'4206.30.] under-65 trust. A discretionary trust established for the sale benefit of a Medicaid recipient who is under the age of 6S. - This type of trust may be established by anyone except the beneficiary, who must be less

than 65 years old at the time of creation. The assets in trust will not be included in the beneficiary's estate for purposes ofdetermining Medicaid eligibility. The beneficiary may receive distributions from the trust during life, but any balance remaining in the trust must be used to reimburse the state for the benefi­ ciary's Medicaid expenditures. unit-investment trust. 1. A trust in which funds are pooled and invested in income-producing securi­ ties. _ Units of the trust are sold to investors, who maintain an interest in the trust in proportion to their investment. 2. An investment company that gives a shareholder an undivided interest in a fixed pool of securities held by the trustee. - This type of company can be organized in several ways (as by trust inden­ ture, contract of custodianship or agency, or similar instrument), but is most commonly organized with a trust indenture. Such a company does not have a board of directors and issues only redeemable securi­ ties, each of which represents an und ivided interest in a unit ofspecified securities. IS USCA § 80a-4. See investment company under COMPANY. unitrust. (1971) A trust from which a fixed percentage of the fai r market value of the trust's assets, valued annually, is paid each year to the beneficiary. [Cases: Trusts C'=:'276.] voluntary trust. 1. A trust that is not founded on consideration. - One having legal title to property may create a voluntary trust by (1) declaring that the property is to be held in trust for another, and (2) transferring the legal title to a third person who acts as trustee. [Cases: Trusts (;:::J 13.] 2. An obliga­ tion arising out of a personal confidence reposed in, and voluntarily accepted by, one for the benefit of another. voting trust. A trust used to hold shares ofvoting stock in a closely held corporation, usu. transferred from a parent to a child, and empowering the trustee to exercise the right to vote. - The trust acts as custo­ dian of the shares but is not a stockholder. Cf. VOTING GROUP. [Cases: Corporations C'=:' 198.1(1).] "At common law there was great suspicion of voting trusts. One commentator described a voting trust as 'little more than a vehicle for corporate kidnapping.' This attitude has largely disappeared. State statutes now uniformly recog­ nize the validity of voting trusts and they have received a more hospitable judicial reception." Robert W. Hamilton, The Law of Corporations in a Nutshell 199 (3d ed. 1991).

wasting trust. A trust in which the trust property is gradually depleted by periodic payments to the ben­ eficiary. 4. A business combination that aims at monopoly. See ANTITRUST LAW.

business trust. A form ofbusiness organization, similar to a corporation, in which investors receive transfer­ able certificates ofbeneficial interest instead of stock shares. - Also termed Massachusetts trust; common­ law trust. lCases: Internal Revenue (;:::>4206; JointStock Companies and Business Trusts 1, 8.]

trust account 'The business trust was developed in Massachusetts from 1910 to 1925 to achieve limited liability and to avoid restric­ tions then existing there on a corporation's acquiring and developing real estate, by adoption of the trust device, ' , ," Henry G. Henn & John R. Alexander, Laws of Corporations § 58, at 117 (3d ed. 1983).

common-law trust. See business trust. Massachusetts trust. See business trust. trust account. See CLIENT TRUST ACCOUNT. trust agreement. See declaration oftrust (2) under DEC­ LARATION (1).

trustbuster, n. A person esp. a federal officer - who seeks the dissolution ofbusiness trusts under the anti­ trust laws. See business trust under TRIJST (4). trust certificate. See EQUIPMENT TRUST CERTIFICATE. trust company. See COMPANY. trust corporation. See trust company under COMPANY. trust deed. 1. See declaration oftrust (2) under DECLARA­ TION (1).2. See deed oftrust under DEED. trust de son tort (da sawn [or son] tor[tD. See construc­ tive trust under TRUST. trust distribution. See DISTRIBUTION. trustee (tras-tee), n. (l7c) 1. One who stands in a fidu­ ciary or confidential relation to another; esp., one who, having legal title to property, holds it in trust for the benefit of another and owes a fiduciary duty to that beneficiary.• Generally, a trustee's duties are to convert to cash all debts and securities that are not qualified legal investments, to reinvest the cash in proper securi­ ties, to protect and preserve the trust property, and to ensure that it is employed solely for the beneficiary, in accordance with the directions contained in the trust instrument. [Cases: Trusts 171.] bare trustee. A trustee of a passive trust.• A bare trustee has no duty other than to transfer the property to the beneficiary. See passive trust under TRUST. corporate trustee. (1S52) A corporation that is empow­ ered by its charter to act as a trustee, such as a bank or trust company. indenture trustee. A trustee named in a trust inden­ ture and charged with holding legal title to the trust property; a trustee under an indenture. joint trustee. See COTRUSTEE. judicial trustee. (ISc) A trustee appointed by a court to execute a trust. quasi-trustee. (1830) One who benefits from a breach of a trust to a great enough degree to become liable as a trustee. successor trustee. (1866) A trustee who succeeds an earlier trustee, usu. as provided in the trust agree­ ment. [Cases: Trusts C=> 169,243.] testamentary trustee (tes-t;J-men-t;J-ree or -tree). (1811) A trustee appointed by or acting under a will; one appointed to carry out a trust created by a will. [Cases: Wills \.~681.]

1656

township trustee. One of a board ofofficers to whom, in some states, a township's affairs are entrusted. [Cases: Towns C=>28.] trustee ad litem (ad h-tem or -t;Jm). (1921) A trustee appointed by the court. trustee de son tort (d. turntable doctrine. See ATTRACTIVE-NUISANCE DOC­ TRINE.

turpis causa (tar-pis kaw-za). [Latin "immoral consid­ eration"] See immoral consideration under CONSIDER­ ATION

(1).

turpitude (tar-pa-t[y]ood). See MORAL TURPITUDE. tutela (t[yloo-tee-Ia), n. [Latin "tutelage"] Roman law. A type of guardianship either for those not having reached puberty (tutela impuberum) or for women (tutela mulierum). - The guardian was called the tutor, the ward the pupillus. Guardians for women no longer existed in Justinian's time. Cf. CURA. tutelage (t[y]oo-t6.]

Special Assistant to the United States Attorney. An attorney appointed by the Attorney General for a limited period to assist a United States Attorney in specific cases. 28 USCA § 543. - Abbr. SAUSA. [Cases: District and Prosecuting Attorneys United States Bankruptcy Court. See BANKRUPTCY COURT.

United States Copyright Office

United States Botanic Garden. An enclosed garden on the U.S. Capitol grounds where plants are cultivated for ceremonial use, public display, and research.• Many rare botanical specimens are available for study by students and scientists at the Garden. United States Claims Court. See UNITED STATES COI::RT OF FEDERAL CLAIMS.

United Stales Coast Guard. A military service and armed-forces branch that enforces the federal laws applicable to waters subject to U.S. jurisdiction, admin­ isters laws and promulgates regulations for the safety of lives and property on waters under U.S. jurisdic­ tion, carries out maritime rescue operations, performs oceanographic research, and at times serves as a spe­ cialized branch of the Navy.• The Coast Guard was established in 1915. 14 USCA § 1. It has been part ofthe U.S. Department of the Treasury and the U.S. Depart­ ment of Transportation. Today it is part of the U.S. Department of Homeland Security during peacetime, and the U.S. Department ofDefense during wartime. Abbr. USCG. [Cases: Armed Services C=:=>4.] United States Coast Guard Academy. An institution of higher learning responsible for educating and training commissioned officers for service in the United States Coast Guard.• The academy began in 1876 as the School of Instruction of the Revenue Cutter Service near New Bedford, Massachusetts. In 1915, the academy acquired its current name and, in 1932, moved to New London, Connecticut Abbr. USCGA. [Cases: Armed Services (;~-:> 16.] United States Code. A multivolume published codifica­ tion of federal statutory law. Abbr. U.S.c.; USc. United States Code Annotated. A multivolume publi­ cation of the complete text of the United States Code with historical notes, cross-references, and casenotes of federal and state decisions construing specific Code sections. - Abbr. USCA. United States Commissioner. See COMMISSIONER. United States Commission on Civil Rights. The agency that compiles information about discrimination based on race, color, religion, sex, age, disability, or national origin, and about the denial of equal protection of the laws in voting, education, employment, and housing. • The agency makes findings and recommendations to Congress but has no enforcement power. It was estab­ lished by the Civil Rights Act of 1957. - Abbr. CCR. United States Copyright Office. A branch ofthe Library of Congress that is responsible for implementing federal copyright laws .• In addition to processing applications for copyrights, the U.S. Copyright Office stores depos­ ited copyrighted materials and issues opinions (by request) on questions ofcopyright protection. Materials deposited with this agency are not automatically added to the Library of Congress collection; a separate and direct submission to the Library may be required. The Office also administers various licensing provisions of the statute, including collecting and distributing royal­

ties. [Cases: Copyrights and Intellectual PropertyC-~ 50.30.] United States court. See federal court under COURT. United States Court of Appeals. A federal appel­ late court having jurisdiction to hear cases in one of the 13 judicial circuits of the United States (the First Circuit through the Eleventh Circuit, plus the District of Columbia Circuit and the Federal Circuit). - Also termed circuit court. [Cases: Federal Courts C=>521.] United States Court of Appeals for the Armed Forces. The primary civilian appellate tribunal responsible for reviewing court-martial convictions from all the military services. 10 USCA §§ 941-950. Formerly also termed Court ofMilitary Appeals. [Cases: Military Justice United States Court ofAppeals for the Federal Circuit. An intermediate-level appellate court with jurisdic­ tion to hear appeals in patent cases, various actions against the United States to recover damages, cases from the US. Court of Federal Claims, the U.S. Court ofInternational Trade, the U.S. Court of Appeals for Veterans Claims, the Merit Systems Protection Board, and some administrative agencies. _ 'The Court origi­ nated in the 1982 merger ofthe Court of Customs and Patent Appeals and the U.S. Court of Claims (although the trial jurisdiction of the Court of Claims was given to a new U.S. Claims Court). Among the purposes of its creation were ending forum-shopping in patent suits, settling differences in patent-law doctrines among the circuits, and allowing a Single forum to develop the expertise needed to rule on complex technological questions that arise in patent suits. - Abbr. CAFC, Fed. Cir. - Often shortened to Federal Circuit. [Cases: Federal Courts C:--:>521.] United States Court of Appeals for Veterans Claims. An Article I federal appellate court that has exclusive jurisdiction to review decisions of the Board ofVeterans Appeals. - The Court was created in 1988 as the United States Court of Veterans Appeals; its name was changed in 1998. Its seven judges are appointed by the Presi­ dent and confirmed by the Senate; they serve IS-year terms. Appeals from its decisions are to the U.S. Court of Appeals for the Federal Circuit. 38 USCA §§ 7251 et seq. Also termed United States Court of Veterans Appeals. [Cases: Armed Services C=> IS4.J United States Court of Federal Claims. A speCialized federal court created under Article I of the Constitu­ tion in 1982 (with the name United States Claims Court) as the successor to the Court of Claims, and renamed in 1992 as the United States Court of Federal Claims. - It has original, nationwide jurisdiction to render a money judgment on any claim against the United States founded on the Constitution, a federal statute, a federal regulation, an express or implied-in-fact contract with the United States, or any other claim for damages not sounding in tort. - Abbr. Cl. Ct.; (formerly) Ct. Cl. ­ Also termed Court of Claims. [Cases: Federal Courts C=>1071.]

United States Court of International Trade. A court with jurisdiction over any civil action against the United States arising from federal laws governing import transactions or the eligibility of workers, firms, and communities for adjustment assistance under the Trade Act of 1974 (19'USCA §§ 2101-2495). _ Its exclusive jurisdiction also includes actions to recover customs duties, to recover on a customs bond, and to impose certain civil penalties for fraud or negligence. See 28 USCA §§ 1581-1584. - Abbr. USCIT; CIT.­ Also termed International Trade Court; Court ofInter­ national Trade; (formerly) U.S. Customs Court. United States Court of Veterans Appeals. See UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS.

United States currency. See CURRENCY. United States Customs Court. A court that formerly heard cases involving customs and duties. - Abolished in 1980, its responsibilities have been taken over by the United States Court ofInternational Trade. See UNITED STATES COURT OF INTERNATIONAL TRADE.

United States Customs Service. An agency in the U.S. Department of Homeland Security responsible for col­ lecting import duties on goods, wares, and merchan­ dise, and for enforcing customs and related laws. - The Customs Service was created in 1863. 12 Stat. 665. It was transferred from the Department of the Treasury in 2003. - Also termed Bureau of Customs. [Cases: Customs Duties C=>53-60.] United States District Attorney. See UNITED STATES ATTORNEY.

United States District Court. A federal trial court having jurisdiction to hear civil and criminal cases within its judicial district.• The United States is divided into nearly 100 federal judicial districts. Each state has at least one judicial district. Also, the District of Columbia, Puerto Rico, Guam, the Virgin Islands, and the Northern Mariana Islands each have one district. Abbr. U.S.D.C. [Cases: Federal Courts C=>971, 973.] United States Fish and Wildlife Service. A unit in the U.S. Department of the Interior responsible for managing more than 93 million acres ofland and water consisting of more than 500 national wildlife refuges and thousands of small wetlands. _ It also administers or enforces laws relating to migratory birds, endan­ gered species, certain marine mammals, and sports fisheries. - Abbr. FWS; USFWS. [Cases: Environmen­ tal LawC=>525; Fish C=>11; GameC=>3.5.] United States Foreign Intelligence Surveillance Court. An ll-judge court that hears requests from the Attorney General for surveillance warrants under the Foreign Intelligence Surveillance Act. _ The court's proceed­ ings and records are normally closed to the public. Its rulings may be reviewed by the Foreign Intelligence Court of Review. - Abbr. FISC. [Cases: War and National Emergency 16.] United States Navy. The naval-operations branch ofthe United States armed forces, including naval aviation and the United States Marine Corps, and the United States Coast Guard when operating as a service in the Navy. - 1he United States Navy is under the author­ ity of the U.S. Department of the Navy. - Abbr. USN. [Cases: Armed Services United States of America. A federal republic formed after the War of Independence and made up of 48 conterminous states, plus the state of Alaska and the District of Columbia in North America, plus the state of Hawaii in the Pacific. - Abbr. USA; U.S. [Cases: United States 1.] United States officer. See OFFICER (1). United States Patent and Trademark Office. The Department of Commerce agency that examines patent and trademark applications, issues patents, registers trademarks, and furnishes patent and trademark information and services to the public. Abbr. PTO; USPTO. Often shortened to Patent Office; Trade­ mark Office. United States person. A U.S. resident or national (except a national living outside the United States who is employed by someone other than a United States person), a domestic American concern, and any foreign subSidiary or affiliate of a domestic concern with opera­ tions controlled by the domestic concern .• Under anti­ boycott regulatory controls, no United States person may participate in a secondary boycott or discrimina­ tion against Jews and others by members of the League of Arab States. 50 USCA app. § 2415(2). United States Postal Service. An independent establish­ ment in the executive branch responsible for operat­ ing post offices, safeguarding and delivering mail, and enforcing the laws affecting the integrity and security of the mail. - The Postal Reorganization Act of 1970 replaced the cabinet-level Post Office Department

with the United States Postal Service. 39 USCA § 101 et seq. Abbr. USPS. [Cases: Postal Service C~ 1-5.] United States Reports. The official printed record ofUS. Supreme Court cases.• In a citation, it is abbreviated as U.S., as in 388 U.S. 14 (1967). [Cases: Reports United States Secret Service. A law-enforcement agency in the US. Department of Homeland Security respon­ sible for providing security for the President, Vice Pres­ ident, certain other government officials, and visiting foreign diplomats, and for protecting US. currency by enforcing the laws relating to counterfeiting, forgery, and credit-card fraud.• The Service was transferred from the Department of the Treasury in 2003. Often shortened to Secret Service. [Cases: United States (,.~ 34.]

United States Sentencing Commission. An independent commission in the judicial branch of the federal gov­ ernment responsible for setting and regulating gUide­ lines for criminal sentencing in federal courts and for issuing policy statements about their application .• The President appoints its members with the advice and consent ofthe Senate. It was created under the Sentenc­ ing Reform Act 1984. 28 USCA § 991. United States Sentencing Guidelines. A detailed set of instructions for judges to determine appropriate sentences for federal crimes. - Abbr. USSG. Also termed federal sentencing guidelines. (Cases: Sentencing and Punishment C=65 L] United States Supreme Court. See SUPREME COURT OF THE UNITED STATES. United States Tax Court. See TAX COURT, U.S. United States Trade and Development Agency. An independent federal agency in the executive branch responsible for promoting trade between the United States and developing countries to create jobs in the United States and to promote economic progress in poorer nations.• It was established in 1961 as the Trade and Development Program and was renamed in 1992. - Abbr. TDA; USTDA. United States Trade Representative. The top U.S. trade negotiator and adviser to the President on foreign­ trade policy.• The Cabinet-level office is responsible for making annual reports on nations that do not act diligently to stop piracy of copyrighted material. The Trade Representative holds the rank ofambassador. Abbr. USTR. See OFFICE OF THE UNITED STATES TRADE REPRESENTATIVE; SPECIAL 30l. United States trustee. A federal official who is appointed by the Attorney General to perform administrative tasks in the bankruptcy process, such as appointing bankruptcy trustees in Chapter 7 and Chapter 11 cases. See TRUSTEE (2). [Cases: BankruptcyC:::o300l-3011.] unities doctrine of marriage. See LEGAL-UNITIES DOCTRINE. Uniting and Strengthening America by Provid­ ing Appropriate Tools Required to Intercept and Obstrnct Terrorism. See USA PATRIOT ACT.

unit-investment trust. See TRUST. unitization. Oil & gas. 1he collection of producing wells over a reservoir for joint operations such as enhanced­ recovery techniques .• Unitization is usu. carried out after primary production has begun to fall off substan­ tially, in order to permit efficient secondary-recovery operations. It is also done to comply with well-spacing requirements established by state law or regulation. Pooling, by contrast, is usu. associated with drilling a single well and operating that well by primary-pro­ duction techniques. Cf. POOLING.[Cases: Mines and Minerals C:::o92.78.] unitize (yoo-n;J-tIz), vb.

compulsory unitization. Unitization done by order ofa regulatory agency. Also termed forced unitization. [Cases: Mines and Minerals C:::o92.78.) forced unitization. See compulsory unitization. voluntary unitization. Unitization arranged byagree­ ment ofthe owners of mineral interests. [Cases: Mines and Minerals C:::o78.1(7), 79.1(5).] unitization clause. Oil & gas. A provision in an oil-and­ gas lease granting the lessee the right to unitize the leased premises, generally for enhanced-recovery oper­ ations.[Cases: Mines and Minerals C:::o78.1(7).] unit-ownership act. A state law governing condominium ownership. [Cases: Condominium ~~'2.1 unit price. See PRICE. unit pricing. A system in which contract items are priced per unit rather than on the basis of a flat contract price. [Cases: Contracts C:::o231(1); Sales C:::o77(l).j unit rule. 1. Securities. A method ofvaluing securities by multiplying the total number of shares held by the sale price of one share sold on a licensed stock exchange, ignoring all other facts about value. 2. Parliamentary law. A convention's rule that lets a delegation's majority cast the entire delegation's votes. Cf. instructed delegate under DELEGATE. unitrust. See TRUST. units-of-output depreciation method. See DEPRECIA­ TION METHOD. units-of-production method. Tax. An account­ ing method in which the depreciation provision is computed at a fixed rate per product unit, based on an estimate of the total number of units that the property will produce during its service life. - This method is used in the oil-and-gas industry when the total number of units of production (Le., barrels in a reserve) can be accurately estimated. unity, n. (13c) 1. The fact or condition of being one in number; oneness. 2. Jointness in interest, possession, time, or title.• At common law, all four of these unities were required for the creation of a joint tenancy. See joint tenancy under TENANCY. [Cases: Joint Tenancy 27.] universal agency. See general agency under AGENCY (1).

universal agent. See AGENT. Universal Copyright Convention. A 1952 treaty binding signatories to give citizens of other member nations the same copyright protection that their own citizens receive. 25 U.S.T. 1341, T.LA.S. No. 7868.• Admin­ istered by the United Nations Educational, Scientific, and Cultural Organization, the Convention does not apply between nations that are also signatories of the Berne Convention.lhe United States signed the treaty in 1955. Abbr. L'CC. [Cases: Copyrights and Intel­ lectual Property (:::::> 34.] Universal Declaration of Human Rights. An interna­ tional bill of rights proclaimed by the United Nations in December 1948, being that body's first general enu­ meration ofhuman rights and fundamental freedoms . • The preamble states that "recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world." The Declara­ tion contains a lengthy list of rights and fundamen­ tal freedoms. For the full text of the Declaration, see Appendix C. [Cases: International Law 1O.45(1).J "The Universal Declaration is the first comprehensive human rights instrument to be proclaimed by a universal international organization. Because of its moral status and the legal and political importance it has acquired over the years, the Declaration ranks with the Magna Carta, the French Declaration of the Rights of Man and the American Declaration of Independence as a milestone in mankind's struggle for freedom and human dignity. Its debt to all these great historical documents is unmistakable." Thomas Buergenthal et aI., International Human Rights in a Nutshell 35-36 (3d ed. 2002).

universal defense. See real defense under DEFENSE (4).

universal inheritance. See INHERITANCE. universal-inheritance rule. Wills & estates. A doctrine holding that an intestate estate escheats to the state only if the decedent leaves no surviving relatives, no matter how distant. • Through the first half ofthe 20th century, this rule was broadly followed in American jurisdictions. The Uniform Probate Code abandons the universal-inheritance rule and proVides that if no member ofthe third or a nearer parentela survives the decedent, the intestate estate escheats to the state. Also termed rule of universal inheritance. See PAREN­ TELA. Cf.laughing heir under HEIR; GRADUAL METHOD. [Cases: Escheat ~';:) 3.] universalist movement. Copyright. A 19th-century campaign in Europe to recognize a worldwide copy­ right law based on an author's moral rights. "The universalist movement evolved both in and out of France, starting with an international Congress of Authors and Artists in Brussels in 1858. attended by del­ egates of literary societies and universities, as well as by authors, artists, journalists, librarians, and lawyers. The movement gained momentum at an 1878 international literary congress in Paris presided over by Victor Hugo." Paul Goldstein, International Copyright: Principles, Law, and Practice 19 (2001). !

universality. l. Equality of applicability. 2. Copyright. A nation's policy or practice of protecting artists' rights in their creations irrespective of the creator's nation­ ality or where the work was created .• Universality, the most generous approach to international intellec­ tual-property rights, is generally favored in countries that treat copyright as a moral right. Cf. RECIPROCITY; NATIONAL TREATMENT. [Cases: Copyrights and Intel­ lectual Property (:::::>, 34.] universal legacy. See LEGACY. universal legatee. See LEGATEE. universal life insurance. See LIFE INSURANCE. universal malice. See MALICE. universal partnership. See PARTNERSHIP. universal succession. See SUCCESSION (2). universal successor. See SUCCESSOR. universal synod. See general synod under SYNOD. universal title. See TITLE (2). universitas (yoo-ni-v;u-sd-tas), n. [Latin] Roman law. A union of persons or things considered as a whole; a corporation. universitas facti (yoo-ni-v;U-S;Has fak-tI). [Law Latin] A plurality ofcorporeal things of the same kind regarded as a whole, such as a herd of cattle. universitas juris (yoo-ni-var-sd-tas joor-is). [Latin] Roman & civil law. The whole of a person's rights and liabilities; the totality of a person's legal relations. "A universitas juris is a collection of rights and duties united by the single circumstance of their having belonged at one time to some one person." Henry S. Maine, Ancient Law 148 (17th ed. 1901).

universitas personarum

universitas personarum (yoo-ni-v. UPC. abbr. UNIFORM PROBATE CODE. up-front performance bond. See PERFORMANCE BOND.

UPIA. abbr. UNIFORM PRUDENT INVESTOR ACT. UPL. abbr. Unauthorized practice oflaw 86.] usurp (yoo-s3rp or yoo-zarp),

vb. usurpation ofadvowson (ad-vow-zan). Hist. An injury consisting in the absolute ouster or dispossession of the patron from the advowson. - This happens when a stranger, without the right to do so, presents a clerk who is installed in office. See ADVOWSON. usury (yoo-zh. 2. The period between the end of one term of court and the beginning of the next; the space oftime during which a court holds no sessions. [Cases: Courts C=69.] • The traditional

vacations in England were Christmas vacation, begin­ ning December 24 and ending January 6; Easter vacation, beginning Good Friday and ending Easter Tuesday; Whitsun vacation, beginning on the Saturday immediately before and ending the 'Tuesday immedi­ ately after Whitsunday (Le., Pentecost, the seventh Sunday after Easter); and the long vacation, beginning August 13 and ending October 23. 3. Loosely, any time when a given court is not in session. lCases: Courts 69.]4. Eccles. law. The act or process by which a church or benefice becomes vacant, as on the death or resigna­ tion of the incumbent, until a successor is appointed. ­ Also termed (in sense 4) vacatura. vacation barrister. See BARRISTER. vacatur (vd-kay-tar), n. [Law Latin "it is vacated"] (17c) 1. The act ofannulling or setting aside. 2. A rule or order by which a proceeding is vacated. vacatura (vay-ka-t[y]oor-J), n. [Latin] VACATION (4). vacua possessio (vak-yoo-a pJ-zes[h]-ee-oh). [Latin "a vacant possession"] Roman & civil law. Free and unbur­ dened possession, which a seller must convey to a pur­ chaser. vacuus (vak-yoo-as), adj. [Latin] Hist. Empty; void; vacant; unoccupied. vades. See VAS. vadiare duellum (vad-ee-air-ee d[y]oo-el-am), vb. [Law Latin "to wage the duellum"] Hist. To pledges mutually for engaging in trial by combat vadiare legem (vad-ee-air-ee lee-jam), vb. [Law Latin "to wage law"] Hist. (Of a defendant in a debt action) to give security to make one's law on a day aSSigned - that is, the defendant would pledge, upon giving the security, to do two things on the appointed day in court: (1) take an oath in open court that the debt was not owed, and (2) bring 11 compurgators who would swear that they believed what the defendant said. vadiatio (vad-ee-ay-shee-oh), n. [Law Latin] Hist. Wager. Cf. INVADIATIO. PI. vadiationes (vad-ee-ay-shee-oh­ neez). vadiatio duelli (vad-ee-ay-shee-oh d[y]oo-el-l). [Law Latin "wager of battle"] See TRIAL BY COMBAT. vadiatio legis (vad-ee-ay-shee-oh lee-jis). [Law Latin "wager oflaw"] See WAGER OF LAW. vadimonium (vad-a-moh-nee-am), n. Roman law. 1. A guarantee (originally backed by sureties) that a litigant would appear in court. 2. A solemn promise to this effect. - Also termed vadimony. vadium (vay-dee-dm), n. [Law Latin "pledge, bail, security"] Hist. 1. Security by a pledge of property.

1689

vadium mortuum (vay-dee-dm mor-choo-dm). [Law Latin "dead pledge"] A mortgage. - This was consid­ ered a «dead pledge" because an estate was given as security by the borrower, who granted to the lender the estate in fee, on the condition that if the money were not repaid at the specified time, the pledged estate would continue as the lender's it would be gone from, or "dead" to, the borrower (mortgagor). ­ Also termed mortuum vadium. See MORTGAGE. [Cases: Mortgages C=> 1.] vadium vivum (vay-dee-dm vI-vdm). [Law Latin "live pledge"] A living pledge, which exists when an estate is granted by a borrower to a lender until a debt is paid out of the estate's proceeds .• The pledge was so called because neither the money nor the lands were lost; it was a "living pledge" because the profits of the land were constantly paying off the debt. - Also termed vivum vadium; vif-gage. 2. Wages; salary. vadium ponere (vay-dee-dm poh-nd-ree), vb. Hist. To take bail for the appearance of a person in court. vagabond (vag-d-bond), n. Archaic. A homeless wanderer without any means or an honest livelihood; VAGRANT. • This term became archaic over the course of the 20th century, as vagrants won the right not to be forcibly removed from cities in such cases as Papachristou v. City ofJacksonville, 405 U.S. 156,92 S.Ct. 839 (1972). In the 19808 and 19908, vagabonds came to be known as street people and homeless people, or the homeless. ­ Also termed vagabundus (vag-d-b,m-dds). "[AJII idle persons or vagabonds [are) ... divided into three classes, idle and disorderly persons, rogues and vagabonds, and incorrigible rogues; - all these are offenders against the good order, and blemishes in the government, of any kingdom. They are therefore all punished ... rogues and vagabonds with whipping and imprisonment not exceeding six months ...." 4 William Blackstone, Commentaries on the Laws of England 170 (1769).

vagabondage (vag-d-bon-dij). 1. The condition of a vagabond. 2. Vagabonds as a class. Also termed (in sense 1) vagabondism; (in senses 1 & 2) vagabondry. vagabundus (vag-d-ban-das). [Law Latin] See VAGABOND.

vagrancy (vay-gran-see), n. (l7c) 1. ]b.e state or condition ofwandering from place to place without a home, job, or means of support. • Vagrancy is generally consid­ ered a course of conduct or a manner ofliving, rather than a single act. But under some statutes, a Single act has been held sufficient to constitute vagrancy. One court held, for example, that the act of prowling about and creeping up on parked cars and their occupants at night, under circumstances suggesting an intent to commit a crime, constitutes vagrancy. See Smith v. Drew, 26 P.2d 1040 (Wash. 1933). Many state laws prohibiting vagrancy have been declared unconsti­ tutionally vague. Also termed vagrantism. [Cases: Vagrancy C=> 1.] 2. An instance ofsuch wandering. Cf. LOITERING.

"Vagrancy is a status resulting from misconduct and in the form of a socially harmful condition or mode of life

va/ens agere which has been defined and made punishable by law. Until recently it was a misdemeanor, or group of misdemean· ors, in most states." Rollin M. Perkins & Ronald N. Boyce, Criminal Law 494 (3d ed. 1982).

vagrant, adj. (15c) 1. Of, relating to, or characteristic of a vagrant; inclined to vagrancy. 2. Nomadically homeless. [Cases: VagrancyC='1.] vagrant, n. (ISc) 1. At common law, anyone belonging to the several classes of idle or disorderly persons, rogues, and vagabonds. 2. One who, not having a settled habi­ tation, strolls from place to place; a homeless, idle wanderer. - The term often refers to one who spends time in idleness, lacking any property and without any visible means ofsupport. Under some statutes, a vagrant is an offender against or menace to the public peace, usu.liable to become a public burden. Cf. VAGABOND. [Cases: VagrancyC=>1.] vagrantism. See VAGRANCY. vague, adj. (16c) 1. Imprecise; not sharply outlined; indistinct; uncertain. unconstitutionally vague. 1. (Of a penal legislative provision) so unclear and indefinite as not to give a person of ordinary intelligence the opportunity to know what is prohibited, restricted, or reqUired . [Cases: Criminal Law C=> 13.1(1); Statutes 47.J 2. (Of a statute) impermissibly delegating basic policy matters to administrators and judges so such a degree as to lead to arbitrary and discriminatory application. [Cases: Statutes 47.] 2. (Of language) describing a distribution around a central norm, as opposed to a neatly bounded class; broadly indefinite; not clearly or concretely expressed. 3. Characterized by haziness of thought. vague-and-indefinite rejection. See REJECTION. vagueness. (18c) 1. vncertain breadth of meaning . - Though common in writings generally, vagueness raises due-process concerns if legislation does not provide fair notice of what is required, restricted, or prohibited, because enforcement may become arbitrary. 2. Loosely, ambi­ guity. See AMBIGUITY. vagueness doctrine. (1957) COrlstitutionallaw. The doctrine based on the Due Process Clause requir­ ing that a criminal statute state explicitly and definitely what acts are prohibited or restricted, so as to provide fair warning and preclude arbitrary enforcement. ­ Also termed vOid-for-vagueness doctrine. See void for vagueness under VOID. Cf. OVERBREADTH DOCTRINE. [Cases: Constitutional Law C=>4S06.] valeat quantum (vay-iee-at [or -dt] kwon-tdm). [Law Latin] Hist. For as much as it is worth. valens agere (vay-lenz aj-ar-ee). [Law Latin] Hist. Able to act. "A person is said to be va/ens ague when, from age and position, he is able to protect his rights against the invasion of them by others: against such a person not protecting his rights prescription runs, while prescription does not

valentia run against one who is non valens agere." John Trayner, Trayner's Latin Maxims 621 (4th ed. 1894).

valentia (vd-Ien-shee-d), n. [Law Latin from Latin valere "to be of value") Hist. Value; worth. - In old indict­ ments for larceny, this term often appeared to express the value of the things taken. valentia agendi (vd-Ien-shee-d d-jen-dl). [Law Latin) Hist. The power of acting. See VALENS AGERE. valere seipsum (vd-Ieer-ee see-ip-sdm). [Law Latin] Hist. To be of its own value. - The phrase usu. referred to land. valid, adj. (l6c) 1. Legally sufficient; binding . 2. Meritorious . validate, vb. - validation, validity, n. valid agreement. See valid contract under CONTRACT. validating statute. See 5TATUTE. valid contract. See CONTRACT. validity opinion. See OPINION (2). validity search. An exhaustive search for prior art or any other facts that can be used to invalidate a patent. See BREAKING A PATENT. Cf. INFRINGEMENT SEARCH; PATENTABILITY SEARCH.

valid judgment. See JUDGMENT. valid marriage. See MARRIAGE (1). valid warrant. See WARRA::-.fT (1). valise diplomatique (vd-Iees di-ploh-ma-teek). See DIP­ LOMATIC POUCH.

Vallescura rule. Maritime law. The holding that when a maritime loss is due to more than one cause, and the carrier is exempt from liability for at least one of them, the burden is on the carrier to prove what loss is due to the exempt cause. - If the carrier fails to prove the exemption, it is liable for the entire loss. Schnell v. 'fhe Vallescura, 293 U.S. 296, 55 S.Ct. 194 (1934). VA loan. See veteran's loan under LOAN. valor (val-dr), n. [Latin) Hist. Value; worth; rate; a val­ uation. - Also spelled (esp. in BrE) valour. See AD VALOREM.

valor beneficiorum (val-dr ben-~-fish-ee-or-dm). [Law Latin] Hist. The value ofall ecclesiastical benefices and spiritual preferments. valor maritagii (val-df mar-d-tay-jee-r). [Latin] Hist. The value of a marriage .• Under ancient tenures, this was the amount that a female ward forfeited to a guardian when the guardian had offered her a marriage without disparagement (inequality), and she refused. Likewise in feudal law, the guardian in chivalry had the right of tendering to a minor ward a suitable match, without disparagement. If the ward refused, she had to compen­ sate the guardian for the value of the marriage (valor maritagii). - Also termed (in the accusative) valorem maritagii; (Scots law) avail ofmarriage. "If an infant ward of a guardian in chivalry refused a match tendered by the guardian, he or she forfeited the value of

1690 the marriage (valorem maritagii) to the guardian; that is, so much as ajury would assess, or anyone would bona fide give to the guardian for such an alliance." 2 Alexander M. Burrill, A Law Dictionary and Glossary 572-73 (2d ed. 1867).

valuable, adj. Worth a good price; having financial or market value. valuable consideration. See CONSIDERATION (1). valuable improvement. See IMPROVEME::-.fT. valuable papers. Documents that, upon a person's death, are important in carrying out the decedent's wishes and in managing the estate's affairs .• Examples include a will, title documents, stock certificates, powers of attorney, letters to be opened on one's death, and the like. Some statutes require that, to be effective, a holo­ graphic will devising realty must be found among the decedent's valuable papers. valuable-papers insurance. See I::-.fSURANCE. valuation, n. (l6c) 1. The process of determining the value of a thing or entity. 2. The estimated worth of a thing or entity. - value, valuate, vb. assessed valuation. (1825) The value that a taxing authority gives to property and to which the tax rate is applied. [Cases: Taxation C=>2512, 2520.] special-use valuation. (1976) An executor's option of valuating real property in an estate, esp. farmland, based on its current use rather than for its highest potential value. [Cases: Internal Revenue C=>4183; Taxation C::;> 3350.1 valuation date. See ALTERNATE VALUATION DATE. valuation list. Hist. An inventory of all the ratable her­ editaments in a parish, each item in the inventory recording the name of the occupier, the owner, the property, the extent of the property, the gross estimated rental, and the ratable value. - The list was traditionally prepared by the overseers of each parish. value, n. (14c) 1. The significance, desirability, or utility of something. social value. The significance, deSirability, or utility of something to the general public. 2. The monetary worth or price of something; the amount of goods, services, or money that something commands in an exchange. actual cash value. Insurance. 1. Replacement cost minus normal depreciation. [Cases: Insurance 2181.) 2. See fair market value. actual market value. Seefair market value.

actual value. See fair market value.

agreed value. A property's value that is fixed by agree­

ment ofthe parties, esp. the property's owner and the person or entity valuating the property. _ An example is a list of property values contained in an insurance policy. [Cases: Insurance annual value. 1. The net yearly income derivable from a given piece ofproperty. 2. One year's rental value of

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value

property, less the costs and expenses of maintaining the property. assessed value. The value ofan asset as determined by an appraiser for tax purposes. [Cases: Taxation C=> 2510.] book value. See BOOK VALUE. cash surrender value. Insurance. The amount of money payable when an insurance policy having cash value, such as a whole-life policy, is redeemed before maturity or death. - Abbr. CSV. - Also termed sur­ render value; cash value. [Cases: Insurance C=> 1957, 2037.] cash value. 1. See fair market value. 2. See full cash value. 3. See cash surrender value. clear annual value. The net annual value of property, after payment of taxes, interest on mortgages, and other charges. clear market value. See fair market value. clear value. Tax. For purposes of an inheritance tax, whatever remains of an estate after all claims against it have been paid. [Cases: Taxation C=>3351.] commuted value (k;:,-myoo-tid). 1. In the assessment of damages, the present value of a future interest in property. 2. 'The value of future payments when dis­ counted to their present value. enterprise value. A measure of a company's market value, calculated by aggregating the value of the company's market capitalization, debt, and preferred stock, and subtracting cash and cash equivalents. exchange value. The amount of money for which property or services could be exchanged or procured if there is a ready market continually resorted to by traders - or, in the absence of such a market, the amount that could be obtained in the usual course of finding a purchaser or hirer of similar property or services. [Cases: Evidence C=> 113(20).] fair market value. (I8c) The price that a seller is willing to accept and a buyer is willing to pay on the open market and in an arm's-length transaction; the point at which supply and demand intersect. Abbr. FMV. Also termed actual value; actual cash value; actual market value; cash value; clear market value; fair and reasonable value;fair cash market value;fair cash value;fair market price;fair value;full value;just value; market value; salable value; true value. [Cases: Taxation C:::>2515.] "[AI forced sale price is not fair value though it may be used as evidence on the question of fair value. Likewise, the fair value of saleable assets is not what they would sell for in the slow process of the debtor's trade as if the debtor were continuing business unhampered. The general idea of fair value is the amount of money the debtor could raise from its property in a short period of time, but not so short as to approximate a forced sale, if the debtor operated as a reasonably prudent and diligent businessman with his interests in mind, especially a proper concern for the payment of his debts." David G. Epstein et aI., Bankruptcy § 6-18, at 307 (1993).

fair value. See fair market value.

full cash value. Market value for property tax purposes; estimated value derived by standard appraisal methods. Also termed cash value. [Cases: Taxation C=>2515.] full value. See fair market value. future value. The value, at some future time, of a present sum or a series of monetary payments, cal­ culated at a specific interest rate. going-concern value. The value of a commercial enterprise's assets or of the enterprise itself as an active business with future earning power, as opposed to the liquidation value of the business or of its assets. - GOing-concern value includes, for example, goodwill. - Also termed going value. Cf, GOODWILL.

highest proved value. In a trover action, the greatest value (as proved by the plaintiff) that the converted property reached from the time of the conversion until trial. - It is the highest amount that a plaintiff is entitled to recover. [Cases: Trover and Conversion insurable value. See INSURABLE VALUE. intrinsic value. '!he inherent value of a thing, without any special features that might alter its market value. - The intrinsic value of a silver coin, for example, is simply the value of the silver within it. just value. See fair market value. liquidation value. 1. The value of a business or of an asset when it is sold in liqUidation, as opposed to being sold in the ordinary course of business. 2. See liqUidation price under PRICE. market value. See fair market value. most-suitable-use value. See optimal-use value. net value. 1. Insurance. The excess of a policyholder payments over the yearly cost of insurance; the part of an insured's annual premium that, according to actuarial tables, the insurer must set aside to meet the insurer's obligations to the insured. - Also termed reserve. [Cases: Insurance C=>2037.] 2. The fair market value ofshares ofstock. [Cases; Corpora­ tions C=> 182.4(5),584.] new value. 1. A value that is newly given or freshly calculated. 2. The value obtained by taking a security, such as collateral, for any debt other than a preexist­ ing one. optimal-use value. Tax. The highest and best use of a thing from an economic standpoint. - If a farm would be worth more as a shopping center than as a farm, the shopping-center value will control even if the transferee (that is, a donee or heir) continues to use the property as a farm. Also termed most­ suitable-use value. [Cases: Taxation C:::>2515.] par value. See PAR VALUE. policy value. See POLICY VALUE. present value. See PRESENT VALUE.

value-added card

residual value. See salvage value.

salable value. See fair market value.

salvage value. (1917) The value of an asset after it has

become useless to the owner; the amount expected to be obtained when a fixed asset is disposed ofat the end of its useful life. - Salvage value is used, under some depreciation methods, to determine the allow­ able tax deduction for depreciation. And under the UCC, when a buyer of goods breaches or repudiates the contract of sale, the seller may, under certain cir­ cumstances, either complete the manufacture of any incomplete goods or cease the manufacture and sell the partial product for scrap or salvage value. UCC § 2-704(2). - Also termed residual value; scrap value. See DEPRECIATION. [Cases: Sales C:~3S4(6).1 scrap value. See salvage value. settlement value. The value of a claim if the claimant settles immediately as opposed to pursuing the claim further through litigation. surrender value. See cash surrender value. true value. See fair market value. use value. A value established by the utility ofan object instead of its sale or exchange value. value received. See VALUE RECEIVED. 3. Sufficient contractual consideration.- value, vb. ­ valuation, n. "Value also includes paying or securing a preexisting debt, and in this regard value is broader than common-law con­ sideration. Thus, a debtor receives value in satisfying an antecedent claim (as by paying an overdue account or an outstanding loan or by transferring property to vindicate a preexisting interest in it) or in providing collateral for a previously unsecured creditor. It makes no difference that the debtor got nothing new, in terms of property added to her estate, at the time of the transfer." David G. Epstein et aI., Bankruptcy § 6-49, at 374 (1993).

value-added card. See STORED-VALUE CARD. value-added model. See LABOR-DESERT MODEL. value-added tax. See TAX. value date. The date when the proceeds of a bill of exchange (e.g., a check) or of a foreign-exchange trans­ action (e.g., a sale ofdollars for euros) become available for use. Also termed here and there. valued policy. See INSURANCE POLICY. valued-policy law. A statute requiring insurance com­ panies to pay the full amount of the insurance to the insured in the event of a total loss, regardless of the true value ofthe property at the time ofloss. [Cases: Insurance ~"::>2171.1 value fund. See MUTUAL FUND. valuer. See APPRAISER. value received. (17c) Consideration that has been deliv­ ered. - This phrase is commonly used in a bill of exchange or promissory note to show that it was sup­ ported by consideration. [Cases: Bills and Notes C=:' 12,40,90,98.]

1692

valuta (v;:l-loo-td), n. [Italian fro Latin] Value; worth; esp., the value of a currency in relation to that of the currency of some other country. valvasor (valv-d-sor), n. [Law Latin] Hist. A princi­ pal vassal who, though not holding directly of the sovereign, held of those who did so; a vassal of the second degree or rank. Also spelled valvassor. See VAVASOR.

VA mortgage. See MORTGAGE. vandal. [fro Latin Vandalus, a member of the Germanic tribe known as Vandals] (17c) A malicious destroyer or defacer of works of art, monuments, buildings, or other property. vandalism, n. (ISc) 1. Willful or ignorant destruction of public or private property, esp. ofartistic, architectural, or literary treasures. 2. The actions or attitudes of one who maliciously or ignorantly destroys or disfigures public or private property; active hostility to anything that is venerable or beautifuL - vandalize, vb. - van­ dalistic, adj. vara (vah-rah)_ Spanish-Am. law. A measure oflength equal to about 33 inches. - Local usage varies, so that a vara may sometimes be more and sometimes less than 33 inches. In Mexican land grants, the measure is equal to 32.9927 inches. The term is often found in old land grants in states that were formed from land governed by Spain or Mexico. variable annuity. See ANNUITY. variable annuity contract. See CONTRACT. variable cost. See COST (I). variable life insurance. See LIFE INSURANCE. variable rate. See INTEREST RATE. variable-rate mortgage. See adjustable-rate mortgage under MORTGAGE. variance. (I4c) 1. A difference or disparity between two statements or documents that ought to agree; esp., in criminal procedure, a difference between the allega­ tions in a charging instrument and the proof actually introduced at trial. Also termed variation. [Cases: Indictment and Information ~"::> 171.] fatal variance. (I8c) A variance that either deprives the defendant of fair notice of the charges or exposes the defendant to the risk ofdouble jeopardy. - A fatal variance is grounds for reversing a conviction. [Cases: Indictment and Information C=:' 171.J immaterial variance. (iSc) A variance too slight to mislead or prejudice the defendant and is thus harmless error. [Cases: Indictment and Information 2. A license or official authorization to depart from a zoning law. Also termed (in sense 2) zoning variance. See HARDSHIP (4). Cf. SPECIAL EXCEPTION (2); SPE­ CIAL-USE PERMIT. [Cases: Zoning and Planning (;=' 481-549.] area variance. A variance permitting deviation from zoning requirements about construction and

1693

placement, but not from requirements about use. [Cases: Zoning and Planning (:::::>503.] use variance. A variance permitting deviation from zoning requirements about use. lCases: Zoning and Planning (:::::>481.] varrantizatio (v~-ran-ti-zay-shee-oh), n. [Law Latin] Hist. Scots law. A warranty. vas (vas), n. [Latin "surety"] A pledge, surety, bail; esp., in early law, security for a criminal defendant's appear­ ance in court.• In Roman law under the legis actio procedure, a vas was a special surety for the defendant if there was an adjournment in jure. PI. vades (vay-deez). See IN JURE (2); LEGIS ACTIO. vassal (vas-eli), n. [fro Law Latin vassallus] Hist. The grantee of a fief, feud, or fee; a feudal tenant. Cf. FREEMAN (5). arriere vassal (a-ree-air vas-dl). Hist. lhe vassal of a vassal. vassalage (vas-ell-ij), n. Hist. 1. The state ofbeing a vassal or feudatorv. Also termed vasseleria. 2. The service required o(a vassal. Also termed vassaticum; main­ rent. 3. lhe territory held by a vassal; a fief or fee. 4. Vassals collectively. 5. The dominion or authority of a feudal superior over vassals. 6. Political servility; sub­ jection. vassalli ligii (vas-~-lr lij-ee-I). [Law Latin] His!. Vassals holding immediately of the Crown. vassallo et quibus dederit (vas-el-Ioh et kwib-els dee­ ddT-it). [Law Latin] Hist. To the vassal and to whomso­ ever he shall have given it. • The phrase was included in feudal grants. "If the original grant had been destined to the vassal, 'and his heirs and assignees whomsoever.' this only bound the superior to receive the proper hei rs of the vassal and not his assignee; but if the destination bore ... [vassal] 'et quibus dederit.' this was construed as a consent on the part of the superior to alienation, and under which he was bound to receive as vassal his vassal's disponee. This dis­ tinction ... was practically abolished by the Act 20 Geo. II. c. 50, which introduced a mode by which either an heir or disponee could force an entry from the superior.' John Trayner, Trayner's Latin Maxims 622 (4th ed. 1894).

vassallo faciendo superiori quod de jure facere oportet (vas-a-Ioh fay-shee-en-doh s[y]oo-peer-ee-or-r kwod dee joor-ee fay-sa-ree d-por-tet). [Law Latin] Hist. Upon the vassal performing that to the superior which, according to law, he ought to perform. vassallus (vas-d-Ids), n. Latin] Hist. A feudal tenant. Cf. VASSUS. vassal state. Int'llaw. A state that possesses only those rights and privileges that have been granted to it by a more powerful state. vassaticum (va-sat-a-kam). [Law Latin] See VASSALAGE (2).

vasseleria (vas-a-Ieer-ee-a). [Law Latin] See VASSALAGE (1). vassus (vas-els), n. [Law Latin] Hist. A feudal tenant who held immediately of the king. Cf. VASSALLUS.

vein

vasto. See DE VASTO. vastum (vas-telm), n. Hist. WASTE. vastum forestae vel bosci (vas-telm for-es-tee vel bahs-I). Hist. Waste of a forest or wood. VAT. See value-added tax under TAX. vauderie (vaw-ddr-ee). Hist. Sorcery; witchcraft. Vaughn index. A comprehensive list of all documents that the government wants to shield from disclosure in Freedom ofInformation Act (FOrA) litigation, each document being accompanied by a statement of jus­ tification for nondisclosure.• Supported by one or more affidavits, a Vaughn index has three purposes: (1) forcing the government to scrutinize all material withheld; (2) enabling the trial court to fulfill its duty of ruling on the factual basis of each claimed FOIA exemption; and (3) enabling the adversary system to operate by giving the as much information as possible. 5 USCA § et seq. The name derives from Vaughn V. Reese, 484 F.2d 820 (D.C. Cir. 1973). [Cases: Records 62.] vavasor (vav-a-sor), n. [Law Latin] Hist. The vassal or tenant ofa baron; one who held under a baron and also had subtenants. Also spelled vavasour (vav-el-suur). Cf. VALVASOR. vavasory (vav-el-sor-ee), n. [fro Law Latin vavasoriaJ Hist. The lands held by a vavasor. VAWA. abbr. VIOLENCE AGAINST WOMEN ACT. Vc. abbr. VICE-CHA;\fCELLOR. vec. abbr. VICE-CHANCELLOR'S COURT. v.e. abbr. VENDITIONI EXPONAS. veal-money. Hist. The annual rent paid by tenants ofthe manor of Bradford, in the county of Wiltshire, in lieu of veal formerly paid in kind. vectigal (vek-tI-gal), n. Roman & civil law. 1. A tax, esp. an import or export duty, paid to the state. 2. An annual ground rent paid in kind or in money. PI. l'ec­

tigalia (vek-tel-gay-lee-d).

vectigal judiciarium (vek-tI-gal joo-dish-ee-air-ee-am),

n. A tax or fine to defray the expenses of maintaining courts ofjustice. PI. vectigalia judiciaria. vedura (vek-t[yJoor-d). Hist. Maritime law. Freight. veggie-libellaw. Slang. See AGRICULTURAL-DISPARAGE­ MENTLAW. vehicle (vee-a-bl), n. 1. An instrument oftransportation or conveyance. 2. Any conveyance used in transporting passengers or things by land, water, or air. vehicular (vee-hik-Yd-lar), adj. Of, relating to, or caused by a vehicle or vehicles. vehicular homicide. See HOMICIDE. veil-piercing. See PIERCING THE CORPORATE VEIL. vein, n. Mining law. A continuous body of mineral or mineralized rock, filling a seam or fissure in the earth's crust, within defined boundaries that clearly separate it from surrounding rock.

discovery vein. The primary vein for the purpose of locating a mining claim. [Cases: Mines and Minerals (;=e 16,30-33.] vejour (vd-zhoor), n. [Law French fr. Law Latin visores "viewers"] Hist. 1. One of several persons sent by the court to examine a place in question to help in the decision-making process. 2. A person sent to visit persons who claim they are unable to appear in court on account of illness, to see whether they are actually so sick that they cannot appear or whether they are malingering. - Also spelled veyor; veyour; vayowr; veiour; veighor. vel faciendo vel delinquendo (vel fay-shee-en-doh vel dee-ling-kwen-doh). [Law Latin] Hist. Either by doing something or by leaving something undone.• The phrase appeared in reference to what was accomplished by act or omission. vel non (vel non). [Latin "or not"] (1895) Or the absence of it (or them) . venal (vee-ndl), adj. (I7c) 1. (Of a person) capable of being bribed. 2. Ready to sell one's services or influence for money or other valuable consideration, usu. for base motives. 3. Of, relating to, or characterized by corrupt bargaining. 4. Broadly, purchasable; for sale. vend, vb. (17c) 1. To transfer to another for money or something else of value.• The term is not commonly applied to real estate, although its derivatives (vendor and vendee) are. 2. To make an object of trade, esp. by hawking or peddling. 3. To utter publicly; to say or state; to publish broadly. vendee. (16c) A purchaser, usu. of real property; a buyer. [Cases: Vendor and Purchaser (;=e 1.] vendee's lien. See LIEN. vendetta (ven-det-d), n. (1855) A private blood feud in which family members seek revenge on one or more persons outside the family (often members of another family); esp., a private war in which the nearest of kin seek revenge for the slaying of a relative. vend. ex. abbr. VENDITIONI EXPONAS. vendible, adj. Salable; fit or suitable to be sold. venditae (ven-dd-tee). [fr. Latin vendere "to sell"] Hist. A tax on things sold in markets and at public fairs. venditio (ven-dish-ee-oh). [Latin] Roman & civil law. 1. A sale; VENDITION. 2. A contract of sale.• In this sense, the term is short for emptio et venditio. See EMPTIO. 3. Broadly, any contract by which the ownership of some­ thing may be transferred for value. PI. venditiones. venditio corporis (ven-dish-ee-oh kor-p'His). A sale of a specific thing. - Also termed venditio speciei. venditio generis (ven-dish-ee-oh jen-d-ris). A sale of goods of a class or general kind. venditio nominis (ven-dish-ee-oh nom-d-nis). A sale or conveyance of a debt. venditio speciei (ven-dish-ee-oh spee-shee-I). See venditio corporis.

vendition, n. The act of selling; a sale. - Also termed venditio. venditioni exponas (ven-dish-ee-oh-m eks-poh-nds). [Latin "you are to expose for sale"] A writ of execution requiring a sale of particular goods to be made .• The writ is directed to a sheriff who has levied upon goods under a fieri facias but has reported that the goods remain unsold for lack of buyers. In some jurisdic­ tions, a venditioni exponas is issued to require a sale of property seized under an earlier writ, after the property has been condemned or passed upon by inquisition. Abbr. vend. ex.; v. [Cases: Execution (;=e217.] venditor (ven-dd-tdr), n. Hist. See VENDOR. venditor regis (ven-dd-tdr ree-jis). [Latin] Hist. The king's seller; esp., the person who sold goods and chattels that had been seized or distrained to answer a debt due to the king. venditrix (ven-dd-triks), n. Hist. A female vendor. vendor. A seller, usu. of real property. - Also termed venditor. [Cases: Vendor and Purchaser (;=e 1.] itinerant vendor. A vendor who travels from place to place selling goods. [Cases: Licenses (;=e 15(2).] vendor's lien. See LIEN. vendue (ven-d[y]oo or ven-d[y]oo). Hist. 1. A sale; esp., a sale at public auction. 2. See execution sale under SALE. vendue master. Hist. See AUCTIONEER. venereal disease. See SEXUALLY TRANSMITTED DISEASE. venery (ven-d-ree). Archaic. 1. Hunting. 2. Sexual inter­ course. Venetian patent statute. Hist. A law enacted in Venice in 1474, giving an inventor the exclusive right to make and use an invention for 10 years.• This was the first known patent law, with procedures for securing and enforcing the inventor's right to exclude others from working, using, or benefiting from the invention. venia (vee-nee-d), n. [Latin] Hist. 1. A penitent's kneeling or assuming a prostrate position on the ground. 2. A pardon. 3. The granting of a privilege. PI. veniae. venia aetatis (vee-nee-d i-tay-tis). Roman & civil law. A privilege granted by a prince or sovereign by virtue of which an underage person is entitled to legally act and be treated as ifhe or she were of full age. venial (vee-nee-dl), adj. (14c) (Of a transgression) forgiv­ able; pardonable. venire (vd-nI-ree or -neer-ee or -nIr or -neer). (1807) 1. A panel ofpersons selected for jury duty and from among whom the jurors are to be chosen. - Also termed array; jury panel;jury pool. [Cases: Jury~'60-69.] special venire. A panel of citizens summoned when there is an unexpected need for a larger pool from which to select jurors, or a panel summoned for a particular (usu. capital) case. [Cases: Jury (;=e70.] 2. VENIRE FACIAS.

1695

veracity

venire de novo. See venire facias de novo under VENIRE FACIAS.

venire facias (v;J-nI-ree [or -neer-ee or -nn or -neer] fay-shee-;Js). (ISc) A writ directing a sheriff to assemble a jury. - Often shortened to venire. - Also termed venire facias juratores (juur-;J-tor-eez). [Cases: Jury P67.] venire facias ad respondendum (ad ree-spon-den­ d;Jm). A writ requiring a sheriff to summon a person against whom an indictment for a misdemeanor has been issued.• A warrant is now more commonly used. venire facias de novo (dee or di noh-voh). (18c) A writ for summoning a jury panel anew because of some impropriety or irregularity in the original jury's return or verdict such that a judgment cannot be entered on it. • The result of a new venire is a new trial. In substance, the writ is a motion for a new trial, but when the party objects to the verdict because of a procedural error (and not an error on the merits), the form of motion was traditionally for a venire facias de novo. - Often shortened to venire de novo. venire facias tot matronas (tot m;J-troh-n;Js). A writ requiring a sheriff to summon a jury of matrons to execute a writ de ventre inspiciendo. See DE VENTRE INSPICIENDO.

veniremember (v;J-nI-ree-mem-bJr or V;J-neer-ee- or v;J-neer-). (1966) A prospective juror; a member of a jury panel. - Also termed venireman; venireperson; talesman. See TALESMAN. venit et defendit (vee-nit et di-fen-dit). [Latin] Comes and defends .• The phrase appeared in old-style defen­ sive pleadings. venit et dicit (vee-nit et dI-sit). [Latin] Comes and says .• The phrase appeared in old-style pleadings. Remnants of the phrase still occur in some American jurisdictions: Now comes the plaintiff, and respectfully says . ... vente (vawnt or vont). [French] French law. A sale; contract of sale. vente aleatoire (a-IaY-;J-twahr). A sale subject to an uncertain event. vente aremere (ah ray-may-ray). A conditional sale, in which the seller reserves the right to redeem or repur­ chase the property at the same price .• The term is used in Louisiana and in some parts of Canada. vente aux encheres (oh-zawn-shair). An auction. See AUCTION.

venter (ven-tJr), n. [Latin "womb"] 1. The womb of a wife or mother. 2. One of two or more women who are sources of the same man's offspring. "venter ... is a term nowadays considered objectionable, as it refers to the woman merely as the possessor of a birth canal." Bryan A. Garner, A Dictionary of Modem Legal Usage 910 (2d ed. 1995).

ventre inspiciendo. 1. See DE VENTRE INSPICIENDO;. 2. See venire facias tot matronas under VENIRE FACIAS.

venture. (16c) An undertaking that involves risk; esp., a speculative commercial enterprise. Cf. JOINT VENTURE.

venture capital. See CAPITAL. venturer, n. (16c) 1. One who risks something, and hopes to gain more, in a business enterprise. 2. One who par­ ticipates in an association of two or more parties in a business enterprise. See JOINT VENTURE. venue (ven-yoo). [Law French "coming"] (16c) Procedure. 1. The proper or a possible place for a lawsuit to proceed, usu. because the place has some connection either with the events that gave rise to the lawsuit or with the plain­ tiff or defendant. [Cases: Federal Courts P71; Venue P 1.5.] 2. The territory, such as a country or other political subdivision, over which a trial court has juris­ diction. Cf. JURISDICTION (1), (2). 3. Loosely, the place where a conference or meeting is being held. 4. In a pleading, the statement establishing the place for trial. [Cases: Federal Courts P94.] 5. In an affidavit, the designation of the place where it was made. "Venue must be carefully distinguished from jurisdiction. Jurisdiction deals with the power of a court to hear and dispose of a given case; in the federal system, it involves questions of a constitutional dimension concerning the basic division of judicial power among the states and between state and federal courts. Venue is of a distinctly lower level of importance; it is simply a statutory device designed to facilitate and balance the objectives of optimum convenience for parties and witnesses and effi· cient allocation of judicial resources." Jack H. Friedenthal et aI., Civil Procedure § 2.1, at 10 (2d ed. 1993). "The distinction must be clearly understood between jurisdiction, which is the power to adjudicate, and venue, which relates to the place where judicial authority may be exercised and is intended for the convenience of the litigants. It is possible for jurisdiction to exist though venue in a particular district is improper, and it is possible for a suit to be brought in the appropriate venue though it must be dismissed for lack of jurisdiction. The most important difference between venue and jurisdiction is that a party may consent to be sued in a district that otherwise would be an improper venue, and it waives its objection to venue if it fails to assert it promptly. This is in striking contrast to subject-matter jurisdiction, which cannot be conferred by the parties, if it has not been granted by Congress, whether by consent, waiver, or estoppel." Charles Alan Wright, The Law of Federal Courts § 42, at 257 (5th ed. 1994).

venue, change of. See CHANGE OF VENUE. venue facts. (1936) Facts that need to be pleaded or established in a hearing to determine whether venue is proper in a given court. [Cases: Federal Courts P 96; Venue P68.] venville (ven-vil), n. Hist. A tenure peculiar to the area of Dartmoor forest in Devonshire, whereby tenants have certain rights in the forest. veracious (v;J-ray-shJs), adj. (17c) Truthful; accurate. ­ Also termed veridical. veracity (v;J-ras-;Jt-ee), n. (17c) 1. Truthfulness . 2. Accuracy 419(2.10); Evidence (:::::>267.] verbal contract. See parol contract (1) under CONTRACT. verbal note. Diplomacy. An unsigned memorandum informally reminding an official of a pending request, an unanswered question, or the like. vertical stare decisis. See STARE DECISIS. verbal will. See nuncupative will under WILL. verba precaria (var-ba pri-kair-ee-a). [Latin] Civil law. 1. Precatory words. 2. Words oftrust; words of request used in creating a trust. verba solennia (var-ba sa-Ien-ee-a). [Latin] Hist. Solemn words; formal words. - Also termed verba solemnia (sa-Iem-nee-a). verbatim (var-bay-tam), adj. & adv. [fro Latin verbum "word"] Word for word.• Courts have repeatedly held that, in the context of the requirement that a trial record must be "verbatim," absolute word-for-word accuracy is not necessary - and insubstantial omis­ sions do not make a transcript "nonverbatim." [Cases: Military Justice 1354, 1356.] verbatim ac litteratim (var-bay-tim ak lit-a-ray-tim), adv. (var-bay-tim ak li-tar-ay-tim). [Latin] Word for word and letter for letter. - Also spelled verbatim ac literatim; verbatim et literatim. - Also termed verbatim et litteratim.

1696

verbi gratia (var-bI gray-shee-a). [Latin "for example"] Words for the sake of example. - Abbr. Y.G. verbruikleening (ver-bruuk-layn-ing), n. Roman Dutch law. A loan for use; COMMODATUM. verderer (var-dar-ar), n. [fr. French verdier "caretaker of green things"] Hist. A judicial officer who, being in charge of the king's forest, is sworn to preserve the vert (foliage) and venison, to keep the assizes, and to view, receive, and enroll attachments and presentments on matters involving trespass. - Also spelled verderor. "In all the forests there were a varying number of officers (usually four) elected in the county court, and styled Ver­ derers. Manwood says that they should be 'gentlemen of good account, ability, and living, and well learned in the laws of the forest: Their chief duty was to attend the forest courts; they served gratuitously; and they were immedi­ ately responsible to the crown. Possibly they were regarded as a check upon the Warden, as the coroner was upon the sheriff." 1 William Holdsworth, A History of English Law 96 (7th ed. 1956).

verdict. (15c) 1. A jury's finding or decision on the factual issues of a case. [Cases: Criminal Law (:::::> 870-894; Federal Civil Procedure (:::::>2191; Trial ~ 318.] 2. Loosely, in a nonjury trial, a judge's resolution of the issues of a case. [Cases: Federal Civil Procedure (:::::>2251; Trial ~387.] chance verdict. (1820) A now-illegal verdict, arrived at by hazard or lot. - Also termed gambling verdict; verdict by lot. [Cases: Criminal Law (:::::>798(2),866; Federal Civil Procedure ~ 1974.1; Trial (:::::>315.] compromise verdict. (1851) A verdict reached when jurors, to avoid a deadlock, concede some issues so that other issues will be resolved as they want. [Cases: Criminal Law ~866; Federal Civil Procedure ~ 1974.1; Trial ~315.] defective verdict. (18c) A verdict on which a judgment cannot be based because of irregularities or legal inadequacies. directed verdict. (1912) A ruling by a trial judge taking a case from the jury because the evidence will permit only one reasonable verdict. - Also termed instructed verdict. [Cases: Criminal Law ~753; Federal Civil Procedure ~2117; Trial ~ 167.] excessive verdict. (1817) A verdict resulting from the jury's passion or prejudice and thereby shocks the court's conscience. [Cases: Damages (:::::> 127.9; Federal Civil Procedure (:::::>2194.1, 2345; New Trial (:::::>77(2).] false verdict. Archaic. A verdict so contrary to the evidence and so unjust that the judge may set it aside. gambling verdict. See chance verdict. general verdict. (17c) A verdict by which the jury finds in favor ofone party or the other, as opposed to resolv­ ing specific fact questions. Cf. special verdict. [Cases: Criminal Law (:::::>881; Federal Civil Procedure (:::::> 2191; Trial (:::::>318.]

1697

veredicto

general verdict subject to a special case. Archaic. A

quotient verdict. (1867) An improper damage verdict

court's verdict rendered without regard to the jury's general verdict, given when a party does not want to put the legal question on the record but merely wants the court to decide on the basis of a written statement ofall the facts in the case, prepared for the opinion of the court by counsel on either side, according to the principles of a special verdict, whereupon the court decides the special case submitted and gives judgment accordingly. general verdict with interrogatories. (1878) A general verdict accompanied by answers to written inter­ rogatories on one or more issues of fact that bear on the verdict. [Cases: Federal Civil Procedure C:=>2211; Trial guilty verdict. (I8c) A jury's finding that a defendant is guilty of the offense charged.

that a jury arrives at by totaling what each juror would award and dividing by the number ofjurors. [Cases: Federal Civil Procedure Trial C::>31S.]

instructed verdict. See directed verdict. joint verdict. (1825) A verdict covering two or more parties to a lawsuit.

legally inconsistent verdict. (1975) A verdict in which the same element is found to exist and not to exist, as when a defendant is acquitted ofone offense and con­ victed of another, even though the offenses arise from the same set of facts and an element of the second offense requires proof that the first offense has been committed. - Also termed legal inconsistency. Cf. repugnant verdict. [Cases: Criminal Law C:=>878(4); Federal Civil Procedure Trial C:=>358.]

majority verdict. A verdict agreed to by all but one or two jury members.• In some jurisdictions, a civil verdict supported by 10 of 12 jurors is acceptable. [Cases: Federal Civil Procedure Trial 321.5.] open verdict. A verdict of a coroner's jury finding that the subject "came to his death by means to the jury unknown" or "came to his death at the hands of a person or persons to the jury unknown." • This verdict leaves open either the question whether any crime was committed or the identity of the criminal.

partial verdict. (1829) A verdict by which a jury finds a criminal defendant not guilty of some charges and guilty of other charges. perverse verdict. (1870) A jury verdict so contrary to the evidence that it justifies the granting of a new trial. [Cases: Federal Civil Procedure C:=>2338; New Trial 68.1.] privy verdict (priv-ee). Hist. A verdict given after the judge has left or adjourned the court, and the jury, having agreed, obtains leave to give its verdict pri­ vately to the judge out of court so that the jurors can be delivered from their confinement. - Such a verdict was of no force unless afterwards affirmed in open court. 'Ihis practice has been superseded by that of rendering a sealed verdict. See sealed verdict.

public verdict. (17c) A verdict delivered by the jury in open court.

repugnant verdict. (1883) A verdict that contradicts itself in that the defendant is convicted and acquitted of different crimes having identical elements .• Some­ times the inconsistency occurs in a Single verdict (repugnant verdict), and sometimes it occurs in two separate verdicts (repugnant verdicts). Both terms are used mainly in New York. Cf.legally inconsistent verdict. [Cases: Criminal Law C:=>878(4).]

responsive verdict. Civil law. A verdict that properly answers the indictment with specific findings pre­ scribed by statute, the possible findings being guilty, not guilty, and guilty of a lesser included offense.

sealed verdict. (18c) A written verdict put into a sealed envelope when the jurors have agreed on their decision but court is not in session or the jury is con­ tinuing to deliberate other counts.• Dpon delivering a sealed verdict, the jurors may separate. When court convenes again, this verdict is officially returned with the same effect as if the jury had returned it in open court before separating. [Cases: Trial C:=>324.]

special verdict. (I7c) A verdict in which the jury makes findings only on factual issues submitted to them by the judge, who then decides the legal effect of the verdict. See Fed. R. Civ. P. 49. Cf. general verdict. [Cases: Criminal Law (,'=870; Federal Civil Proce­ dure C:=>2231; Trial

split verdict. (1886) 1. A verdict in which one party prevails on some claims, while the other party prevails on others. 2. Criminal law. A verdict finding a defen­ dant guilty on one charge but not guilty on another. [Cases: Criminal LawC=878.] 3. Criminal law. A verdict of guilty for one defendant and of not guilty for a codefendant. [Cases: Criminal Law (;::::>877.]

true verdict. (16c) A verdict that is reached volun­ tarily - even if one or more jurors freely compro­ mise their views - and not as a result ofan arbitrary rule or order, whether imposed by the jurors them­ selves, the court, or a court officer. [Cases: Trial 314,315.]

verdict by lot. See chance verdict. verdict contrary to law. (18c) A verdict that the law does not authorize a jury to render because the con­ clusion drawn is not justified by the evidence. Also termed wrong verdict. Cf. JURY NULLIFICATION. [Cases: Federal Civil Procedure C:=>2338; New Trial C:=>66.] verdict subject to opinion ofcourt. (1820) A verdict that is subject to the court's determination ofa legal issue reserved to the court upon the trial, so that judgment is ultimately entered depending on the court's ruling on a point oflaw. [Cases: Judgment C=' 199(4).] wrong verdict. See verdict contrary to law. veredicto. See NON OBSTANTE VEREDICTO.

veredictum

veredictum (ver-a-dik-tam), n. Hist. A verdict; a decla­ ration of the truth of a matter in issue, submitted to a jury for trial. verge (varj), n. Hist. 1. The area within 12 miles of the place where the king held his court and within which the king's peace was enforced. - This area was commonly referred to as being in the verge. Ihe verge got its name from the staff (called a "verge") that the marshal bore. 2. The compass ofthe royal court, within which the lord steward and marshal of the king's house­ hold had special jurisdiction. Also termed (in senses 1 & 2) Court of Verge. 3. The neighborhood of White­ hall, the section ofLondon in which British government offices have traditionally been located. 4. An uncertain quantity ofland from 15 to 30 acres. 5. A stick or rod by which a person, after holding the stick and swearing fealty, is admitted as a tenant to a copyhold estate. ­ Also spelled virge. For tenant by the verge, see copy­ HOLDER. vergens ad inopiam (v 125(1 1).J seagoing vessel. A vessel that - considering its design, is normally function, purpose, and capabilities expected both to carry passengers for hire and to engage in substantial operations beyond the boundary line (set by the Coast Guard) dividing inland waters from the high seas. - Typically excluded from the def­ inition are pleasure yachts, tugs and towboats, fishing boats, and other vessels that do not carry passengers for hire. [Cases: Shipping C=c 204.j seaworthy vessel. A vessel that can withstand the ordinary stress ofthe wind, waves, and other weather that seagOing vessels might ordinarily be expected to encounter. - In some legal contexts, the question whether a vessel is seaworthy includes the question whether it is fit to carry an intended cargo properly. Under federal maritime law, a vessel's owner has the duty to proVide a crew with a seaworthy vessel. See SEAWORTHY. [Cases: Seamen Shipping 121,207.J vest, vb. (l5c) 1. To confer ownership (of property) upon a person. 2. To invest (a person) with the full title to property. 3. To give (a person) an immediate, fixed right of present or future enjoyment. 4. Hist. To put (a person) into possession of land by the ceremony of investiture. vesting. n.

vestita manus vested, adj. (18c) Having become a completed, consum­ mated right for present or future enjoyment; not con­ tingent; unconditional; absolute . [Cases: Estates in Property C=.> 1.] "[Ujnfortunately, the word 'vested' is used in two senses. Firstly, an interest may be vested In possession, when there is a right to present enjoyment, e.g. when I own and occupy Blackacre. But an interest may be vested, even where it does not carry a right to immediate possession, if it does confer a fixed right of taking possession in the future." George Whitecross Paton, A Textbook ofJurisprudence 305 (G.W. Paton & David P. Derham eds., 4th ed. 1972). "A future interest is vested if it meets two requirements: first, that there be no condition precedent to the interest's becoming a present estate other than the natural expira­ tion of those estates that are prior to it in possession; and second, that it be theoretically possible to identify who would get the right to possession if the interest should become a present estate at any time." Thomas F. Bergin & Paul G. Haskell, Preface to Estates in Land and Future Interests 66-67 (2d ed. 1984).

vested in interest. (I8c) Consummated in a way that will result in future possession and use. - Reversions, vested remainders, and any other future use or execu­ tory devise that does not depend on an uncertain period or event are all said to be vested in interest. [Cases: Wills 628-638.] vested in possession. (I8c) Consummated in a way that has resulted in present enjoyment. vested estate. See ESTATE (I). vested gift. See GIFT. vested interest. See INTEREST (2). vested legacy. See LEGACY. vested ownership. See OWNERSHIP. vested pension. See PENSION. vested remainder. See REMAINDER. vested right. See RIGHT. vested-rights doctrine. Constitutional law. The rule that the legislature cannot take away a right that has been vested by a court's judgment; specif., the principle that it is beyond the province of Congress to reopen a final judgment issued by an Article III court. - Also termed doctrine ofvested rights. [Cases: Constitutional Law (;::::> 2384,2630-2655.] vestigial words (ve-stij-ee-;ll). Statutory words and phrases that, through a succession of amendments, have been made useless or meaningless. _ Courts do not allow vestigial words to defeat the fair meaning of a statute. vestigium (ve-stij-ee-Jm). Archaic. A vestige, mark, or sign; a trace, track, or impression left by a person or a physical object. vesting order. (1873) A court order passing legal title in lieu of a legal conveyance. vestita manus (ves-tI-tJ may-nJs), n. [Latin "vested hand"] Hist. The right hand used in the ceremony of investiture.

vestita viro (ves-tHa vI-roh). [Law Latin] Hist. Clothed with a husband. "A married woman is said to be vestita viro, and so long as this coverture exists her person cannot be attached on civil diligence, unless that diligence proceeds upon a decree ad factum praestandum, for the performance of some act which she is bound to perform, and which cannot be validly performed except by herself, ex. gr., to enter the heir of her vassal, to produce or exhibit as a haver writings in her own custody, &c." John Trayner, Trayner's Latin Maxims 628 (4th ed. 1894).

vestitive fact (ves-ta-tiv). See dispositive fact (1) under FACT.

vestitus et mundus muliebris (ves-tI-tas et m;m-das myoo-lee-ee-bris). [Latin] Hist. A woman's wearing of apparel and ornaments. vestry (ves-tree). Eccles. law. 1. The place in a church where the priest's robes are kept. - Also termed sacristy. 2. An assembly of the minister, church wardens, and parishioners to conduct church business. vestry clerk. Eccles. law. An officer appointed to attend a vestry and to take minutes of the proceedings. vesture (ves-char). Hist. 1. The corn, grass, underwood, stubble, or other growth - apart from trees - that covers the land. - Also termed vestura (ves-t[y]oor-a); vestura terrae (ter-ee); vesture of land. 2. Seisin; inves­ titure. veteran. A person who has been honorably discharged from military service. Veterans Administration. See DEPARTMENT OF VETERANS AFFAIRS.

Veterans Affairs, Department of. See DEPARTMENT OF VETERANS AFFAIRS.

Veterans Appeals, U.S. Court of. See UNITED

STATES

COURT OF APPEALS FOR VETERANS CLAIMS.

Veterans Benefits Administration. A unit in the US. Department ofVeterans Affairs responsible for advising and assisting veterans and their families who apply for veterans' benefits. [Cases: Armed Services (;:::J 102.] Veterans' Employment and Training Service. A unit in the U.S. Department of Labor responsible for administering various programs relating to veterans' employment and training.• The agency protects the reemployment rights of veterans and the employment and retention rights of members of the Reserve and National Guard. Its regional administrators work with state employment-security agencies and with recipients of grants under the Job Training Partnership Act to ensure that veterans are provided the priority services required by law. - Abbr. VETS. Veterans Health Administration. A unit in the US. Department of Veterans Affairs responsible for pro­ viding hospital, nursing-home, and medical care to eligible veterans of military service. [Cases: Armed Services (;:::J 102.] veteran's loan. See LOAN. vetera statuta (vet-a-ra sta-t[y]oo-tCl), n. pl. [Law Latin "ancient statutes"] The statutes from Magna Carta

(1215) to the end of Edward II's reign (1327). - Also termed antiqua statuta (an-tI-kwCl sta-t[y]oo-tCl). Cf. NOVA STATUTA.

vetitive (vet-a-tiv), adj. Of, relating to, or having the power to veto. vetitum namium (vet-a-tClm nay-mee-am), n. [Law Latin "a prohibited taking"] Hist. See NAMIUM VETITUM. veto (vee-toh), n. [Latin "I forbid"] (17c) l. A power of one governmental branch to prohibit an action by another branch; esp., a chief executive's refusal to sign into law a bill passed by the legislature. [Cases: Statutes (;:::J25.] 2. VETO MESSAGE. PI. vetoes. - veto, vb. absolute veto. (1852) An unrestricted veto that is not subject to being overridden. item veto. See line-item veto. legislative veto. (1850) Hist. A veto allowing Congress to block a federal executive or agency action taken under congressionally delegated authority.• The Supreme Court held the legislative veto unconstitu­ tional in INS v. Chadha, 462 US. 919,103 S.Ct. 2764 (1983). See DELEGATION DOCTRINE. liberum veto (lib-ar-Clm). Hist. Formerly in Poland, the right of any single member of the diet to invalidate a measure. limited veto. See qualified veto. line-item veto. (1858) The executive's power to veto some provisions in a legislative bill without affecting other provisions .• The U.S. Supreme Court declared the presidential line-item veto unconstitutional in 1998. See Clinton v. City ofNew York, 524 U.S. 417,118 S.Ct. 2091 (1998). - Also termed item veto. [Cases: Statutes (;:::J33.] negative veto. See qualified veto. overridden veto. (1971) A veto that the legislature has superseded by again passing the vetoed act, usu. by a supermajority oflegislators .• In the federal govern­ ment, a bill vetoed by the President must receive a two-thirds majority in Congress to override the veto and enact the measure into law. [Cases: Statutes (;:::J 35.] pocket veto. (1842) A veto resulting from the President's failure to sign a bill passed within the last ten days of the congressional session. [Cases: Statutes (;:::J34.] qualified veto. (1853) A veto that is conclusive unless overridden by an extraordinary majority ofthe legis­ lature.• This is the type ofveto power that the Presi­ dent of the United States has. - Also termed limited veto; negative veto. suspensory veto (sCl-spen-sCl-ree). (1911) A veto that suspends a law until the legislature reconsiders it and then allows the law to take effect if repassed by an ordinary majority. - Also termed suspensive veto. vetoer, n. One who vetoes. - Also termed vetoist. veto message. (1830) A statement communicating the reasons for the executive's refusing to sign into law a

1701

bill passed by the legislature. - Sometimes shortened to veto.

veto power. (1883) An executive's conditional power to prevent a bill that has passed the legislature from becoming law. veto-proof majority. See MAJORITY. VETS. abbr. VETERANS' EMPLOYMENT AND TRAINING SERVICE. vetus jus (vee-t;)s jas). Roman & civil law. 1. The law ofthe Twelve Tables. See TWELVE TABLES. 2. Long-established or ancient law. 3. A law in force before the passage of a later law. vex, vb. (1Sc) L To harass, disquiet, or annoy. 2. To cause physical or emotional distress. - vexatious, adj. ­ vexation, n. vexari (vek-sair-I), vb. [Latin] To be harassed, vexed, or annoyed. vexata quaestio (vek-say-ta kwes-chee-oh). See VEXED QUESTION. vexation. (lSc) The damage that results from trickery or malice. vexatious (vek-say-sh;)s), adj. (l6c) (Of conduct) without reasonable or probable cause or excuse; harassing; annoying. vexatious delay. An insurance company's unjustifiable refusal to satisfy an insurance claim, esp. based on a mere suspicion but no hard facts that the claim is ill-founded. - Also termed vexatious refusal to pay; refusal to pay. [Cases: Insurance C=3336.] vexatious lawsuit. See VEXATIOUS SUIT. vexatious litigant. See LITIGANT. vexatious proceeding. See VEXATIOUS SUIT. vexatious refusal to pay. See VEXATIOUS DELAY. vexatious suit. (17c) A lawsuit instituted maliciously . and without good grounds, meant to create trouble and expense for the party being sued. - Also termed vexatious lawsuit; vexatious litigation; vexatious pro­ ceeding. Cf. MALICIOUS PROSECt:TION. [Cases: Action Federal Civil Procedure vexed question. (17e) 1. A question often argued about but seemingly never settled. 2. A question or point that has been decided differently by different tribunals and has therefore been left in doubt. Also termed vexata quaestio (vek-say-t~ kwes-tee-oh). v.g. abbr. VERBI GRATIA. via (vI-a), n. [Latin "way, road"] Roman & civil law. 1. A road, way, or right-of-way. via publica (vI-a pab-li-ka). [Latin] Roman & civil law. A public way or road.• The land itself belongs to the public. 2. Roman law. A type of rural servitude that gave the holder the right to walk, ride, or drive over anoth­ er's land; SERVITUS VIAE.• It was broader than and included the servitus itineris and the servitus actus; that

vicar

is, via encompassed both iter (a footpath) and actus (a driveway). 3. Civil law. The way in which legal proce­ dures are followed. via executiva (VI-~ eg-zek-ya-tI-vd). Civil law. Execu­ tory process by which the debtor's property is seized, without previous citation, for some reason specified by law, usu. because of an act or title amounting to a confession of judgment. via juris (VI-;) joor-is). [Latin] Hist. By means oflaw; by means oflegal process. via ordinaria (VI-a or-di-nair-ee-a). Civil law. The ordinary way or process by which a citation is served and all the usual forms oflaw are followed. via action is (VI-;) ak-shee-oh-nis). [Latin] Hist. By way of an action. viable (vI-a-b~I), adj. (1832) 1. Capable ofliving, esp. outside the womb . 2. Capable of inde­ pendent existence or standing . 3. Capable of succeeding . - viability (vI-d-bil-a-tee), n. viae servitus (vI-ee s;)r-va-tas). 1. See SERVITUS VIAE. 2. See VIA (2). via executiva. See VIA (3).

via facti (VI-a fak-tI), adv. [Law Latin "by way of deed"]

By force; in a forcible way. viagere rente. See RENTE VIAGERE. via juris. See VIA (3). via ordinaria. See VIA (3). via publica. See VIA (1). via regia (VI-~ ree-jee-~). [Latin "the king's highway"] Hist. The highway or common road called the "king's highway" because the king authorized and protected it. viatical settlement. See SETTLEMENT (3), viatication (vI-at-~-kay-sh;)n). [fr. Latin viaticus "relating to a road or journey"] The purchase of a terminally or chronically ill policyholder's life insurance in exchange for a lump-sum payment equal to a percentage of the policy's full value. See viatical settlement under SETTLE­ MENT. viator (vI-ay-t66.2, 66.5(2).] vicontiel (vI-kon-tee-;:ll), adj. (l7c) 1. Of or relating to a viscount. 2. Of or relating to a sheriff. Also spelled vicountiel. Also termed vicecomital. vicontiel rent. Rist. Rent that a viscount or sheriff pays for the use of a royal farm. vicontiels (vl-kon-tee-alz). Rist. 1. Money payable by a viscount or sheriff to the Crown. 2. Vicontiel rents. vicontiel writ. See WRIT. victim, n. (I5c) A person harmed by a crime, tort, or other wrong. - victimize, vb. victimization, n. victim allocution. See ALLOCUTION. victim-impact statement. (1981) A statement read into the record during sentencing to inform the judge or jury of the financial, physical, and psychological impact of the crime on the victim and the victim's family. [Cases: Sentencing and Punishment C=> 361, 1763.] victimless crime. See CRIME. victim-precipitated homicide. See HOMICIDE. victim-related adjustment. An increase in punishment . available under federal sentencing gUidelines when the defendant knew or should have known that the victim bore a particular characteristic - e.g., the victim was unusually vulnerable (because ofage or condition) - or was otherwise particularly susceptible to the criminal conduct. See USSG §§ 3Al.l, 1.2. [Cases: Sentencing and Punishment Victims of Child Abuse Laws. An organization of persons who claim to have been wrongly accused of sexually abusing children. Abbr. VOCAL. Cf. FALSE MEMORY SYNDROME FOUNDATION. victualer (vit-al-ar). Rist. 1. A person authorized by law to keep a house of entertainment for the public; a publican. [Cases: Public Amusement and Entertain­ ment C-~ 16.] 2. A person who serves food or drink prepared for consumption on the premises. Also spelled victualler. [Cases: Food C=>0.5, 3.J victual rent (vit-[a]I). Scots law. A rent paid in grain or its monetary equivalent. victus (vik-ti3s). Civil law. Sustenance; support; a means ofliving.

vidame (vee-dam), [FrenchJ Hist. In French feudal law, an officer who represented the bishop.• Over time, these officers erected their offices into fiefs and became feudal nobles, such as the vidame of Chartres, Rheims, etc. They continued to take their titles from the seat of the bishop whom they represented, even though the lands held by virtue oftheir fiefs might be situated else­ where. vide (vI-dee also vee-day). [Latin] See.• This is a citation signal still seen in some texts, esp. in the abbreviated fOfm q.v. (quod vide "which see"). Vide ante or vide supra refers to a previous passage in a text; vide post or vide infra refers to a later passage. videlicet (vi-del-;:l-set or -sit). [Latin] (ISc) To wit; that is to say; namely; SCILICET.• The term is used primarily to point out, particularize, or make more specific what has been previously stated in general (or occas. obscure) language. One common function is to state the time, place, or manner when that is the essence ofthe matter at issue. - Abbr, viz. See VIZ. Video Electronics Standards Association. A nonprofit organization that promotes and develops industry-wide standards for computers to ensure interoperability, and encourage innovation and market growth. Abbr. VESA. video piracy. See PIRACY (3). Video Privacy Protection Act. A federal statute that bars video stores from disclosing to third parties the names of customers' rentals. 18 USCA § 2710. vidimus (vid-a-mi3s), n. [Latin "we have seen"] 1. An inspection of documents, etc. 2. An abstract, syllabus, or summary. 3. An attested copy of a document. 4. INSPEXIMUS. Vidi scivi et audivi (vl-dI SI-VI et aw-dl-vI). Hist. I saw, knew, and heard.• This was formerly an essential part of the notary's docket attached to the end of an instru­ ment of seisin, by which the notary claimed to have been personally present on the ground when seisin was given and thus to have known the facts to be true by having heard the words spoken and seen the acts done, vidua regis (vij-oo-i3 ree-jis), n. [Latin]!. The widow of the king. 2. The widow of a tenant in capite.• In sense 2, she was so called because she was not allowed to marry a second time without the king's permission. She obtained her dower from the king, who was her patron and defender. viduitatis professio (va-d[y]oo-a-tay-tis pra-fes[hJ­ ee-oh), n. [Latin] Rist. A woman's solemn act of pro­ fessing that she will live as a single, chaste woman. viduity (vi-dfy]oo-a-tee). Archaic. Widowhood. vie (vee). [French] Life .• The term occurs in such Law French phrases as cestui que vie and pur autre vie. vi et armis (VI et ahr-mis). [Latin) Hist. By or with force and arms, See trespass vi et armis under TRESPASS. "The words 'with force and arms,' anciently 'vi et armis,' were, by the common law, necessary in indictments for

offences which amount to an actual disturbance of the peace, or consist, in any way, of acts of violence; but it seems to be the better opinion, that they were never neces­ sary where the offence consisted of a cheat, or non-fea­ zance, or a mere consequential injury." 1 Joseph Chitty, A Practical Treatise on the Criminal Law 240 (2d ed. 1826).

"vi et armis . .. was a necessary part of the allegation, in medieval pleading, that a trespass had been committed with force and therefore was a matter for the King's Court because it involved a breach of the peace. In England, the term survived as a formal requirement of pleading until 1852." Bryan A. Garner, A Dictionary of Modem Legal Usage 916 (2d ed. 1995).

view, n. 1. The common-law right of prospect - that is, an outlook from the windows of one's house. 2. An urban servitude that prohibits the obstruction of the outlook from a person's house. [Cases: Adjoining Land­ owners 10; Easements 011, 19,45.] 3. A jury's trip to inspect a place or thing relevant to the case it is considering; the act or proceeding by which a tribunal goes to observe an object that cannot be produced in court because it is immovable or inconvenient to remove.• The appropriate procedures are typically regulated by state statute. At common law, and today in many civil cases, the trial judge's presence is not required. The common practice has been for the jury to be escorted by "showers" who are commissioned for this purpose. Parties and counsel are generally permit­ ted to attend, although this is a matter typically within the trial judge's discretion. Cf. VIEW OF AN INQUEST. Criminal Law Federal Civil Procedure 4. In a real action, a defendant's Trial observation of the thing at issue to ascertain its identity and other circumstances surrounding it. Cf. DEMAND OF VIEW.

viewer. (15c) A person, usu. one of several, appointed by a court to investigate certain matters or to examine a particular locality (such as the proposed site of a new road) and to report to the court. view of an inquest. (1837) A jury's inspection of a place or property to which an inquiry or inquest refers. Cf. VIEW

(3).

view of frankpledge. Rist. The twice-yearly gathering and inspection of every freeman within the district who was more than 12 years old to determine whether each one had taken the oath of allegiance and had found nine freeman pledges for his peaceable demeanor. See FRANKPLEDGE.

viewpoint discrimination. See DISCRIMINATION. viewpoint-neutral. See NEUTRAL. vif-gage (veef-gayj or vif-). [Law French] See vadium vivum under VADIUM. vigil. Eccles. law. The day before any solemn feast. vigilance. (16c) Watchfulness; precaution; a proper degree of activity and promptness in pursuing one's rights, in guarding them from infraction, and in dis­ covering opportunities for enforcing one's lawful claims and demands.

vigilant, adj. (15c) Watchful and cautious; on the alert; attentive to discover and avoid danger. vigilante (vij-a-Ian-tee). (1856) A person who seeks to avenge a crime by taking the law into his or her own hands. vigilantism (vij-a-lan-tiz-dm). The act of a citizen who takes the law into his or her own hands byapprehend­ criminals. ing and punishing viis et modis (VI-is et moh-dis). [Latin] Eccles. law. By all ways and means .• In ecclesiastical courts, service of a decree or citation viis et modis is equivalent to substi­ tuted service in temporal courts. It requires posting of a notice where a person is likely to be found. This type of service is contrasted with personal service. vi laka amovenda. See DE VI LAICA AMOVENDA. vill (viI). Rist. 1. A part into which a hundred or wapen­ take was divided. 2. A town or village. village. 1. Traditionally, a modest assemblage of houses and buildings for dwellings and businesses. 2. In some states, a municipal corporation with a smaller popu­ Also termed (in sense 2) town; lation than a city. borough. [Cases: Municipal Corporations villanis regis subtractis reducendis (vi-Iay-nis ree-jis sdb-trak-tis ree-d[y]oo-sen-dis), n. [Latin "for return­ ing the king's villeins who have been removed"] Hist. A writ that lay for the bringing back of the king's bondmen who had been carried away by others out of his manors, where they belonged. villanum servitium (vi-lay-ndm sdr-vish-ee-48.]2. The infliction of physical injury, or

1706

Violence Against Women Act

the creation of a reasonable fear that physical injury or harm will be inflicted, by a parent or a member or former member of a child's household, against a child or against another member ofthe household. - Also termed domestic abuse;family violence. 3. Archaic. Insurrection or unlawful force fomented from within a country. Violence Against Women Act. A federal statute that established a federal civil-rights action for victims of gender-motivated violence, without the need for a criminal charge. 42 USCA § 13981. - In 2000, the Supreme Court invalidated the statute, holding that neither the Commerce Clause nor the Enforcement Clause of the 14th Amendment authorized Congress to enact the civil-remedy provision of this Act. United States v. Morrison, 120 S.Ct. 1740 (2000). - Abbr. VAWA. [Cases: Civil Rights (;=: 1035.] violent, ad). (14c) 1. Of, relating to, or characterized by strong physical force . 2. Resulting from extreme or intense force . 3. Vehemently or passionately threatening . violent crime. See CRIME.

violent death. See DEATH.

violent felony. See violent offense under OFFENSE (1).

violent offense. See OFFENSE (1).

violent profits. Scots law. Penal damages imposed against

a tenant who refused to surrender rented property to the landlord. vir (veer), n. [Latin] 1. An adult male; a man. 2. A husband. _ In the Latin phrases and maxims that once pervaded English law, vir generally means "husband," as in the expression vir et uxor (husband and wife). See ET VIR. Cf. UXOR. vires (vI-reez), n. (18c) 1. Natural powers; forces. 2. Granted powers, esp. when limited. See ULTRA VIRES; INTRA VIRES. vir et uxor (veer et 165.J visitation order_ (1944) Family law. 1. An order estab­ lishing the visiting times for a noncustodial parent with his or her child. [Cases: Child Custody C;>525.] 2. An order establishing the visiting times for a child and a person with a significant relationship to the child.• Such an order may allow for visitation between (1) a grandparent and a grandchild, (2) a child and another relative, (3) a child and a stepparent, or (4) occasionally,

visitation right

a child and the child's psychological parent. - Also termed access order. visitation right. (1935) 1. Family law. A noncustodial parent's or grandparent's court-ordered privilege of spending time with a child or grandchild who is living with another person, usu. the custodial parent. • The noncustodial parent with visitation rights may some­ times be a parent from whose custody the child has been removed because of abuse or neglect. [Cases: Child Custody C=> 175-231,282.] 2. Int'llaw. A bel­ ligerent nation's right to search a neutral vessel to find out whether it is carrying contraband or is otherwise engaged in nonneutral service .• Ifthe searched vessel is doing either of these things, the searchers may seize the contraband and carry out an appropriate punish­ ment. - Also termed (in both senses) right of visita­

tion. visitatorial (viz-;l-t;l-tor-ee-;ll), adj. Of or relating to on-site inspection or supervision. Also termed visi­

torial. "To eleemosynary corporations, a visitatorial power is attached as a necessary incident .... [PJrivate and particu· lar corporations, founded and endowed by individuals for charitable purposes, are subject to the private government of those who are the effiCient patrons and founder. If there be no visitor appointed by the founder, the law appoi nts the founder himself, and his heirs, to be the VIsitors. The visitatorial power arises from the property which the founder assigned to support the charity; and as he is the author of the charity, the laws give him and his heirs a visi­ tatorial power; that is, an authority to inspect the actions and regulate the behaVior of the members that partake of the charity. This power is judicial and supreme, but not legislative." 2 James Kent, Commentaries on American Law *300-01 (George Comstock ed., 11th ed. 1866).

visitatorial power. See POWER (3). visiting judge. See JUDGE. visitor. 1. A person who goes or comes to a particular person or place. business visitor. See BUSI-:-.!ESS VISITOR. 2. A person appointed to visit, inspect, inquire into, and correct corporate irregularities. [Cases: Corpora­ tions visitorial. See VISITATORIAL. visitorial power. See visitatorial power under POWER (3).

visitor of manners. A regarder's office in the forest. vis laica (vis laY-d-b), n. [Latin "lay force"] Hist. An armed force used in holding possession of a church. vis licita (vis liS-d-td), n. [Latin] Lawful force. vis major (vis may-j;lr), n. [Latin "a superior force"] (I7c) 1. A greater or superior force; an irresistible or over­ whelming force of nature; FORCE MAJEURE. Cf. ACT OF GOD. 2. A loss resulting immediately from a natural cause without human intervention and that could not have been prevented by the exercise of prudence, dili­ gence, and care. - Also termed act of nature; act of

providence; superior force; irresistible force; vis divina.

1708

[Cases: Carriers C=> 119; Negligence . tion, n. - vitiator, n.

vitilitigate (vit-d-lit-a-gayt), vb. [fro Latin vitilitigare "to quarrel disgracefully"] Archaic. To litigate merely from quarrelsome motives; to carryon a lawsuit in an unduly contentious, wrangling way. - vitilitigation, n. vit­ ilitigious (vit-d-li-tij-47.] 4. Having merely nominal consideration . - voluntariness, n. voluntary abandonment. See ABANDONMENT (3). voluntary appearance. See APPEARANCE. voluntary arbitration. See ARBITRATION. voluntary assignment. See general assignment under ASSIGNMENT

(2).

voluntary association. See ASSOCIATION (3). voluntary assumption of the risk. See ASSUMPTION

OF

THE RISK.

voluntary bankruptcy. See BANKRUPTCY. voluntary bar. See BAR. voluntary bond. See BOND (3). voluntary commitment. See COMMITMENT. voluntary confession. See CONFESSION. voluntary consent. See CONSENT (1).

voluntary contract. See gratuitous contract (2) under

CONTRACT.

voluntary conveyance. See CONVEYANCE. voluntary courtesy. (17c) An act ofkindness performed by one person toward another, from the free will of the doer, without any previous request or promise of reward made by the person who is the object of the act. • No promise of remuneration arises from such an act. voluntary deposit. See DEPOSIT (5).

voluntary disclosure of offense. See DISCLOSURE (1).

voluntary discontinuance. See NONSUIT (1).

voluntary dismissal. See DISMISSAL (1).

voluntary dissolution. See DISSOLUTION.

voluntary escape. See ESCAPE (3).

voluntary euthanasia. See EUTHANASIA.

voluntary exposure to unnecessary danger. (1883) An

intentional act that, from the standpoint of a reason­ able person, gives rise to an undue risk ofharm.• The phrase suggests that the actor was consciously willing to take the risk. [Cases: Insurance (:::>2592.] voluntary ignorance. (1836) Willful obliviousness; an unknowing or unaware state resulting from the neglect to take reasonable steps to acquire important knowl­ edge. [Cases: Insurance C::)2965; Negligence 212.]

voluntary improvement. See IMPROVEMENT.

voluntary intoxication. See INTOXICATION.

voluntary jurisdiction. See JURISDICTION.

voluntary lien. See LIEN.

voluntary manslaughter. See MANSLAUGHTER.

voluntary oath. See nonjudicial oath (1) under OATIL

voluntary petition. See PETITION. voluntary pilot. See PILOT. voluntary pooling. See POOLING. voluntary-registry law. See ADOPTION-REGISTRY STAT­ UTE.

voluntary respite. See RESPITE. voluntary sale. See SALE. voluntary search. See SEARCH. voluntary settlement. See SETTLEMENT (1). voluntary statement. See STATEMENT. voluntary stranding. See STRANDING. voluntary surety. See SURETY. voluntary suretyship. See SURETYSHIP. voluntary trust. See TRUST. voluntary unitization. See UNITIZATION. voluntary waste. See WASTE (1). voluntas (vd-Ian-tas), n. [Latin] Hist. 1. Volition, purpose, or intention; a feeling or impulse that prompts the com­ mission of an act. 2. A will by which a testator plans to dispose of an estate; WILL. voluntas testatoris (v.)-lan-tas tes-t.;J-tor-is). [Latin]llist. 'The intention of a testator. voluntatis non necessitatis (vol-;:m-tay-tis non n.;J-ses-i­ tay-tis). [Latin] Hist. A matter of choice, not of neces­ Sity. volunteer. (16c) l. A voluntary actor or agent in a trans­ action; esp., a person who, without an employer's assent and without any justification from legitimate personal interest, helps an employee in the performance of the employer's business. 2. The grantee in a voluntary conveyance; a person to whom a conveyance is made without any valuable consideration. See voluntary con­ veyance under CONVEYANCE. 3. Military law. A person who enters military service voluntarily and is then subject to the same rules as other soldiers. Cf. DRAFT (2). 4. A rchaic. See OFFICIOUS INTERMEDDLER. Volunteers in Service to America. See VISTA. vote, n. (15c) 1. The expression of one's preference or opinion in a meeting or election by ballot, show of hands, or other type of communication .

absentee vote. See absentee voting under VOTING.

bullet vote. A vote cast for fewer nominees than are

being elected .• A bullet vote slightly enhances the ballot's effect on the outcome. Also termed bullet ballot. casting vote. A deciding vote cast by the chair ofa delib­ erative assembly when the votes are tied .• The U.S. Constitution gives the Vice President the casting vote in the Senate. U.S. Const. art. I, § 3. [Cases: United States C::> 18.] "One is, that to secure at all times the possibility of a definite resolution of the body, it is necessary that the

vote

1712 President should have only a casting vote. And to take the senator of any State from his seat as senator, to place him in that of President of the Senate, would be to exchange, in regard to the State from which he came, a constant for a contingent vote." The Federalist No. 68 (Alexander Hamilton).

effective vote. A vote that counts toward a winning candidate, to the extent needed to win .• A vote that goes to a winning candidate is "effective" to the extent needed to win, and "excess" beyond that point. For example, ifa candidate needs IOO votes and gets ISO, then 50 votes are excess votes and each vote is two­ thirds effective and one-third excess. Cf. excess vote; wasted vote. excess vote. A vote that counts toward a winning can­ didate, beyond the extent needed to win. Cf. effective vote. exhausted vote. A preferential vote on which all the ranked candidates have already been elected or elimi­ nated. - Also termed exhausted ballot. illegal vote. A vote that does not count because it was cast by someone not entitled to vote or for an ineli­ gible choice, or in a form or manner that does not comply with the applicable rules. See spoiled ballot under BALLOT (2). [Cases: Elections (::::>227.] legal vote. A vote cast in the proper form and manner for an eligible choice by someone entitled to vote. paired vote. An abstention resulting from a pairing. See PAIR. preferential vote. A vote that ranks the choices in order of preference.• A preferential vote may be transfer­ able or weighted. - Also termed preferential ballot. Cf. Single transferable vote; weighted vote. [Cases: Elec­ tions (::::>237.] single transferable vote. A preferential vote that will migrate or "transfer" away from a candidate whom it will no longer help.• Under transferable voting, a candidate wins if his or her first-choice votes reach the number needed to win, or the "threshold." If no candidate reaches the threshold, the least-preferred candidate is dropped and his or her votes transfer to the next-preferred candidate on each ballot. If a candidate reaches the threshold with an excess, that excess still transfers - after being discounted by the non-excess fraction needed to reach the thresh­ old among the surviving candidates. Each transfer preserves each vote as long as at least one candidate that the voter ranked survives. The redistribution continues until enough candidates reach the thresh­ old or the number of surviving candidates equals the number of representatives still to be elected. See DROOP QUOTA. Also termed STY; transferable vote; choice voting. [Cases: Elections . transferable vote. See single transferable vote. unintelligible vote. An otherwise legal vote cast in a form from which the tellers cannot ascertain the voter's intent. • On a secret ballot, no voter may properly claim an unintelligible vote for the purpose

of explaining it since the vote may have been cast by another voter who cannot contradict the claimant without sacrificing his or her right to secrecy. vote ofno confidence. See NO-CO:-lFIDENCE VOTE. wasted vote. A vote that does not count toward any winning candidate. Cf. eflective vote; excess vote. weighted vote. A nontransferable preferential vote whose strength is allocated among the ranked pref­ erences either by the voter or according to a series of fixed weights. [Cases: Elections (::=>237.] 2. The total number of votes cast in an election . [Cases: Elections L] 3. The majority or supermajority needed for a certain question . [Cases: Elections (:::>237.] majority vote. See MAJORITY (2). plurality vote. See PLURALITY. tie vote. An equally divided vote .• A tie vote is not a deadlock unless the assembly is obliged to act, for example when electing an officer to an office that will otherwise be vacant. Cf. DEADLOCK. [Cases: Elections unanimous vote. A vote in which every voter concurs. See UNANIMOUS (2). winner-take-all vote. An election in which the majority (or sometimes the plurality) elects all the representa­ tives. Cf. UNIT RULE; PROPORTIONAL REPRESENTA­ TION; proportional voting under VOTING. [Cases: Elections (::::>237.] 4. The act of voting, usu. by a deliberative assembly . [Cases: States (::::>35.] vote, vb. counted vote. Parliamentary law. A vote taken in a way that individually counts each voter.• Examples of a counted vote are a show of hands, a standing vote, a roll-call vote, or a written ballot. See DIVISION (1). division vote. See DIVISIO:-l (I). lobby vote. A counted vote taken by each voter passing through a lobby between tellers. Also termed teller vote. rising vote. 1. See standing vote. 2. A vote of apprecia­ tion demonstrated by the members standing, some­ times silently but usu. with applause. - Also termed rising vote oj thanks. roll-call vote. A counted vote by roll call, in which the secretary calls each member's name, in answer to which the member casts aloud his or her vote.• The U.S. Constitution provides that "the Yeas and Nays of the Members of either House on any question shall, at the Desire of one fifth of those Present, be entered on the Journal." U.S. Canst. art. I, § 5, cl. 3. Also termed vote by yeas and nays; yeas and nays. See roll call under CALL (1). [Cases: United States C:=> 18.] serpentine vote. A standing vote in which the voters count off and sit down, with the count progressing up

voting

1713

one row and down the next until each member on the side of the question being counted has voted. standing vote. A counted vote taken by each voter standing up when his or her side of the question is counted. Also termed rising vote; standing division. teller vote. See lobby vote.

viva voce vote. See voice vote.

voice vote. A vote taken by the voters collectively

answering aloud, usu. with "aye" or "nay," when their side ofthe question is called. - Also termed viva voce vote. [Cases: Elections C=>214.] vote by show of hands. A vote taken by the voters raising their hands when their side of the question is counted. - Often shortened to show of hands. vote by yeas and nays. See roll-call vote. vote dilution. See DILUTION (3). vote immediately. See CLOSE DEBATE. vote of no confidence. See NO-CONFIDENCE VOTE. voter. (I6c) 1. A person who engages in the act ofvoting. 2. A person who has the qualifications necessary for voting. - Also termed (in sense 2) legal voter; qualified voter. [Cases: Elections C':"59-87.] registered voter. A person who is qualified to vote and whose name is recorded in the voting district where he or she resides. [Cases: Elections (,.~~95-119.] voting. (16c) The casting of votes for the purpose of deciding an issue. absentee voting. (1932) 1. Participation in an election by a qualified voter who is unable to appear at the polls on election day. 2. ]he practice of allowing voters to participate in this way. - Also termed (in sense 1) absentee ballot; absentee vote. See absentee ballot under BALLOT (2). Cf. early voting. [Cases: Elec­ tions (;:::~ 126(6),216.1.] choice voting. See single transferable vote under VOTE (1).

class voting. (1941) A method of shareholder voting in which different classes of shares vote separately on fundamental corporate changes that affect the rights and privileges of that class. Also termed voting by class; voting by voting group. [Cases: Corporations C=>197.J cumulative voting. (1884) A system in which each voter may cast more than one vote for the same candidate. • Cumulative voting helps a minority elect at least one representative. It is common in shareholder elec­ tions. [Cases: Corporations C=>200, 283(2).] early voting. (1984) Voting before the day of an election, esp. during a period designated for that purpose.• Unlike with absentee voting, taking advantage of early voting does not require the voter to swear to the inability to come to the polling place on election day. ct absentee voting. [Cases: Elections C=>205.l.j first-past-the-post voting. See plurality voting.

Hare-Ware voting. See instant-runoff voting. instant-runoff voting. A system of preferential voting that mimics a runoff election by using each voter's ranked preferences instead of a second round of voting. See runoff election under ELECTION (3). Also termed Hare-Ware voting; West Australian plan. Abbr. IRV. [Cases: Elections C=>237.J limited voting. A system in which each voter must cast fewer votes than the number of representatives being elected. low-total voting. A system of weighted preferential voting that adds up the ranked preferences - "1" for a first choice, "2" for a second choice, and so forth so that the most-preferred candidate wins by having the lowest totaL See preferential voting; weighted vote under VOTE (1). [Cases: Elections C=>237.J majority voting. A system in which each voter may cast one vote per representative being elected, and a simple majority is required for election. [Cases: Corporations C:.>283(2).] noncumulative voting. (1956) A corporate voting system in which a shareholder is limited in board elections to voting no more than the number of shares that he or she owns for a single candidate.• The result is that a majority shareholder will elect the entire board of directors. - Also termed straight voting. [Cases: Corporations (::.-:>283(2).] plurality voting. Election by plurality. See PLURAL­ ITY. - Also termed first-past-the-post voting. preferential voting. A system in which each voter ranks the choices in order of preference.• A preferential vote may be transferable or weighted. - Also termed rank-order voting. See Single transferable vote under VOTE (1); weighted vote under VOTE (1). [Cases: Elec­ tions C=>237.] proportional voting. A system of transferable prefer­ ential voting in a multi-representative election. See preferential vote under VOTE (1); single transferable vote under VOTE (1). - Also termed proportional rep­ resentation. [Cases: Elections C=>237.] rank-order voting. See preferential voting. straight voting. See noncumulative voting. two-round voting. A system in which the voting occurs in two rounds, with the first round determining the candidate's eligibility for the second round.• 'The second round may be a runoff between the top two candidates from the first round, an election by plural­ ity among candidates who won their political parties' nominations in the first round, or an election by plu­ rality among the candidates from the first round who reached a certain threshold. See runoff election under ELECTION (3). [Cases: Elections (;=>237.] voting by class. See class voting. voting by voting group. See class voting. voting by yeas and nays. See roll-call vote under VOTE (4).

1714

voting agreement

voting agreement. See POOLING AGREEMENT. voting by class. See class voting under VOTING. voting by voting gronp. See class voting under VOTING. voting group. (1972) 1. A classification of sharehold­ ers by the type of stock held for voting on corporate matters. 2. Collectively, the shareholders falling within such a classification. voting member. See MEMBER. Voting Rights Act. The federal law that guarantees a citizen's right to vote, without discrimination based on race, color, or previous condition of servitude. 42 VSCA §§ 1971-1974. [Cases: Elections 0'7.: 12.) voting security. See voting stock under STOCK. voting stock. See STOCK. voting-stock rights. A stockholder's right to vote stock in the affairs of the company. - Typically, holders of common stock have one vote for each share. Holders of preferred stock usu. have the right to vote when pre­ ferred dividends are in default for a specified period. [Cases: Corporations voting trust. See TRUST. voting-trust certificate. A certificate issued by a voting trustee to the beneficial holders of shares held by the voting trust. _ A voting-trust certificate may be as readily transferable as the underlying shares; it carries with it all the incidents of ownership except the power to vote. See voting trust under TRUST. [Cases: Corpora­ tions G'::;) 198.1(3).] votum (voh-tam), n. [Latin] Hist. A vow; a promise. See dies votorum under DIES. votum captandae mortis alienae (voh-tam kap-tan­ dee mor-tis ay-Iee-ee-nee or al-ee-). [Latin) Hist. An earnest desire for another's death. - An heir could not sell his or her rights to an ancestor's estate because such a transaction would likely induce votum captandae

mortis alienae. vouch, vb. (14c) 1. To answer for (another); to personally assure 2337.J noncovered wages. Wages on which a person is not required to pay SOCial-security taxes. [Cases: Internal Revenue C=·4374.] real wages. Wages representing the true purchasing power ofthe dollar, derived by dividing a price index into money wages. wage, vb. 1. To engage in (a war, etc.). 2. Archaic. To give security for (a performance, etc.). Cf. GAGE. Wage and Hour Division. The division of the Employ­ ment Standards Administration in the U.S. Depart­ ment ofLabor responsible for enforcing the Fair Labor Standards Act, the Family and Medical Leave Act, the Employee Polygraph Protection Act, and other work­ place-related statutes and regulations. - Abbr. WHD. See EMPLOYMENT STANDARDS ADMINISTRATION. wage-and-hour law. A law (such as the federal Fair Labor Standards Act) governing minimum wages and maximum working hours for employees. [Cases: Labor and Employment ~.J2215.] wage-and-prke controls. A system ofgovernment-man­ dated maximum prices that can be charged for differ­ ent goods and services or paid to various workers in different jobs. wage-and-price freeze. See FREEZE. wage assignment. 1. See attachment of wages under ATTACHMENT (1). 2. INCOME-WITHHOLDING ORDER. 3. ASSIGNMENT (2). wage-assignment order. See INCOME-WITHHOLDING ORDER.

wage-earner's plan. See CHAPTER 13. wager, n. (l4c) 1. Money or other consideration risked on an uncertain event; a bet or gamble. 2. A promise to pay money or other consideration on the occurrence of an uncertain event. 3. See wagering contract under CONTRACT. [Cases: Gaming 1.] - wager, vb. ­ wagerer, n. wagering contract. See CONTRACT. wager of battle. See TRIAL BY COMBAT. wager oflaw. Hist. A method of proof in which a person defends against a claim by swearing that the claim is groundless, and by enlisting others (compurgators) to

1717

waiver

swear to the defendant's credibility. Also termed gager del ley (gay-jdr del lay); vadiatio legis (vad-ee-ay­ shee-oh lee-jis). See COM PURGATION. wager policy. See INSURANCE POLICY. wages. See WAGE. wage-withholding. See attachment of wages under ATTACHMENT (1).

wage-withholding order. See

INCOME-WITHHOLDING

ORDER.

Wagner Act. See NATIONAl. LABOR RELATIONS ACT. wagonage (wag-d-nij). 1. Transportation by a wagon. 2. The fee for carriage by wagon. 3. A group of wagons. waif, n. (l4c) 1. An abandoned article whose owner is unknown, esp. something stolen and thrown away by the thief in flight, usu. through fear of apprehension. • At cornman law, if a waif, whether stolen or merely abandoned, was seized before the owner reclaimed it, the title vested in the Crown. The owner was thus punished for leaVing the property or for failing to pursue the thief and attempting to recover the property. Today, however, the general rule is that a waif passes to the state in trust for the true owner, who may regain it by proving ownership. "Waifs, bona waviata, are goods stolen, and waived or thrown away by the thief in his flight. for fear of being apprehended. These are given to the king by the law, as a punishment upon the owner, for not himself pursuing the felon, and taking away his goods from him. And therefore if the party robbed do his diligence immediately to follow and apprehend the thief (which is called making fresh suit) or do convict him afterwards, or procure evidence to convict him, he shall have his goods again." 1 William Blackstone, Commentaries on the Laws of England 286-87 (1765).

2. Hist. A homeless person, esp. a woman or child; a social outcast. See WAIVERY. "(In the thirteenth century] a woman, though she cannot be outlawed, can be 'waived: declared a 'waif,' and 'waiver' seems to have all the effects of outlawry." 1 Frederick Pollock & Frederic William Maitland, History of English Law Before the Time of Edward I 482 (2d ed. 1898).

wainable (way-nd-bdl), adj. Archaic. (Ofland) plowable; tillable. wainage (way-nii), n. Hist. 1. lhe plow, team, and other implements used by a person (esp. a villein) to cultivate the soil; instruments of husbandry. 2. Cultivated land or the profits from it. Also termed wainagium; way­ nagium (way-nay-jee-219.] waiver ofnotice. Parliamentary law. 'The waiver that occurs when a defective notice for a meeting is issued but every member attends and participates without objecting to the defect. 2. The instrument by which a person relinquishes or abandons a legal right or advantage . jury waiver. A form signed by a criminal defendant who relinquishes the right to have the trial conducted before a jury. [Cases: Jury (;::::>29(6).] lien waiver. A written and signed waiver of a sub­ contractor's mechanic's lien rights, usu. submitted to enable the owner or general contractor to receive a draw on a construction loan. [Cases: Mechanics' Liens (;::::>208.] waiver by election of remedies. (1873) A defense arising when a plaintiff has sought two inconsistent remedies and by a decisive act chooses one of them, thereby waiving the other. [Cases: Election of Remedies 1.] waiver hearing. See transfer hearing under HEARING. waiver of claims and defenses. (1975) 1. The intentional relinquishment by a maker, drawer, or other obligor under a contract of the right to assert against the assignee any claims or defenses the obligor has against the assignor. [Cases: Assignments (;::::> 103; Bills and Notes e=---'314; Secured Transactions 185.] 2. lhe contractual clause providing for such a waiver. waiver of counsel. (1870) A criminal defendant's inten­ tional relinquishment of the right to legal representa­ tion.• To be valid, a waiver of counsel must be made voluntarily, knowingly, and intelligently. [Cases: Criminal Law (;::::> 1750-1757.] waiver of defenses. Real estate. A document by which a mortgagor acknowledges that the mortgage is good and valid for the full amount of the mortgage note .• This document ensures that the mortgagor has no defenses Also termed estoppel certificate; to the mortgage. no-setoff certificate; declaration of no defenses. [Cases: Mortgages C=>415.] waiver of exemption. (1846) 1. A debtor's voluntary relinquishment of the right to an exemption from a creditor's levy or sale ofany part of the debtor's personal

1718 i

property by judicial process. [Cases: Exemptions 89-99; Homestead C=> 169-176.] 2. The contractual clause expressly providing for such a waiver. [Cases: Exemptions C=>92; Homestead (;::::> 170.J waiver ofimmunity. (1883) The act ofgiving up the right against self-incrimination and proceeding to testify. See IMMUNITY (3). [Cases: Witnesses C=>305.] waiver of notice. See WAIVER (I). waiver-of-premium clause. Insurance. A provision for a waiver of premium payments after the insured has been disabled for a specified length of time, such as six months. [Cases: Insurance2035.1 waiver of protest. A relinquishment by a party to a nego­ tiable instrument of the formality of protest in case of dishonor. See PROTEST (2). [Cases: Bills and Notes 422.] waiver ofservice. A defendant's voluntary submission to the jurisdiction made by signing an acknowledgment of receipt of the petition and stating that he or she waives all further service. [Cases: Process C=>67.] waiver of tort. (1815) The election to sue in quasi-con­ tract to recover the defendant's unjust benefit, instead of suing in tort to recover damages. See implied-in-law contract under CONTRACT. [Cases: Action C=>28.] "A person upon whom a tort has been committed and who brings an action for the benefits rect'ived by the tortfea­ sor is sometimes said to 'waive the tort.'" Restatement of Restitution § 525 (1937). "'Waiver of tort' is a misnomer. A party only waives a tort in the sense that he elects to sue in quasi·contract to recover the defendant's unjust benefit rather than to sue in tort to recover damages; he has a choice of alternative remedies. But the tort is not extinguished. Indeed it is said that it is a sine qua non of both remedies that he should establish that a tort has been committed." Lord Goff of Chieveley & Gareth Jones, The Law of Restitution 605 (3d ed. 1986).

waivery. Hist. The act of putting a woman outside the protection ofthe law.• At common law, a woman could not be "outlawed" because she was not considered "in law" that is, she could not undertake legal proceed­ ings on her own. By Bracton's day, the effect of outlaw- ­ ing a woman was achieved by "waiving" her the act being called waivery. wakening. Scots law. The revival ofan action in which no steps had taken for at least a year and a day. walk, vb. (1958) Slang. 1. To be acquitted . 2. To escape any type of real punishment <despite the seriousness of the crime, Selvidge paid only $750: he walked>. walker, n. Hist. A forester who inspects an assigned area ofland. Walker Process claim. Patents. A counterclaim in an infringement suit, seeking a declaratory judgment that the patent is invalid because its owner defrauded the Patent Office .• The claim is based on antitrust law, alleging that the patentee wrongfully tried to monopo­ lize a market. Walker Process Equip., Inc. v. Food Mach.

wanton

1719 & Chem., 382 U.S. 172,86 S.Ct. 347 (1965). - Also termed Walker Process defense. walkout. 1. STRIKE (1). 2. The act of leaving a work assignment, meeting, or other event as a show of protest. [Cases: Labor Relations C:::>290.] wall. An erection of stone, brick, or other material raised to varying heights, esp. inside or surrounding a building, for privacy, security, or enclosure. ancient wall. A party wall that has stood for at least 20 years, thus giving each party an easement right to refuse to allow the other party to remove or substan­ tially change the walL party wall. A wall that divides two adjoining, sepa­ rately owned properties and that is shared by the two property owners as tenants in common. Also termed common wall. [Cases: Party Walls C:::: 1-10.]

lhe last recorded exchange in wampum was in New York in 1701. Wands test. Patents. A judicial test of "undue experi­ mentation" for determining if a patent application's specification teaches one skilled in the art how to make and work the claimed invention. In re Wands, 858 F.2d 731 (Fed. Cir. 1988).• The test takes account of eight factors: (1) how much experimentation would be needed, (2) how much guidance is given, (3) whether there is a working example, (4) the nature of the inven­ tion, (5) the state ofthe prior art, (6) the level of skill of those in the art, (7) how predictable or unpredictable the art is, and (8) the breadth of the claims. The factors (often called Wands factors) are illustrative rather than mandatory. See UNDUE EXPERIMENTATION. [Cases: Patents C::::99.] wanlass (wahn-lds). Rist. An ancient form of tenure requiring the tenant to drive deer to a stand so that the lord can take a shot. - Also spelled wanlace. wantage (wahnt-ij), n. A deficiency of something; specif., a vessel's deficiency of not being full, due to leakage. wanted person. A person sought by a law-enforcement agency because the person has escaped from custody or an arrest warrant has been issued for the person's arrest. want of amicable demand. Louisiana law. A defensive pleading by a defendant who seeks to avoid, delay, or defeat the plaintiff's petition .• A defendant may (1) refuse to participate in the suit (a declinatory excep­ tion), (2) seek to delay the litigation in the suit (a dilatory exception), or (3) seek to dismiss or defeat the suit (a peremptory exception). See declinatory excep­ tion, dilatory exception, peremptory exception under

"There appears to be no precise legal definition of the term 'party wall.' Four possible meanings are as follows: (a) Tenancy in common: the two adjoining owners are tenants in common of the wall. (b) Divided: the wall is divided lon­ gitudinally into two strips, one belonging to each of the neighbouring owners. (c) Divided with easements: the wall is divided as in (b), but each half is subject to an easement of support in favour of the owner of the other half. (d) Own­ ership subject to easement: the wall belongs entirely to one of the adjoining owners, but is subject to an easement or right in the other to have it maintained as a dividing wall." Robert E. Megarry & M.P. Thompson, A Manual of the Law of Real Property 303-04 (6th ed. 1993).

wallia (wahl-ee-,,), n. [Law Latin] Hist. A wall (such as a mound or bank) erected in marshy areas for protection against the sea; a seawall. Walsh Act. A statute, originally enacted in 1926, giving federal courts the power to subpoena and compel the return, testimony, and (if requested) production of doc­ uments or other items of U.S. citizens or residents who are abroad. - The subpoena is available for criminal proceedings, including grand-jury proceedings. 28 USCA § 1783. [Cases: Grand Jury \.~36.2; Witnesses

EXCEPTION (1). i I

. C=)6.]

Walsh-Healey Act. A federal law, enacted in 1936, stipu­ lating that government contractors must: (1) pay their workers no less than the prevailing minimum wage; (2) observe the eight-hour day and 40-hour workweek (with time-and-a-halffor work exceeding those hours); (3) employ no convict labor and no females under 18 or males under 16 years of age; and (4) maintain sanitary working conditions. 41 USCA §§ 35 et seq. Also termed Public Contracts Act; Walsh-Healey Public Contracts Act. wampum (wom-p"m), n. Hist. Indian money consisting of shells, beads, or animal pelts. _ In 1637, it became the first medium of exchange for the New England colonies by order of the General Court of Massachu­ setts, because England had not provided the colonies with a standard of exchange. The Court ordered that "wampampege should passe at 6 a penny for any sum under 12d." Wampum was used as the medium of exchange, esp. for small transactions, until 1652, when the General Court ordered the first metallic currency.

want of consideration. (18c) The lack of consideration for a contract. See CONSIDERATION (1). Cf. FAILURE OF CONSIDERATION. [Cases: Contracts C::::54(l), 84; Sales want of jurisdiction. A court's lack of power to act in a particular way or to give certain kinds of relief. - A court may have no power to act at all, may lack author­ ity over a person or the subject matter of a lawsuit, or may have no power to act until the prerequisites for its jurisdiction have been satisfied. - Also termed lack oj jurisdiction. See JURISDICTION. [Cases: Courts C::::39, 40; Federal CourtsC=>30.] want of prosecution. (17c) Failure of a litigant to pursue the case . - Also termed lack ofprosecution; no progress. - Abbr. w.o.p. [Cases: Federal Civil Procedure C-~ 1758; Pretrial Pro­ cedure (;:::::') 581.]

I

want of repair. (17c) A defective condition, such as a condition on a highway making it unsafe for ordinary travel. [Cases: Automobiles C::::252; Municipal Corpo­ rations (:::)757(]).] wanton (wahn-t"n), adj. (14c) Unreasonably or mali­ ciously risking harm while being utterly indifferent

wanton and reckless misconduct

to the consequences. - In criminal law, wanton usu. connotes malice (in the criminal-law sense), while reckless does not. Cf. RECKLESS; WILLFUL. [Cases: Criminal Law (;::J23; Negligence (>-::>275.] "Wanton differs from reckless both as to the actual state of mind and as to the degree of culpability. One who is acting recklessly is fully aware of the unreasonable risk he is creating, but may be trying and hoping to avoid any harm. One acting wantonly may be creating no greater risk of harm. but he is not trying to avoid it and is indifferent to whether harm results or not. Wanton conduct has properly been characterized as 'vicious' and rates extreme in the degree of culpability. The two are not mutually exclusive. Wanton conduct is reckless plus, so to speak." Rollin M. Perkins & Ronald N. Boyce, Criminal Law 879-80 (3d ed. 1982).

wanton and reckless misconduct. See wanton miscon­ duct under MISCOKDUCT. wanton misconduct. See MISCONDUCT. wanton negligence. See gross negligence under NEGLI­ GENCE.

wantonness, rI. (14c) Conduct indicating that the actor is aware of the risks but indifferent to the results. ­ Wantonness usu. suggests a greater degree of culpa­ bility than recklessness, and it often connotes malice in criminal-law contexts. Cf. RECKLESSNESS. [Cases: Criminal Law (::::::> 20, 23; Damages (;::J87(l), 91.5(1); Negligence wanton, adj. wapentake (wahp-.:m-tayk or wap-), n. [fro Saxon waepen "weapons" + tac "touch"] Hist. 1. In some English counties, a division corresponding to the hundred or ward in other counties. See HUNDRED. 2. The court within such a division. 3. A bailiff who works in such a court. war. 1. Hostile conflict by means of armed forces, carried on between nations, states, or rulers, or sometimes between parties within the same nation or state; a period of such conflict . - A state of war may also exist without armed conflict; for example, the treaty formally ending the World War II state of war between the United States and Japan was Signed seven years after the fighting ended in 1945. [Cases: War and National Emergency (;::J 1.] civil war. An internal armed conflict between people of the same nation; esp. (usu. cap.), the war from 1861 to l865, resulting from the Confederate states' attempted secession from the Union. imperfect war. A war limited in terms of places, persons, and things. mixed war. A war between a nation and private indi­ viduals. perfect war. A war involving an entire nation against another. private war. A war between private persons. public war. A war between two nations under authOrity of their respective governments. solemn war. A war formally declared esp. by public declaration by one country against another.

1720 !

war ofaggression. A war that the attacking nation ini­ tiates for reasons other than self-defense. - This type of war is considered a crime against international peace under customary international law. 2. A dispute or competition between adversaries . 3. A struggle to solve a pervasive problem 2.] War Powers Clause. See WAR CLAUSE. war-powers resolution. (1954) A resolution passed by Congress in 1973 (over the President's veto) restricting the President's authority to involve the United States

1722

in foreign hostilities without congressional approval, unless the United States or one of its territories is attacked. 50 USCA §§ 1541-1548. [Cases: War and National Emergency warrandice (wahr-;:ln-dis or -dIS). Scots law. An obli­ gation to indemnify the grantee or buyer of land if another person establishes a superior title and takes possession. personal warrandice. An obligation to indemnify that binds the grantor and the grantor's heirs. real warrandice. An obligation by which certain lands are made over as security for lands conveyed to the grantee and will be transferred to the grantee ifhe or she is evicted from the conveyed lands by a third party. warrant, n. (l4c) 1. A writ directing or authorizing someone to do an act, esp. one directing a law enforcer to make an arrest, a search, or a seizure. administrative warrant. (1951) A warrant issued by a judge at the request of an administrative agency. • This type of warrant is sought to conduct an administrative search. See administrative search under SEARCH. - Also termed administrative search warrant. [Cases: Searches and Seizures anticipatory search warrant. See SEARCH WARRANT. arrest warrant. (1894) A warrant, issued only on probable cause, directing a law-enforcement officer to arrest and bring a person to court. - Also termed warrant of arrest. [Cases: Criminal Law C=>215­ 220.] bench warrant. (17c) A writ issued directly by a judge to a law-enforcement officer, esp, for the arrest of a person who has been held in contempt, has been indicted, has disobeyed a subpoena, or has failed to appear for a hearing or trial. • A bench warrant is often issued for the arrest of a child-support obligor who is found in contempt for not having paid the support obligation. [Cases: Criminal Law C=,}263.] blanket search warrant. See SEARCH WARRANT, border warrant. A writ of arrest or other warrant con­ cerning debts owed, issued on one side of a national border for execution on the other side; esp., such a warrant issued on either side of the border between England and Scotland. commitment warrant. See warrant ofcommitment. death warrant. (I8c) A warrant authorizing a warden or other prison official to carry out a death sentence .• A death warrant typically sets the time and place for a prisoner's execution. [Cases: Sentencing and Punish­ ment (;::> 1795.] distress warrant. (I8c) 1. A warrant authorizing a court officer to distrain property. See DISTRESS. 2. A writ allowing an officer to seize a tenant's goods for failing to pay rent due to the landlord. [Cases: Landlord and Tenant (;::>270(6).]

1723

warrant

escape warrant. (l8c) 1. A warrant directing a peace officer to rearrest an escaped prisoner. 2. Hist. A warrant granted to retake a prisoner who had escaped from a royal prison after being committed there .• The warrant was obtained on affidavit from the judge of the court in which the action had been brought, and was directed to all sheriffs throughout England, commanding them to retake and commit the prisoner to the nearest jail. extradition warrant. (1S76) A warrant for the return of a fugitive from one jurisdiction to another. Cf. rendi­ tion warrant. [Cases: Extradition and Detainers 12,36.]

fugitive warrant. (1900) A warrant authorizing law­ enforcement officers to take into custody a person who has fled from one state to another to avoid pros­ ecution or punishment. general warrant. (16c) 1. Hist. A warrant issued by the English Secretary of State for the arrest of the author, printer, or publisher of a seditious libel, without naming the persons to be arrested.• General warrants were banned by Parliament in 1766. "A practice had obtained in the secretaries office ever since the restoration, grounded on some clauses in the acts for regulating the press, of issuing general warrants to take up (without naming any person in particular) the authors, printers and publishers of such obscene or seditious libels, as were particularly specified in the warrant. When those acts expired in 1694, the same practice was inadvertently continued, in every reign and under every administration, except the four last years of queen Anne, down to the year 1763: when such a warrant being issued to apprehend the authors, printers and publishers of a certain seditious libel, its validity was disputed; and the warrant was adjudged by the whole court of king's bench to be void, in the case of Money v. Leach. Trin. 5 Ceo. III. FR. After which the issuing of such general warrants was declared illegal by a vote of the house of commons." 4 William Blackstone, Commentar· ies on the Laws of England 288 n.i (1769).

2. A warrant giving a law-enforcement officer broad authority to search and seize unspecified places or persons; a search or arrest warrant that lacks a suf­ ficiently particularized description of the person or thing to be seized or the place to be searched .• General warrants are unconstitutional because they fail to meet the Fourth Amendment's specificity requirements. "But though there are precedents of general warrants to search all suspected places for stolen goods, these are not at common law legal, because it would be extremely dangerous to leave it to the discretion of a common officer to arrest what person, or search what houses he thinks fit. And in the great case of Money v. Leach, it was declared by Lord Mansfield, that a warrant to search for, and secure the person and papers of the author, printer and publisher of a libel, is not only illegal in itself, but is so improper on the face of it, that it will afford no justification to an officer acting under its sanction. And by two resolutions of the House of Commons such general warrants were declared to be invalid." 1 Joseph Chitty, A Practical Treatise on the Criminal Law66 (2d ed. 1826).

John Doe warrant. (1900) A warrant for the arrest of a person whose name is unknown.• A John Doe warrant may be issued, for example, for a person

I

known by Sight but not by name. This type of warrant is permitted in a few states, but not in federal practice. justice's warrant. See peace warrant. landlord's warrant. (1824) A type of distress warrant from a landlord to seize the tenant's goods, to sell them at public sale, and to compel the tenant to pay rent or observe some other lease stipulation. See DISTRAIN; DISTRESS.

no-knock search warrant. See SEARCH WARRANT. outstanding warrant. (1899) An unexecuted arrest warrant. peace warrant. (18c) A warrant issued by a justice of the peace for the arrest of a specified person. - Also termed justice's warrant. possessory warrant. (1850) A process, similar to a search warrant, used under certain circumstances by a plaintiff to search for and recover property wrong­ fully taken or held by another. preliminary warrant. (1859) A warrant to bring a person to court for a preliminary hearing on probable cause. probation-violation warrant. See violation warrant. rendition warrant. (1881) A warrant requesting the extradition of a fugitive from one jurisdiction to another. Cf. extradition warrant. [Cases: Extradition and Detainers C=:> 16,36.] search warrant. See SEARCH WARRANT. surreptitious-entry warrant. (1985) A warrant autho­ rizing a law officer to enter and observe an ongoing criminal operation (such as an illegal drug lab). tax warrant. (lSc) An official process issued for col­ lecting unpaid taxes and under which property may be seized and sold. valid warrant. A warrant that is regular in form and is issued by a court, body, or official having both the authority to issue the warrant for the purpose stated and jurisdiction over the person named, all the requi­ site proceedings for its proper issuance having taken 101.] place. [Cases: Searches and Seizures violation warrant. A warrant issued for the arrest of a convict who has violated the terms of proba­ tion, parole, or supervised release. Also termed (narrowly) probation-violation warrant. [Cases: Pardon and Parole C=:>Sl; Sentencing and Punish­ ment C::;,20l2.] warrant ofarrest. See arrest warrant. warrant of commitment. A warrant committing a person to custody. -- Also termed commitment warrant. warrant upon indictment or information. (1903) An arrest warrant issued at the request of the prosecutor for a defendant named in an indictment or informa­ tion. Fed. R. Crim. P. 9.

warrant 2. A document conferring authority, esp. to payor receive money. deposit warrant. A warehouse receipt used as security for aloan. dock warrant. See DOCK RECEIPT. interest warrant. 1. An order by a corporation direct­ ing a bank to pay the interest due on a note, bond, or other debt to a corporate creditor. 2. A document by which a creditor, usu. a company, asks an insurer to pay all the interest due on the insurer's notes, bonds, or other debts held by the creditor. municipal warrant. An order to draw money from a municipality's treasury for the payment ofthe munic­ ipality's expenses or debts. [Cases: Municipal Corpo­ rations 895.] tax-anticipation warrant. A warrant that is issued to raise public money and that is payable out of tax receipts when collected. treasury warrant. An order in the form of a check on which government disbursements are paid. [Cases: United States 87.] 3. An order by which a drawer authorizes someone to pay a particular sum ofmoney to another. [Cases: Bills and Notes 1.] county warrant. A warrant drawn by a county official, directing the county treasurer to pay a sum of money out of county funds to bearer, to a named individual, or to the named individual's order. [Cases: Counties 163.] 4. Securities. An instrument granting the holder a long­ term (usu. a five- to ten-year) option to buy shares at a fixed price. - It is commonly attached to preferred Also termed stock warrant; sub­ stocks Of bonds. scription warrant. [Cases: Corporations 72.] warrant, vb. (14) 1. To guarantee the security of (realty or personalty, or a person) . [Cases: Cov­ enants 45,67.] 3. To promise or guarantee <warrant payment>. "Even today lawyers use the verb 'to warrant' meaning to promise without necessarily indicating that the promise is a warranty." P.S. Atiyah, An Introduction to the Law of Contract 145 n.1 (3d ed. 1981).

4. To justify . 5. To authorize . warrant arrest. See lawful arrest under ARREST. Warrant Clause. (1962) The clause ofthe Fourth Amend­ ment to the U.S. Constitution requiring that warrants be issued only on probable cause. [Cases: Arrest 63.1; Searches and Seizures (~23, 24.] warrant creditor. See CREDITOR. warranted arrest. See ARREST. warranted search. See SEARCH.

1724

warrantee (wor-;:>n-tee or wahr-). A person to whom a warranty is given; esp., a person who receives a written warranty. - The term also sometimes applies to the beneficiary of an implied warranty. warrantia chartae. See DE WARRANTIA CHARTAE. warrantia custodiae (w;:>-ran-shee-.:l k.:l-stoh-dee-ee), n. [Law Latin] LUst. A writ for a purchaser ofland held in knight's service against the seller (and heirs), who had warranted that the land was free of wardship when a wardship was later claimed. warrantia diei. See DE WARRANTIA DIEL warrantizare (wor-.:ln-t.:l-zair-ee), vb. [Law Latin] Hist. To warrant by covenant (in a deed of conveyance) Also to defend the grantee's title and possession. spelled warantizare. warrantless arrest. See ARREST. warrantless search. See SEARCH.

warrant of arrest. See arrest warrant under WARRANT

(1).

warrant of attorney. 1. POWER OF ATTORNEY (1). 2. Archaic. Written authority given by a client to a lawyer to appear in court and to confess judgment in favor of a specified party. - It usu. instructed the attorney not to bring any action, seek a writ of error, or file a bill in equity that might delay the judgment. The warrant was typically given as security for an obligation on which judgment was authorized. Cf. CONFESSION OF JUDGMENT; COGNOVIT. [Cases: Federal Civil Procedure 2396; Judgment 43.1 "A warrant of attorney was not required to be under seal, though it generally was so. In order to guard against any imposition in procuring debtors to execute warrants of attorney or cognovits in ignorance of the effect of such instruments, it is provided that a warrant of attorney to confess judgment in any personal action, or cognovit actionem, given by any person, shall not be of any force, unless there is present some attorney of one of the superior courts on behalf of such person, expressly named by him and attending at his request, to inform him of the nature and effect of such warrant or cognovit, before the same is executed ...." Joshua Williams, Principles of the Law of Personal PFoperty 125 (11th ed, 1881).

warrant of commitment. See WARRANT (1). warrant of confession. See CONFESSION OF JUDGMENT. warrant officer. 1. OFFICER (2). 2. SERGEANT-AT-ARMS (4).

warrantor (wor-;m-tor or -t97.]

warranty ofauthorship. Copyright. An author's con­ tractual warranty that the work is an original work by that author. [Cases: Copyrights and Intellectual Property C:=-49.] warranty offitness. See implied warranty offitness for a particular purpose. warranty ofmerchantability. See implied warranty of _ merchantability. warranty oftitle. (18c) A warranty that the seller or assignor of property has title to that property, that the transfer is rightful, and that there are no liens or other encumbrances beyond those that the buyer or assignee is aware of at the time of contracting. - This warranty arises automatically whenever anyone sells goods. Also termed warranty ofactual title. [Cases: Covenants C:=-38-48, 62-67; Sales written warranty. (1807) A warranty made in writing; specif., any written affirmation or promise by a supplier of a consumer product to a buyer (for purposes other than resale), forming the basis of the bargain and providing that the material or workman­ ship is free of defects or will be repaired or replaced free of charge if the product fails to meet the required specifications. 15 USCA § 2301. [Cases: Sales C:=­ 260.]

waste

1727

air travel. Cf. MONTREAL AGREEMENT. Treaties

Y2K warranty. See Y2K WARRANTY. 3. Insurance. A pledge or stipulation by the insured that the facts relating to the person insured, the thing insured, or the risk insured are as stated. [Cases: Insur­ ance C::::;;2967, 3036.] affirmative warranty. A warranty - express or implied that facts are as stated at the beginning of the policy period.• An affirmative warranty is usu. a condition precedent to the policy taking effect. [Cases: Insurance C::::;;2967.] executory warranty. A warranty that arises when an insured undertakes to perform some executory stipulation, such as a promise that certain acts will be done or that certain facts will continue to exist. [Cases: Insurance (;:::::c 3036.] promissory warranty. A warranty that facts will continue to be as stated throughout the policy period, such that a failure of the warranty provides the insurer Also with a defense to a claim under the poHcy. termed continuing warranty. [Cases: Insurance 3036.] warranty clause. 1. A contractual clause containing a warranty. 2. Oil & gas. A provision in an oil-and­ gas lease by which the lessor guarantees that title is without defect and agrees to defend it. - If the warranty is breached, the lessor may be held Hable to the lessee to the extent that the lessor has received payments under the lease. Presence of a warranty in an oil-and-gas lease may also cause after-acquired interests to pass from the lessor to the lessee by application of estoppel by deed. [Cases: Estoppel (;:::::c,23; Mines and Minerals (;:::::c 73.1(5).] warranty deed. See DEED. warren (wor-;m orwahr-,m). 1. A place for the preserva­ tion of certain wildlife (such as pheasants, partridges, or rabbits). 2. A privilege to keep wildlife or game in a warren. 3. The area to which the privilege extends. free warren. A warren privilege giving the grantee the sole right to kill the wildlife to the extent of the grant­ ee,s warren area. - Also termed libera warrena.

Carriers

~J 307;

"Under the [Warsaw] Convention ... air carriers are abso­ lutely liable up to a preset monetary ceiling for any aCCident in which a passenger suffers bodily injury or death, as long as the accident took place on board the aircraft or in the process of any of the operations of embarking or disembarking. The Convention limits the liability of the carrier for each passenger to the sum of 125,000 francs, unless the carrier and passenger by special contract agree to a higher limit of liability, or unless it can be established that the carrier has been guilty of 'willful misconduct.' The Convention contains a two-year time limitation for bringing suit, and also absolves the carrier from liability upon a showing of due care on its part." 8A Am. Jur. 2d Aviation § 149, at 160~61 (1997).

"Free warren is a ... franchise, erected for preservation or custody ... of beasts and fowls of warren; wh ich being ferae naturae, everyone had a right to kill as he could; but upon the introduction of the forest laws ... these animals being looked upon as royal game and the sole property of our savage monarchs, this franchise of free warren was invented to protect them; by giving the grantee a sole and exclusive power of killing such game ... on condition of his preventing other persons. A man therefore that has the franchise of warren is in reality no more than a royal gamekeeper; but no man, not even a lord of a manor, could by common law justify sporting on another's soil, or even on his own, unless he had the liberty of free warren." 2 William Blackstone, Commentaries on the Laws of England 38-39 (1766).

warship. Int'llaw. A ship commissioned by a nation's military, operating with a military command and crew and displaying the nation's flag or other external marks indicating its country of origin. _ Under international maritime laws, warships are not subject to many of the safety and environmental regulations that apply to shipping vessels and passenger ships. warth. See WARDPENNY. warwit. See WARDWIT. war zone. Int'llaw. A designated area, on land or at sea, within which the rights of neutral countries are not respected by belligerent countries. [Cases: War and National Emergency wash, n. 1. A situation in which two effects offset each other.• For example, if an event produces gross income and also a deduction in the same amount so that taxable income is unchanged, the event creates a wash. 2. The shallow part of a river or the arm of a sea; the sand, rocks, and gravel washed down by a mountain stream and deposited on levelland near the mouth of a canyon. wash sale. See SALE. wash transaction. See wash sale under SALE. waste, n. (ISc) 1. Permanent harm to real property com­ mitted by a tenant (for life or for years) to the prejudice of the heir, the reversioner, or the remainderman. - In the law of mortgages, any of the follOWing acts by the mortgagor may constitute waste: (1) physical damage, whether intentional or negligent, (2) failure to maintain and repair, except for repair of casualty damage or damage caused by third-party acts, (3) failure to pay property taxes or governmental assessments secured by a lien having priority over the mortgage, so that the payments become delinquent, (4) the material failure to comply with mortgage covenants concerning physical care, maintenance, construction, demolition, or casualty insurance, or (5) keeping the rents to which the mortgagee has the right of possession. - Also termed devastation; vastum. [Cases: Waste 1.J

war-risk insurance. See INSURANCE. Warsaw Convention. Int'llaw. A treaty (to which the United States is a party) negotiated in Warsaw, Poland, in 1929, consisting of uniform rules governing claims made for personal injuries arising out of international

''The old action of waste was a mixed action, being founded in part on the statute of Gloucester (A.D. 1278), which provided that 'he which shall be attainted of waste shall lose the thing wasted, and moreover shall recompense thrice as much as the waste shall be taxed at.' The action was to recover the land in which waste had been done and the treble damages. The statute of Gloucester was

i

waste book imported into this country, but many variant statutes now regulate the subject." Edwin E. Bryant, The Law of Pleading Under the Codes of Civil Procedure 13 (2d ed. 1899).

active waste. See commissive waste.

affirmative waste. See commissive waste.

ameliorating waste (d-meel-Yd-ray-ting). (1927) A

lessee's unauthorized change to the physical charac­ ter of a lessor's property - technically constituting waste, but in fact resulting in improvement of the property.• Generally, equity will not enjoin such waste. Also termed ameliorative waste. commissive waste (k99.] surface water. 1. Water lying on the surface of the earth but not forming part of a watercourse or lake. • Surface water most commonly derives from rain, springs, or melting snow. [Cases: Waters and Water Courses C=~ 115.] 2. See diffused surface water. surplus water. 1. Water running off irrigated ground; water not consumed by the irrigation process. 2. See excess water. territorial waters. The waters under a state's or nation's jurisdiction, including both inland waters and sur­ rounding sea (traditionally within three miles of the coastline). Also termed territorial sea; marine belt; maritime belt. tidewater. See TIDEWATER. wastewater. 1. Water that escapes from the canals, ditches, or other receptacles of the lawful claimant; water that is not used by the appropriator and is

watered stock

permitted to run off the appropriator's property. 2. Water that is left over, esp. after a chemical or manu­ facturing process. water bayley (bay-lee). Rist. An officer (mentioned in the colony laws of New Plymouth in A.D. 1671) who primarily collects dues for fish taken out of the colony's waters. waterboarding. A form of torture in which water is poured over the face of a supine, immobilized victim whose head is pulled back so that the victim cannot avoid inhaling water, and thus experiences the sensa­ tion of drowning.• In some variations, fabric or plastic may be draped over the victim's face or the victim may be gagged before the water is poured. See TORTURE. watercourse. (16c) A body of water, usu. of natural origin, flowing in a reasonably definite channel with bed and banks .• The term includes not iust rivers and creeks, but also springs, lakes, and ma;shes in which such flowing streams originate or through which they flow. - Also termed waterway. [Cases: Waters and Water Courses C:::>38.] "Once water joins a watercourse it becomes subject to state control; in appropriation states it becomes available for appropriation to private uses according to state law .... [Aj watercourse could be defined to include not only rivers and lakes, but every tiny brook flowing into them, all the gullies through which water flows to the brooks, the snowpack and rainfall that feed them, and the evaporat· ing or transpiring water in the process of forming clouds. But we need not require scientists to trace water to such remote sources because it would be beyond the ability of governments to regulate these sources. Legal definitions are intended to define a point beyond which a state does not regulate water use. Usually that point is when water is not in a 'natural stream'." David H. Getches, Water Law in a Nutshelll06~107 (3d ed. 1997).

ancient watercourse. A watercourse in a channel that has existed from time immemorial. artificial watercourse. A man-made watercourse, usu. to be used only temporarily.• If the watercourse is of a permanent character and has been maintained for a sufficient length of time, it may be considered a natural watercourse to which riparian rights can attach. [Cases: Waters and Water Courses e:-~ 168.] "An artificial waterway or stream may. under some cir­ cumstances, have the characteristics and incidents of a natural watercourse. In determining the question, three things seem generally to be taken into conSideration by the courts: (1) whether the way or stream is temporary or permanent: (2) the circumstances under which it was created; and (3) the mode in which it has been used and enjoyed." 78 Am. Jur. 2d Waters § 196, at 644 (1975).

natural watercourse. A watercourse with its origin in the forces of nature.• A natural watercourse does not include surface water, which often flows inter­ mittently and in an indefinite channel. In addition, a natural stream is distingUished from an artificial ditch or canal, which is typically not the subject of riparian rights. See RIPARIAN RIGHTS; WATER. [Cases: Waters and Water Courses ~)38.] water district. See DISTRICT. watered stock. See STOCK.

waterfront

waterfront, n. Land or land with buildings fronting a body of water. watergage, n. 1. A seawalL 2. An instrument used to measure the height ofwater. watergavel, n. Hist. A fee paid for a benefit (such as fishing) obtained from a body of water. watermark. 1. A mark indicating the highest or lowest pOint to which water rises or falls. high-water mark. 1. 1he shoreline of a sea reached by the water at high tide .• The high-water mark is usu. computed as a mean or average high tide and not as the extreme height of the water. 2. In a freshwater lake created by a dam in an unnaVigable stream, the highest point on the shore to which the dam can raise the water in ordinary circumstances. 3. In a river not subject to tides, the line that the river impresses on the soil by covering it long enough to deprive it of agricul­ tural value. - Also termed high-water line. low-water mark. 1. The shoreline of a sea marking the edge of the water at the lowest point of the ordinary ebb tide. 2. In a river, the point to which the water recedes at its lowest stage. 2. The transparent design or symbol seen when paper is held up to the light, usu. to indicate the genuineness of the document or the document's manufacturer. water ordeal. See ordeal by water under ORDEAL. waterpower. 1. The force obtained by converting water into energy. 2. The riparian owner's right consisting of the fall in the stream as it passes over or through the riparian owner's land; the difference of the level between the surface where the stream first touches one's land and the surface where the water leaves the land. [Cases: Waters and Water Courses water right. (often pl.) (18c) The right to use water from a natural stream or from an artificial canal for irri­ gation, power, domestic use, and the like; RIPARIAN RIGHT. Also termed aquatic right. [Cases: Navigable Waters Waters and Water Courses C=>40-47, 141, 168.] waterscape, rI. (1842) An aqueduct or passage for water. waterway. See WATERCOURSE. waveson (wayv-san), n. Hist. Goods that float on the sea after a shipwreck. Cf. FLOTSAM; JETSAM; LAGAN (1). wax scot (wak skot), n. Hist. A duty on wax candles used Also termed in churches, usu. paid twice a year. cerage (seer-ij); ceratium (si-ray-shee-"m). way. (bef. 12c) 1. A passage or path. 2. A right to travel over another's property. See RIGHT-OF-WAY. [Cases: Easements (;=, 1.] private way. (17c) 1. The right to pass over another's land. [Cases: Easements C=> 1.] 2. A way provided by local authorities primarily to accommodate particu­ lar individuals (usu. at the individual's expense) but also for the public's passage. [Cases: Private Roads

1730

way of necessity. See implied easement under EASE­ MENT.

waybill. Maritime law. A document acknowledging the receipt of goods by a carrier or by the shipper's agent and the contract for the transportation ofthose goods. • Unlike a bill oflading, a waybill is not a document of title and is nonnegotiable. Abbr. WE. Cf BILL OF LADING. [Cases: ShippingG=106(1).J air waybill. A waybill for goods shipped by air. Cf.

overseas bill of lading under BILL OF LADING. [Cases:

Carriers C=>51, 153.]

way-going crop. A grain crop, formerly sown by a tenant during a tenancy (esp. in Pennsylvania), that did not ripen until after expiration of the lease .• In the absence of an express agreement to the contrary, the tenant was entitled to the crop. [Cases: Landlord and Tenant C=> 139(2).] way-leave, n. (lSc) 1. A right-of-way (usu. created by an express grant) over or through land for the transporta­ tion of minerals from a mine or quarry. 2. The royalty paid for such a right. waynagium (way-nay-jee-"m). See WAINAGE. way of necessity. See implied easement under EASE­ MENT.

ways-and-means committee. (1840) A legislative com­ mittee that determines how money will be raised for various governmental purposes. [Cases: United States C=>23.] WB. abbr. WAYBILL. WC. abbr. WORKERS' COMPENSATION. WCT. abbr. WIPO COPYRIGHT TREATY. W.D. abbr. Western District, in reference to U.S. judicial districts. weak mark. See descriptive trademark under TRADE­ MARK.

weak trademark. See descriptive trademark under TRADEMARK.

wealreaf (weel-reef), n. Archaic. The robbery of a dead ­ person in a grave. wealth. 1. A large quantity of something. 2. The state of haVing abundant financial resources; affluence. wealth maximization. A situation resulting from a change in the allocation of resources if the change benefits the winner - I.e., the one who benefits from the change more than it harms the loser.• A situa­ tion in which all possible wealth-maximizing changes have occurred is described as Kaldor-Hicks efficient or as beingpotentialiy Pareto superior. See PARETO OPTI­ MALITY; PARETO SUPERIORITY.

weapon. (bef. 12c) An instrument used or deSigned to be used to injure or kill someone. [Cases: Weapons C=> 4,8.] concealed weapon. (1833) A weapon that is carried by a person but that is not visible by ordinary observation. [Cases: Weapons (..~ 10.]

Weingarten right

1731

dangerous weapon. (17c) An object or device that, because of the way it is used, is capable of causing serious bodily injury. [Cases: Weapons deadly weapon. (16c) Any firearm or other device, instrument, material, or substance that, from the manner in which it is used or is intended to be used, is calculated or likely to produce death. - In some states, the definition encompasses the likelihood of causing either death or serious physical injury. Also termed lethal weapon. Cf. DANGEROUS INSTRUMENTALITY. [Cases: Assault and Battery deadly weapon per se. (1872) A weapon that is deadly in and of itself or would ordinarily result in death by its use . - Also termed per se deadly weapon. [Cases: Assault and Battery (;::::>56.] lethal weapon. See deadly weapon. nondeadly weapon. See LESS-LETHAL nonlethal weapon. See LESS-LETHAL. weapon ofmass destruction. (usu. pl.) A weapon that is intended to kill human beings, without discrimi­ nating between combatants and noncombatants, on a massive scale. - Among the most frequently cited examples are nuclear weapons and chemical weapons. - Abbr. WMD. wear, n. [fro Saxon were "a taking"] Hist. A dam made of stakes interlaced by twigs of willows that are placed across a river to more easily accommodate the netting of fish. - Also termed weir. wear and tear. (17c) Deterioration caused by ordinary use; the depreciation ofproperty resulting from its rea­ sonable use . Also termed Jair wear and tear; natural wear and tear. [Cases: Landlord and Tenant =-55, 160.] "'Fair wear' is the deterioration caused by the reasonable use of the premises; 'fair tear' is the deterioration caused by the ordinary operation of natural forces. A tenant's repairing covenant commonly exempts the tenant from the obligation to repair damage characterisable as 'fair wear and tear' (sometimes called 'reasonable wear and tear'). In the absence of such an exempting provision, a covenant to repair requires the repairing of damage characterisable as fair wear and tear. Where a covenant to repair exempts the tenant from liability for 'fair wear and tear'. he is not responsible for deterioration or dilapidation caused by 'the reasonable use of the house by the tenant and the ordinary operation of natural forces.'" Peter Butt, Land Law 256 (2d ed. 1988).

Webb-Pomerene Act. A federal law, originally enacted in 1918, that provides a qualified exemption for an export business against the prohibitions of the anti­ trust laws. 15 USCA §§ 61 et seq. "The Webb-Pomerene Act was passed to aid and encourage our manufacturers and producers to extend our foreign trade. Congress believed that American firms needed the power to form joint export associations in order to compete with foreign cartels, but while Congress was willing to create an exemption from the antitrust laws to serve this narrow purpose, the exemption created by the Webb-Pomerene Act was carefully hedged in to avoid substantial injury to domestic interests. Organization

under the Webb·Pomerene Act does not give an export association the right to agree with foreign competitors to fix prices ... or establish exclusive markets ...." 54 Am. Jur. 2d Monopolies and Restraints of Trade § 262, at 298 (1996).

website-user agreement. See POINT-AND-CLICK AGREE­ MENT.

web-wrap agreement. See POINT-AND-CLICK AGREE­ MENT.

wedding. See MARRIAGE CEREMONY. wedge principle. (1951) The argument that relaxation of a constitutionally imposed restraint under specific circumstances may justify further relaxation in broader circumstances. - This principle is most often raised in the context of legalized human euthanasia. But it has frequently been invoked in other contexts, such as the right to protection from unreasonable search and seizure. - Also termed slippery-sloped principle; parade-oj-horrors objection. "[Tlhere is the familiar argument from the 'wedge prin­ ciple: which is used to deny the possibility of looking at particular circumstances in applying moral rules." Glanville Williams, The Sanctity of Life and the Criminal Law 315 (1957).

wedlock. The state of being married; matrimony. week. 1. A period of seven consecutive days beginning on either Sunday or Monday. 2. Any consecutive seven­ day period. [Cases: Time 6.] weekend sentence. See intermittent sentence under SENTENCE.

week-work. Hist. In feudal times, the obligation of a tenant to work two to four days in every week for his lord during the greater part ofthe year, and four or five during the summer months. See VILLEIN SERVICE. wehading. See TRIAL BY COMBAT. weighage (way-ij). A duty or other payment reqUired in return for weighing merchandise. weight. A measure ofheaviness; a measure ofthe quantity of matter. [Cases: Weights and Measures (;::::>3.J gross weight. The total weight of a thing, including its contents and any packaging. net weight. The total weight of a thing, after deducting its container, its wrapping, and any other extraneous matter.- Also termed neat weight. weighted vote. See VOTE (1). weight ofthe evidence. (17c) The persuasiveness of some evidence in comparison with other evidence . See BURDEN OF PERSUA­ SION. Cf. MANIFEST WEIGHT OF THE EVIDENCE; PRE­ PONDERANCE OF THE EVIDENCE. [Cases: Criminal Law (;:::;:>549; Evidence Weingarten right. Labor law. A union member's right to have a union representative present during an employment meeting that the member reasonably believes will result in disciplinary action. NLRB V. /. Weingarten, Inc., 420 U.S. 251, 95 S.Ct. 959 (1975). ­

weir

In July 2000, the NLRB extended Weingarten rights to nonunion employees. [Cases: Labor and Employment C=> 1469(1).] weir. See WEAR. wekhing. See WELSHING. welfare. (14c) 1. Well-being in any respect; prosperity. general welfare. (17c) The public's health, peace, morals, and safety. public welfare. (16c) A society's well-being in matters of health, safety, order, morality, economics, and politics. 2. A system of social insurance providing assistance to those who are financially in need, as by providing food stamps and family allowances. - Also termed (historically) poor relief [Cases: Agriculture Social Security and Public Welfare C=>4.] corporate welfare. Governmental financial assis­ tance given to a large company, usu. in the form of a subsidy. Welfare Clause. See GENERAL WELFARE CLAUSE. welfare plan. See EMPLOYEE BENEFIT PLAN. welfare state. (1894) A nation in which the government undertakes various social insurance programs, such as unemployment compensation, old-age pensions, family allowances, food stamps, and aid to the blind or deaf. - Also termed welfare-regulatory state. well, adj. Marine insurance. (Of a vessel) in good condi­ tion; safe and sound . well, adv. (be£ 12c) In a legally sufficient manner; unob­ jectionable <well-pleaded complaint>. well, n. A hole or shaft sunk into the earth to obtain a fluid, such as water, oil, or natural gas. limited-capacity well. An oil or gas well that is limited to producing only a portion of its monthly allowable because of market demand. stripper well. An oil or gas well that produces only small quantities .• In some states, such as Kansas and Illinois, stripper wells are common. well-completion clause. Oil & gas. A provision in an oil­ and-gas lease specifying that a lessee who starts drilling before the lease terminates has the right to complete the well and to maintain the lease if the drilling achieves production. See OPERATIONS CLAUSE. [Cases: Mines and Minerals C=>78.1(9).) well-knowing, adj. (17c) Intentional .• This term was formerly used in a pleading to allege scienter. See SCIENTER. well-pleaded complaint. See COMPLAINT. welshing. (1857) 1. The act or an instance of evading an obligation, esp. a gambling debt. 2. The common­ law act of larceny in which one receives a deposit to be paid back with additional money depending on the outcome of an event (such as a horse race) but at the time of the deposit the depositee intends to cheat and

1732

defraud the depositor by absconding with the money. • Although this term is sometimes thought to be a slur against those hailing from Wales, etymologists have not been able to establish this connection. Authorita­ tive dictionaries record the origin of the term as being unknown. - Also termed welching. welsh, vb. ­ welsher, n. Welsh mortgage. See MORTGAGE. wend, n. Hist. A large section ofland; a perambulation; a circuit. wer. See BLOOD MONEY (1). wergild (wOlr-gild). Rist. The fixed value of a person's life, being the amount that a homicide's kindred must pay to the kindred of the slain person so as to avoid a blood feud. - Also spelled wergeld; weregild; wehrgeld. See EFFUSIO SANGUINIS; LEODES.

West Australian plan. See instant-runoff voting under VOTING.

Westlaw. A West Group database for computer­ assisted legal research, proViding online access to legal resources, induding federal and state caselaw, statutes, regulations, legal treatises, legal periodicals, and general and business news. Abbr. WL. Westminster Confession of Faith (west-min-st.• As the examples illustrate, this noun, though plural in form, may be construed with either a plural or a Singular verb. whereabouts, adv. & can). whereas, con). (l4c) 1. While by contrast; although <McWilliams was stopped at 10:08 p.m. wearing a green hat, whereas the assailant had been identified at 10:04 p.m. wearing a black hat>. 2. Given the fact that; since <Whereas, the parties have found that their 1994 agreement did not adequately address inciden­ tal expenses ... ; and Whereas, the parties have now decided in an equitable sharing of those expenses ... ; Now, Therefore, the parties agree to amend the 1994 agreement as follows ... >.• In sense 2, whereas is used to introduce contractual recitals and the like, but modern drafters increaSingly prefer a simple heading, such as "Recitals" or "Preamble," and in that way avoid the legalistic whereases. - whereas (recital or preamble), n. whereas clause. 1. See PREAMBLE (1).2. See RECITAL (2). whereat, con). (14c) 1. At or toward which . 2. As a result of which; where­ upon . whereby, con). (13c) By which; through which; in accor­ dance with which . wherefore, premises considered. (1867) For all these reasons; for the reason or reasons mentioned above .• The phrase is often used to begin the final paragraph of a motion, judgment, contract, or agreement. wherefrom, con). (14c) From which . 3. How; in what respect . wherein, adv. whereof, can). (13c) 1. Of what <Judge Wald knows whereof she speaks>. 2. Of which . 3. Of whom <judges whereof only the most glowing words might be said>. whereon, con). (l3c) On which . - Also termed where­ upon. whereto, con). (14c) To what place or time . Also termed whereunto. - whereto, adv. whereupon, con). (14c) 1. WHEREON . 2. Soon after and as a result of which; and then .

1734

wherewith

wherewith, conj. (14c) By means of which . whim. A passing fancy; an impulse . whipping, n. A method of corporal punishment formerly used in England and a few American states, consisting of inflicting long welts on the skin, esp. with a whip. whipsaw strike. See STRIKE. whisper stock. See STOCK. whistleblower, n. (1970) An employee who reports employer wrongdoing to a governmental or law­ enforcement agency.• Federal and state laws protect whistleblowers from employer retaliation. [Cases: Labor and Employment C:=:o775; Officers and Public Employees C:=:o66. - whistleblowing, n. whistleblower act. (1984) A federal or state law protect­ ing employees from retaliation for properly disclosing employer wrongdoing such as violating a law or regu­ lation, mismanaging public funds, abusing authority, or endangering public health or safety.• Federal laws containing whistleblower provisions include the Whis­ tleblower Protection Act (5 USCA § 1211), the Occupa­ tional Safety and Health Act (29 USCA § 660), CERCLA (42 USCA § 9610), and the Air Pollution and Control Act (42 USCA § 7622). [Cases: Labor and Employment C:=:o775; Officers and Public Employees C:=:o69.7.] Whiteacre. (17c) A fictitious tract ofland used in legal discourse (esp. law-school hypotheticals) to discuss real-property issues. See BLACKACRE. white bonnet. Scots law. A fictitious bidder at an auction; a shill. white book. 1. Hist. (cap.) ALBUS LIBER. 2. A government report bound in white, common esp. in European and papal affairs. whitecapping. (1900) Criminal law. The criminal act of threatening a person - usu. a member of a minority group - with violence in an effort to compel the person either to move away or to stop engaging in a certain business or occupation .• Whitecapping statutes were originally enacted to curtail the activities of the Ku Klux Klan. [Cases: Extortion and Threats C:=:o25.1.] white-collar crime. (1940) A nonviolent crime usu. involving cheating or dishonesty in commercial matters.• Examples include fraud, embezzlement, bribery, and insider trading. whitehorse case. (1971) Slang. A reported case with facts virtually identical to those of the instant case, so that the disposition of the reported case should determine the outcome of the instant case. - Also termed horse case; goose case; gray mule case; red-cow case. Cf. ON ALL FOURS.

white knight. A person or corporation that rescues the target of an unfriendly corporate takeover, esp. by acquiring a controlling interest in the target corpora­ tion or by making a competing tender offer. - Also

termed friendly suitor. See TAKEOVER. Cf. CORPORATE RAIDER.

Whiteley rule. See FELLOW-OFFICER RULE. White model. Labor law. A method for determining whether a union member's state-law claim against the employer is preempted by federal law, by focusing on whether state law permits the claim to be waived by a private contract .• In Lingle v. Norge Division of Magic Chef, Inc., 486 U.S. 399, 108 S.Ct. 1877 (1988), the Supreme Court held that a union member's state-law retaliatory-discharge claim was not preempted by the Labor-Management Relations Act because the claim could be resolved without interpreting the collective­ bargaining agreement. There are at least two models for applying the Lingle test: the White model, which focuses on whether the claim is negotiable or non­ negotiable (that is, whether state law allows the claim to be waived by a private contract) and the Marcus model, which focuses on the independence ofthe claim in relation to the collective-bargaining agreement. Under the White model, all negotiable claims (those waivable by private contract) are necessarily preempted because their resolution will require an interpretation of the collective-bargaining agreement. A nonnego­ tiable claims (one that state law does not permit to be waived by private contract) will be preempted only if its resolution requires an interpretation of the collec­ tive-bargaining agreement. The White model is named for the author of the law-review article in which it was proposed. Rebecca Homer White, Section 301's Pre­ emption ofState Law Claims: A Modelfor Analysis, 41 Ala. L. Rev. 377 (1990). See LINGLE TEST. Cf. MARCUS MODEL.

white rent. Hist. A feudal rent paid in silver, rather than in work, grain, or money baser than silver. Cf. BLACK RENT.

white slavery. The practice of forcing a female (or, rarely, a male) to engage in commercial prostitution .• Traf­ ficking in persons for prostitution is prohibited by the Mann Act (18 USCA §§ 2421-2424). [Cases: Prostitu­ tion C:=:o 15.] White Slave Traffic Act. See MANN ACT. Whitsunday. See quarter day under DAY. whole blood. See full blood under BLOOD. whole law. The law applied by a forum court in a mul­ tistate or multinational case after referring to its own choice-of-Iaw rules. [Cases: Action C:=:o 17.] whole life insurance. See LIFE INSURANCE. wholesale, n. The sale of goods or commodities usu. to a retailer for resale, and not to the ultimate consumer. Cf. RETAIL. - wholesale, vb. - wholesale, adj. wholesale arrest. See dragnet arrest under ARREST. wholesale dealer. One who sells goods in gross to retail dealers rather than selling in smaller quantities directly to consumers. wholesale price. See PRICE.

1735

wholesale price index. See PRODUCER PRICE INDEX. wholesaler. One who buys large quantities ofgoods and resells them in smaller quantities to retailers or other merchants, who in turn sell to the ultimate consumer. whole-statute rule. The principle of statutory construc­ tion that a statute should be considered in its entirety, and that the words used within it should be given their ordinary meanings unless there is a clear indication to the contrary. [Cases: Statutes~' 188,205.] wholly, adv. Not partially; fully; completely. wholly and permanently disabled, adj. Insurance. (Of an insured) completely and continuously unable to perform work for compensation or profit. [Cases: Insurance C:::>2035, 2553.] wholly dependent, adj. Workers' compensation. (Of a person) deriving full support from a worker's wages. [Cases: Workers' Compensation C:::>412-486.] wholly destroyed, adj. Insurance. (Of a building) so damaged that it is no longer capable ofbeing classified as a building, although some parts may remain intact. [Cases: Insurance C:::>2171.] wholly disabled, adj. Insurance. (Of a person) unable to perform the substantial and material acts necessary to carryon a business or occupation in the customary and usual manner. [Cases: Insurance (;=>2561.] whorehouse. See BROTHEL. widow, n. A woman whose husband has died and who has not remarried. [Cases: Death Cr'=>31(6); Descent and Distribution C:::> 52(1); Dower and Curtesy C:::> 1-118; Executors and Administrators C:::> 180.] widower, n. A man whose wife has died and who has not remarried. widower's allowance. See spousal allowance under ALLOWANCE (1).

widow's allowance. See spousal allowance under ALl.OW­ ANCE (1).

widow's election. See RIGHT OF ELECTION. wifa (wI-f~), n. [Old English] Hist. A mark or sign; esp., a landmark showing exclusive occupation or to prohibit an entry. wife. A married woman; a woman who has a lawful spouse living. [Cases: Bigamy (;= 1.] common-law wife. 1. The wife in a common-law marriage; a woman who contracts an informal marriage with a spouse and then holds herself out to the community as being married to that spouse. See common-law marriage under MARRIAGE (1). 2. Archaic. Loosely, a concubine. [Cases: Marriage C:::> 22.] plural wife. One of two or more women married Simultaneously to the same spouse in a polygamous marriage. [Cases: Marriage Cr'=>22.] wife beating. See spousal abuse under ABUSE. wife's equity. See EQUITY TO A SETTLEMENT.

will

wife's settlement. See EQUITY TO A SETTl.EMENT. wild animal. See ANIMAl.. wildcat strike. See STRIKE. wild creature. See wild animal under CREATURE. wild deed. See DEED. Wild's Case, Rule in. See RUl.E IN WILD'S CASE. wilful. See WILLFUL. will, n. (bef. 12c) 1. Wish; desire; choice <employment at will>. 2. The legal expression of an individual's wishes about the disposition ofhis or her property after death; esp., a document by which a person directs his or her estate to be distributed upon death . - Also termed testament; will and testament; (archaically) testamentary instrument. [Cases: Wills C:::> 1-202.] ­ will, vb. "The word 'will' has two distinct meanings. The first, and strict, meaning is metaphYSical, and denotes the sum of what the testator wishes, or 'wills,' to happen on his death. The second, and more common, meaning is physical, and denotes the document or documents in which that inten­ tion is expressed." Anthony R. Mellows, The LawofSucces· sian 6 (3d ed. 1977).

ambulatory will. (1909) A will that can be altered during the testator's lifetime. [Cases: Wills C:::>78.] antenuptial will. See prenuptial will. attested will. A will that has been signed by a witness. [Cases: WillsC:::>113.] bogus will. An unauthentic will, esp. one involving fraud or unauthorized changes. closed will. See mystic will. conditional will. A will that depends on the occur­ rence of an uncertain event for the will to take effect. _ Most jurisdictions hold a conditional will valid even though the testator's death does not result from or on the occasion of the condition mentioned in the will. The courts generally hold that the condition is the inducement for making the will rather than a condi­ tion precedent to its operation. See Eaton v. Brown, 193 U.S. 411, 24 S.Ct. 487 (1904); In re Will ofCohen, 491 A.2d 1292 (N.J. Super. Ct. App. Div. 1985). Cf. contingent will. [Cases: Wills {~>80.1 conjoint will. See joint will. contingent will. A will that takes effect only if a speci­ fied event occurs. Cf. conditional will. [Cases: Wills C:::>80.] counter will. See mutual will. double will. See mutual will. duplicate will. (1855) A will executed in duplicate origi­ nals by a testator who retains one copy and gives the second copy to another person. - The rules applica­ ble to wills apply to both wills, and upon application for probate, both copies must be tendered into the registry of the probate court. [Cases: Wills holographic will (hol-~-graf-ik). (1850) A will that is handwritten by the testator. - Such a will is typically

will

1736

unattested. Holographic wills are rooted in the civil­ law tradition, having originated in Roman law and having been authorized under the Napoleonic Code. French and Spanish settlers introduced holographic wills in America, primarily in the South and West. Today they are recognized in about half the states. ­ Also termed olographic will. See HOLOGRAPH. [Cases: Wills l30-l35.] inofficious will. See inofficious testament under TES­ TAMENT.

international will. A will that is executed according to formalities provided in an international treaty or convention, and that will be valid although it may be written in a foreign language by a testator domiciled in another country. [Cases: Wills C=>238-246.] invalid will. (18c) A will that fails to make an effective disposition of property. joint and mutual will. (1841) A single will executed by two or more people - to dispose of property they own separately, in common, or jointly - requiring the surviving testator to dispose of the property in accordance with the terms of the will. • A joint and mutual will is drafted to be contractually binding on the survivor. The word "joint" indicates the form of the will. The word "mutual" describes the substantive provisions. - Also termed joint and reciprocal will. [Cases: Wills C=>56-68, 100.] joint and reciprocal will. See joint and mutual will. joint will. (18c) A single will executed by two or more testators, usu. disposing of their common property by transferring their separate titles to one devisee. ­ Also termed conjoint will. [Cases: Wills C=>56-68, 100.] last will. (16c) The most recent will of a deceased; the instrument ultimately fixing the disposition of real and personal property at the testator's death. - Also termed last will and testament. "A will is the disposition of real and personal property to take effect after the death of the testator. When the will operates upon personal property, it is sometimes called a testament, and when upon real estate, a devise; but the more general and the more popular denomination of the instrument, embraCing equally real and personal estate, is that of last will and testament." 4 James Kent, Commen· taries on American Law *501 (George Comstock ed., 11 th ed.1866).

last will and testament. See last will. living will. See LIVING WILL. lost will. An executed will that cannot be found at the testator's death .• Its contents can be proved by parol evidence in many jurisdictions. But the overwhelm­ ing majority of American jurisdictions follow the common-law presumption of revocation if a will is proved to have been in the possession of the testator and has since been lost. [Cases: Wills C=>234, 293(4), 302(8).] mancipatory will (man-sip-i-tor-ee). Roman law. In early and classical law, a formal will sealed by

seven witnesses and submitted to the praetor. See TESTAMENTUM.

mariner's will. See soldier's will. mutual will. (usu. pl.) (1837) One of two separate wills in which two persons, usu. a husband and wife, estab­ lish identical or similar testamentary provisions dis­ posing of their estates in favor of each other.• It is also possible (though rare) for the testators to execute a single mutual will, as opposed to separate ones. And it is possible (though, again, rare) for more than two parties to execute mutual wills. - Also termed recip­ rocal will; counter will; double will; mutual testament. [Cases: Wills C=>56-68.] mystic will. Civil law. A secret will signed by the testator, sealed and delivered to a notary in the presence of three to seven witnesses, accompanied by the testa­ tor's declaration that it is a valid will. • The notary is then required to indorse on the envelope containing the will a statement of all the facts surrounding the transaction, and this is Signed by the notary and all the witnesses. - Also termed mystic testament; secret will; secret testament; closed will; closed testament; sealed will; sealed testament. [Cases: Wills C=> 124.] nonintervention will. A will that authorizes an inde­ pendent executor. See independent executor under EXECUTOR.

notarial will. A will executed by a testator in the presence of two witnesses and a notary public. nuncupative will (n;)ng-kYJ-pay-tiv or n<mg-kyoo­ pJ-tiv). (18c) An oral will made in contemplation of imminent death, esp. from a recent injury.• Nuncu­ pative wills are invalid in most states. Even in states allowing them, the amount that may be conveyed is usu. limited by statute. Traditionally, only personal property may be conveyed. - Also termed oral will; unwritten will; verbal will. [Cases: Wills 136­ 150.] "Nuncupative (i.e., oral) wills are by statute in almost all States required to be proved by two (sometimes three) witnesses, who were present and heard the testamentary words." John H. Wigmore, A Students' Textbook of the Law of Evidence 299 (1935).

nuncupative will by public act. Hist. Louisiana law. A will dictated by the testator to a notary in the presence of a specified number of witnesses.• The notary had to read the will back to the testator. The testator and the witnesses then signed the will. If the testator was physically unable to sign, another person could sign in the testator's presence on the testator's behalf. The number of required witnesses varied depending on the circumstances. This type of will was abolished in 1997. See La. Civ. Code art. 1574. - Also termed nuncupative testament by public act. olographic will. See holographic will. oral will. (1853) A will made by the spoken declara­ tion of the testator and usu. dependent on oral tes­ timony for proof. See nuncupative will. [Cases: Wills C=>l36-150.]

Williams Act

1737

parliamentary will. Slang. The legislation that governs the distribution of an intestate's property. - The term arose because the legislature effectively makes an intestate's will by passing statutes regulating descent and distribution. The terms ofthe parliamentary will are gathered from the statutes in effect when the intes­ tate died. postnuptial will (pohst-nap-shal). A will executed after marriage. pourover will (por-oh-v;)r). (1946) A will giving money or property to an existing trust. Cf. pourover trust under TR1.:ST. prenuptial will (pree-n3p-sh280,286.] with reserve. Of or relating to an auction at which an item will not be sold unless the highest bid exceeds a minimum price. [Cases: Auctions and Auctioneers C=>7.] with strong hand. With force .• In common-law pleading, this term implies a degree of criminal force, esp. as used in forcible-entry statutes. witness, n. (bef. 12c) 1. One who sees, knows, or vouches for something 37(4), 274.]

competent witness. (17c) A witness who is legally qualified to testify.• A lay witness who has personal knowledge of the subject matter of the testimony is competent to testify. Fed. R. Evid. 601-602. [Cases: Witnesses C=>35-79.] corroborating witness. (1853) A witness who confirms or supports someone else's testimony. [Cases: Wit­ nesses C=>41O.] court witness. A witness called or re-called to testify by the judge.• The witness called to testify by the court usu. has expertise in the subject matter of the trial and is considered necessary to resolve a conflict in the testimony. The court's discretion to call its own wit­ nesses exists in both civil and criminal cases. [Cases: Witnesses C=>Z46(Z).J credible witness. (l6c) A witness whose testimony is believable. disinterested witness. (18c) A witness who has no private interest in the matter at issue. [Cases: Wit­ nesses (>::)91.]

expert witness. (1858) A witness qualified by knowl­ edge, skill, experience, training, or education to provide a scientific, technical, or other specialized opinion about the evidence or a fact issue. Fed. R. Evid. 702-706. - Also termed skilled witness. See EXPERT; DAUBERT TEST; expert opinion under OPINION (3). [Cases: Criminal Law (>=-478-480; Evidence'C=> 535-546.]

going witness. Archaic. A witness who is about to leave a court's jurisdiction, but not the country.• An example is the witness who leaves one state to go to another. grand-jury witness. (1947) A witness who is called to testify before a grand jury. [Cases: Grand Jury 36.]

hostile witness. (1852) A witness who is biased against the examining party, who is unwilling to testify, or who is identified with an adverse party.• A hostile witness may be asked leading questions on direct examination. Fed. R. Evid. 611(c). Also termed adverse witness. See adverse party under PARTY (2). [Cases: Witnesses C~244.1

1741

interested witness. (i8c) A witness who has a direct and private interest in the matter at issue .• Most juris­ dictions provide that a person witnessing a will may not be a devisee under the will. The Uniform Probate Code, however, has abrogated this rule. lCases: Wit­ nesses lay witness. (1853) A witness who does not testify as an expert and who is therefore restricted to giving an opinion or making an inference that (1) is based on firsthand knowledge, and (2) is helpful in clarifying the testimony or in determining facts. Fed. R. Evid. 701. Criminal Law ~448-467;

470-503.J

material witness. (I7c) A witness who can testify about matters haVing some logical connection with the con­ sequential facts, esp. if few others, if any, know about those matters. [Cases: Witnesses ~4.1 percipient witness. (1913) A witness who has perceived the things about which he or she testifies. See EYEWIT­ NESS; EARWITNESS.

prosecuting witness. (1823) A person who files the com­ plaint that triggers a criminal prosecution and whose testimony the prosecution usu. relies on to secure a conviction. [Cases: Criminal Law qualified witness. (1845) A witness who, by explaining the manner in which a business records are made and kept, is able to lay the foundation for the admission of those records under an exception to the hearsay rule. Fed. R. Evid. 803(6). [Cases: Criminal Law C:)444.9; Evidence ~373.1 rebuttal witness. (1891) A witness who contradicts or attempts to contradict evidence previously pre­ sented. res gestae witness. (1894) A witness who, having been at the scene of an incident, can give a firsthand account of what happened. See RES GESTAE. [Cases: Criminal Law ~363; Evidence 41; Landlord and Tenant (;:::::> 291(17).] "In some states, follOWing the British statutes, the prosecu­ tor may have a writ of restitution for the premises immedi­ ately on the rendition of a verdict of guilty on an indictment for forcible entry and detainer; and the operation of such writ of restitution is not suspended by an appeal by the defendant." 35 Am.Jur. 2d Forcible Entry and Detainer§ 61, at 931 (1967).

2. A common-law writ issued when a judgment is reversed, whereby all that was lost as a result of the judgment is restored to the prevailing party. [Cases: Appeal and Error (;:::::> 1179.] writ of review. (lSc) A general form of process issuing from an appellate court to bring up for review the record ofthe proceedings in the court below; the com­ mon-law writ of certiorari. [Cases: Courts Review (;:::::> 1.] writ of right. See WRIT OF COURSE. writ of second deliverance. See second deliverance under DELIVERANCE.

writ of sequestration. (I8c) A writ ordering that a court be given custody of something or that something not be taken from the jurisdiction, such as the collateral for a promissory note .• Such a writ is usu. issued during litigation, often so that the object will be available for attachment or execution after judgment. [Cases: Sequestration (;:::::> 13.1

1751

wrongful adoption

writ of summons. English law. A writ by which, under the Judicature Acts of1873-1875, all actions were com­ menced. See SUMMONS. writ of supersedeas. See SUPERSEDEAS. writ of supervisory control. (1901) A writ issued to correct an erroneous ruling made by a lower court either when there is no appeal or when an appeal cannot provide adequate relief and the ruling will result in gross injustice. [Cases: Courts ~'207.1.J writ oftestatumfierifacias. See TESTATUM (1). writ of threats. See SECURITATE PACIS. writ of tolt (tohlt). See TOLT. writ of trial. Hist. English law. By the Civil Procedure Act of 1835, a writ ordering an action brought in a superior court to be tried in an inferior court or before the undersheriff.• It was superseded by the County Courts Act of 1867, ch. 142, § 6 authorizing a defendant, in certain cases, to obtain an order that an action is to be tried in a county court. St. 3 & 4 WilL 4, ch. 42. writ of venire facias. See VENIRE FACIAS. writ of waste. Hist. A writ to recover damages against a tenant who committed waste. See WASTE (1). [Cases: Waste "After waste had been actually committed, the ancient cor­ rective remedy, in a court of common law, was by a writ of waste for the recovery of the place wasted, and treble damages as a compensation for the injury done to the inheritance." 78 Am,jur. 2d Waste § 29, at 417 (1975),

writ of withernam. See capias in withernam under WITHERNAM.

writ pro retorno habendo (proh ri-tor-noh hd-ben­ doh), n. [Law Latin "for return to be had"] Hist. A writ ordering the return ofgoods to a defendant who, upon the plaintiff's default, obtained a favorable judgment in a replevin action. See DELIVERANCE (4), writ system. (1890) The common-law procedural system under which a plaintiff commences an action by obtain­ ing the appropriate type of original writ. written contract. See CONTRACT. written description. See DESCRIPTION (5). written directive. See ADVANCE DIRECTIVE (2). written law. See LAW. written testimony. See TESTIMONY. written warranty. See WARRANTY (2). wrong, n. (bef. 12c) Breach of one's legal duty; viola­ 107.] tion of another's legal right. [Cases: Torts wrong, vb.



"A wrong may be described, in the largest sense, as anything done or omitted contrary to legal duty, consid­ ered in so far as it gives rise to liability." Frederick Pollock, A First Book of jurisprudence 68 (1896), "A wrong is simply a wrong act - an act contrary to the rule of right and justice. A synonym of it is injury, in its true and primary sense of injuria (that which is contrary to jus) . , , ," John Salmond, Jurisprudence 227 (Glanville L. Williams ed" 10th ed. 1947).

civil wrong. (I7c) A violation of noncriminal law, such as a tort, a breach of contract or trust, a breach of statutory duty, or a defect in performing a public duty; the breach ofa legal duty treated as the subject matter of a civil proceeding. See TORT (1). Cf. CRIME. continuing wrong. (1846) An ongoing wrong that is capable of being corrected by specific enforcement. - An example is the nonpayment of a debt. intentional wrong. (I8c) A wrong in which the mens rea amounts to intention, purpose, or deSign. - Also termed willful wrong. legal wrong. (I8c) An act that is a violation of the law; an act authoritatively prohibited by a rule oflaw. moral wrong. (l8c) An act that is contrary to the rule of natural justice. Also termed natural wrong. personal wrong. An invasion of a personal right. positive wrong. (18c) A wrongful act willfully com­ mitted. private wrong. (l6c) An offense committed against a private person and dealt with at the instance of the person injured. public wrong. (16c) An offense committed against the state or the community at large, and dealt with in a proceeding to which the state is itself a party. _ Not all public wrongs are crimes. For example, a person that breaches a contract with the government commits a public wrong, but the offense is a civil one, not a criminal one. real wrong. An injury to the freehold. transitory wrong. (2004) A wrong that, once commit­ ted, belongs to the irrevocable past.• An example is defamation. willful wrong. See intentional wrong. wrong of negligence. (1902) A wrong in which the mens rea is a form of mere carelessness, as opposed to wrongful intent. wrong ofstrict liability. (1986) A wrong in which a mens rea is not required because neither wrongful intent nor culpable negligence is a necessary condi­ tion of responsibility. wrongdoer, n. (15c) One who violates the law . - wrong­ doing, n. wrongful, adj. (l4c) 1. Characterized by unfairness or injustice <wrongful military invasion>. 2. Contrary to law; unlawful <wrongful termination>. 3. (Of a person) not entitled to the position occupied <wrongful pos­ sessor>. - wrongfully, adv. wrongful act. See wrongful conduct under CONDCCT. wrongful adoption. 1. An adoption in which the adoption agency fails to provide adoptive parents with full or accurate information regarding the child's physical or psychological background, _ The adoptive parents normally do not seek to nullify the adoption. Rather, they seek damages, usu. tor medical care and

wrongful-birth action

for emotional distress. 2. An adoptive parent's legal claim against an adoption agency for not fully or accu­ rately disclosing the child's physical or psychological background. Cf. ABROGATION OF ADOPTION. [Cases; Infants C::::> 17.] wrongful-birth action. (1972) A lawsuit brought by parents against a doctor for failing to advise them pro­ spectively about the risks of their having a child with birth defects. [Cases; Health C::::>687.] wrongful-conception action. See WRONGFUL-PREG­ NANCY ACTION. wrongful conduct. See CONDUCT. wrongful-death action. (1926) A lawsuit brought on behalf of a decedent's survivors for their damages resulting from a tortious injury that caused the dece­ dent's death. - Also termed death action; death case. Cf. SURVIVAL ACTION. [Cases; Death C::::>7-33.] wrongful-death statute. (1904) A statute authorizing a decedent's personal representative to bring a wrongful­ death action for the benefit of certain beneficiaries. ­ Formerly also termed death-damage statute. [Cases; Death C::::> 11.] wrongful discharge. See DISCHARGE (7).

1752

wrongful-eviction action. A lawsuit brought by a former tenant or possessor of real property against one who has put the plaintiff out ofpossession, alleging that the eviction was illegal. [Cases; Landlord and Tenant C::::> 180,278,278.17,292,318.]

wrongful garnishment. See GARNISHMENT. wrongful levy. See LEVY. wrongful-life action. (1963) A lawsuit brought by or on behalf of a child with birth defects, alleging that but for the doctor-defendant's negligent advice, the parents would not have conceived the child or, if they had, would have aborted the fetus to avoid the pain and suffering resulting from the child's congenital defects. • Most jurisdictions reject these claims. [Cases; Health C::::>687.]

wrongful-pregnancy action. (1979) A lawsuit brought by a parent for damages resulting from a pregnancy fol­ lowing a failed sterilization. - Also termed wrongful­ conception action. [Cases; Health C::::>686.] wrongful process. See ABUSE OF PROCESS. wrongful-termination action. See WRONGFUL-DIS­ CHARGE ACTION.

wrongful-discharge action. (1957) A lawsuit brought by an ex-employee against the former employer, alleging that the termination of employment violated a contract or was illegal. - Also termed wrongful-termination action. [Cases; Labor and Employment C::::>850.]

wrong of negligence. See WRONG.

wrongful dishonor, n. (1895) A refusal to accept or pay (a negotiable instrument) when it is properly presented and is payable. Cf. DISHONOR (1).

WTO. See WORLD TRADE ORGANIZATION.

wrong of strict liability. See WRONG. wrong verdict. See verdict contrary to law under VERDICT. wyte (WIt). Hist. 1. An immunity from an amercement. See AMERCEMENT. 2. See WITE.

x

X. abbr. 1. EX DIVIDEND. 2. EX RIGHTS. 3. EX DISTRIBU­ TION. 4. EX WARRANTS. X. 1. A mark serving as the signature of a person who is physically handicapped or illiterate.• The signer's name usu. appears near the mark, and ifthe mark is to be notarized as a signature, two signing witnesses are ordinarily required in addition to the notary public. [Cases: Signatures (;::::>5.] 2. A symbol equivalent to "by" when used in giving dimensions, as in 3 x 5 inches. 3. A mark placed on a document (such as an applica­ tion) to indicate a selection, such as "yes" or "no"; esp., a mark on a ballot to indicate a vote. XD. abbr. EX DIVIDEND. XDIS. abbr. EX DISTRIBUTION. xenodochium (zen-a-da-kI-am or -dok-ee-am), n. [fro Greek xenos "a guest" + dochein "to receive"] Roman law. 1. An inn. 2. A hospital. • Ihis was a charitable institution to which donations and legacies might validly be given. - Also termed xenodochion; xeno­ docheum; xenodochy. X-patent. Patents. An early U.S. patent, granted before the numbering system set up in the Patent Act of 1836 and so named because an X was added to the numbers of existing patents to avoid duplicate numbers. XQ. See cross-question under QUESTION (1). XR. abbr. EX-RIGHTS. XW. abbr. EX-WARRANTS.

xylon (zI-Ion), n. [fro Greek xulon "wood"] Archaic. A Greek punishment apparatus similar to stocks. XYY-chromosome defense. Criminal law. A defense, usu. asserted as the basis for an insanity plea, whereby a male defendant argues that his criminal behavior is due to the genetic abnormality of having an extra Y chromosome, which causes him to have uncontrol­ lable aggressive impulses .• Most courts have rejected this defense because its scientific foundations are uncertain. Also termed XYY defense. See INSANITY DEFENSE.

"As one commentator has suggested.. 'an attorney defending an XYY individual will be required to call upon both a geneticist and a psychiatrist to give expert testi­ mony. The geneticist's role would be to testifywirh respect to the individual's genetic structure, any distinguishing characteristics which are relevant to an insanity defense, and the result of family studies designated to determine the influence of genetics and environment on the develop­ mEmt of this individual. The psychiatrist's testimony would focus upon the defendant's mental capacity or condition.' But in the absence of sound medical support for an XYY defense, courts are understandably unsympathetic to defense efforts to obtain such expert testimony." Wayne R. LaFave & Austin W. ScottJr., Criminal Law § 4.8, at 380 (2d ed. 1986) (quoting Note, 57 Geo. L.J. 892, 902-03 (1969».

XYY syndrome. The abnormal presence of an extra Y chromosome in a male, theoretically resulting in increased aggressiveness and antisocial behavior some­ times resulting in criminal conduct. See XYY-CHROMO­ SOME DEFENSE.

y

Y2K warranty. abbr. Year 2000 warranty; a warranty that software, hardware, or a product having computer hardware or software components will function properly on and after January I, 2000.• These war­ ranties were common in the late 1990s. yank-cheating, n. The illegal practice of inserting paper money into a vending machine, then pulling the money out again after the machine has recognized it, thereby retaining the cash and unlawfully obtaining merchan­ dise. yardland, n. Hist. A variable quantity ofland, often 20 acres. Also termed virgata terrae (var-gay-ta ter­ ee). yardstick theory. Antitrust. A method of determining damages for lost profits (and sometimes overcharges) whereby a corporate plaintiff identifies a company similar to the plaintiff but without the impact of the antitrust violation. Cf. BEFORE-AND-AFTER THEORY; MARKET-SHARE THEORY.

"To the extent that either the markets or firms being compared are dissimilar, the yardstick theory will not produce a trustworthy estimate of what the plaintiff would have earned but for the defendant's conduct, The method therefore works best in markets that are both local and relatively homogeneous." Herbert Hovenkamp, Economics and Federal Antitrust Law § 16.7, at 454 (1985).

yea, n. Parliamentary law. An affirmative vote. yea and nay (yay / nay). Yes and no .• In old records, this was a mere assertion and denial without the necessity of an oath. year. 1. Twelve calendar months beginning January 1 and ending December 31. Also termed calendar year. 2. A consecutive 365-day period beginning at any point; a span of twelve months. [Cases: Time C~4.l fiscal year. An accounting period of 12 consecutive months 57.10, 57.16(2), 57.23(2), 57.27.} zone of employment. Workers' compensation. The physical place of employment within which an employee, if injured there, can receive compensation. Cf. COURSE OF EMPLOYMENT; SCOPE OF EMPLOYMENT. (Cases: Workers' Compensation C=:>604-618, 704­ 770.] zone of interests. (1969) The class or type of interests or concerns that a statute or constitutional guarantee is intended to regulate or protect. - To have standing to challenge a ruling (esp. of an administrative agency), the plaintiff must show that the specific injury suffered comes within the zone of interests protected by the statute on which the ruling was based. [Cases: Action 13; Administrative Law and Procedure C=:>666; Federal Civil Procedure C=:> 103.2.} zone of privacy. (1964) Constitutional law. A range of fundamental privacy rights that are implied in the express guarantees of the Bill ofRights. See PENUMBRA; RIGHT OF PRIVACY. [Cases: Constitutional Law C=:> 1210-1275.} zone search. See SEARCH. zoning, n. (1912) The legislative division of a region, esp. a municipality, into separate districts with different regulations within the districts for land use, building size, and the like. [Cases: Zoning and Planning C=:> 1, 4.} zone, vb. NO-ORAL-MODIFICATION CLAUSE. aesthetic zoning. Zoning deSigned to preserve the aes­ "[AJ 'zipper clause' ... so called because the combina­ thetic features or values of an area. [Cases: Zoning tion of the integration clause and the no-oral-modification and Planning C=:> 36.] clause is intended to foreclose claims of any representa­ tions outside the written contract ...." Pace v. Honolulu bonus zoning. See incentive zoning. Disposal Serv., 227 F.3d 1150, 1159 (9th Or. 2000). cluster zoning. Zoning that favors planned-unit zone. 1. An area that is different or is distinguished from development by allowing a modification in lot size surrounding areas . 2. An area in a and frontage requirements under the condition that city or town that, through zoning regulations, is under other land in the development be set aside for parks, particular restrictions as to building size, land use, and schools, or other public needs. - Also termed density the like . [Cases: Zoning and Planning C=:>31.j Zoning and Planning 245.} floating zone. An amount ofland aSSigned for a partic­ conditional zoning. Zoning in which a governmental ular use but in no particular location. _ An applicant body (without definitively committing itself) grants a who owns the specified amount ofland can apply for zoning change subject to conditions that are usu. not a use permit in a specific location. See floating zoning imposed on similarly zoned property. [Cases: Zoning under ZONING. and Planning C=:> 382, 382.1.} holding zone. Temporary, low-density zoning used "Conditions imposed are designed to protect adjacent land until a community determines how the area should from the loss of use value which might occur if the newly be rezoned. authorized use was permitted without restraint of any kind. Thus, conditional zoning seeks to minimize the potentially zone-of-danger rule. (1966) Torts. The doctrine allowing deleterious effect of a zone change on neighboring prop­ the recovery of damages for negligent infliction ofemo­ erties through reasonably conceived conditions which tional distress if the plaintiff was both located in the harmonize the landowner's need for rezoning with the

zoning public interest." 83 Am.jur. 2d Zoning and Planning § 218, at 193 (1992).

contextual zoning. An approach to zoning that con­ siders appropriate use of a lot based on the scale and types of nearby buildings .• Contextual zoning has been used, for example, to prevent the destruction of older, smaller residences to make room for larger houses disparagingly called "monster homes" or "mc mansions." in established neighborhoods. contract zoning. l. Zoning according to an agreement, by which the landowner agrees to certain restrictions or conditions in exchange for more favorable zoning treatment. • This type of contract zoning is usu. considered an illegal restraint of the government's police power, because by private agreement, the gov­ ernment has committed itself to a particular type of zoning. 2. Rezoning of property to a less restrictive classification subject to the landowner's agreement to observe specified limitations on the use and physical development of the property that are not imposed on other property in the zone .• This device is esp. used when property is located in a more restrictive zone that borders on a less restrictive zone. [Cases: Zoning and Planning C=:> 160.] cumulative zoning. A method of zoning in which any use permitted in a higher-use, less intensive zone is permissible in a lower-use, more intensive zone.• For example, under this method, a house could be built in an industrial zone but a factory could not be built in a residential zone. density zoning. See cluster zoning. Euclidean zoning (yoo-klid-ee-an). Zoning by specific and uniform geographical division .• 'Ihe purpose of Euclidean zoning is to ensure a municipality's orderly development by detailing what uses are permitted and where, and seeing that conflicting land uses are clearly separated. Its name comes from the Supreme Court case that approved it: Village ofEuclid v. Ambler Realty Co., 272 US. 365,47 S.Ct. 114 (1926). - Also termed use zoning. Cf. non-Euclidean zoning. [Cases: 31.] Zoning and Planning "Operating from the premise that everything has its place, zoning is the comprehensive division of a city into dif· ferent use zones. Use zoning is also known as Euclidean zoning, taking the name from the leading case of Euclid v. Ambler Realty Co., which upheld its validity.... In the typical zoning ordinance each zone has three varieties of uses: permitted, accessory and conditional. Ordinances may also specifically prohibit some uses." julian Conrad Juergensmeyer & Thomas E. Roberts, Land Use Planning and Development Regulation Law § 4.2, at 69 (2003).

exclusionary zoning. Zoning that excludes a specific class or type of business from a district. [Cases: Zoning and Planning floating zoning. Zoning that allots land for particular uses but does not specify the geographic locations for those uses .• This is a type of non-Euclidean zoning. It allows a zoning board to make individual rulings on every application for a particular use and take into account the community's current feelings about

1758

where or if the use should be allowed. See non-Euclid­ ean zoning. incentive zoning. A relaxation in zoning restrictions (such as denSity limits) that offers an incentive to a developer to provide certain public benefits (such as building low-income housing units). - Also termed bonus zoning. [Cases: Zoning and Planning 382.1.] interim zoning. Temporary emergency zoning pending revisions to existing ordinances or the development ofa final zoning plan. - Also termed stopgap zoning. [Cases: Zoning and Planning C=:> 22.] inverse zoning. Zoning that attempts to disperse par­ ticular types of property use rather than concentrate them. non-Euclidean zoning. Zoning that allows a mix of land uses in the same area if the uses are or can be made nonconflicting. For example, a business might be permitted to operate in a residential area if the business adopts a certain architecture to blend in with other structures and has sufficient landscaping and setback to guarantee that nearby residents will not suffer excessive noise, pollution, or other nuisances. Cf. Euclidean zoning. partial zoning. Zoning that affects only a portion of a municipality's territory, and that is usu. invalid because it contradicts the comprehensive zoning plan. Also termed piecemeal zoning. (Cases: Zoning and Planning (;::J 35, 162.] private zoning. Ihe use of restrictive covenants in private agreements to restrict the use and occupancy of real property.• Private zoning often covers such things as lot size, building lines, architectural speci­ fications, and property uses. [Cases: Covenants C=:> 1,49,69.] reverse spot zoning. Zoning of a large area of land without regard for the zoning of a small piece ofland within that area. [Cases: Zoning and Planning 35,162.] "When parcels around a given property are rezoned to allow for higher uses leaving an island of less intensive use, reverse spot zoning is the result." Donald G. Hagman &julian Conradjuergensmeyer, Urban Planning and Land Development Control Law § 5.4, at 136 (2d ed. 1986).

spot zoning. Zoning of a particular piece of land without regard for the zoning of the larger area sur­ rounding the land. [Cases: Zoning and Planning Cr'-J 35,162.] ''To the popular mind, spot zoning means the improper permission to use an 'island' of land for a more intensive use than permitted on adjacent properties. The popular definition needs several qualifications .... The set of facts usually involves an 'island' of more intensive use than sur· rounding property .... Usually the 'island' is small.. . Furthermore, the term is not properly applied to develop· ment permission that comes about by variance or special exception. Rather, the term refers to a legislative act, such as a rezoning, or to a situation in which the 'island' is created by the original ordinance." Donald G. Hagman & Julian Conrad Juergensmeyer, Urban Planning and Land Development Control Law § 5.4, at 136 (2d ed. 1986).

1759

stopgap zoning. See interim zoning. use zoning. See Euclidean zoning. zoning map. The map that is created by a zoning ordi­ nance and shows the various zoning districts. [Cases: Zoning and Planning C=>30.] zoning ordinance. (1919) A city ordinance that regulates the use to which land within various parts of the city may be put. • It allocates uses to the various districts of a municipality, as by allocating residences to certain parts and businesses to other parts. A comprehensive zoning ordinance usu. regulates the height of build­ ings and the proportion of the lot area that must be free from buildings. [Cases: Zoning and Planning 21.] zoning variance. See VARIANCE (2). zygnomic (zig-noh-mik), adj. Of, relating to, or involving an act whose evolution directly abridges the freedom of a person who bears a duty in the enjoyment of a

zygote intrafallopian transfer

legal advantage.• This rather abstract term was coined by the philosopher Albert Kocourek in his book Jural Relations (1927). Cf. MESONOMIC. zygocephalum (zI-g"-sef-,,-I,,m), n. [Greek ff. zygo- "yoke, pair" + kephalos "head"] Hist. A measure ofland, esp. the amount that can be plowed in one day. zygostates (zI-goh-stay-teez), n. [Greek] Roman law. An officer who resolved controversies over weight; a public weigher. zygote. A two-celled organism formed by the joining of egg and sperm. Cf. EMBRYO; FETUS. zygote intrafallopian transfer. A procedure in which mature eggs are fertilized in a test tube or petri dish and then injected into a woman's fallopian tubes. Abbr. ZIFT. Also termed zygote intrafallopian-tube transfer. Cf. ARTIFICIAL INSEMINATION; GAMETE INTR­ AFALLOPIAN TRANSFER; IN VITRO FERTILIZATION.

Appendix A

Table of Legal Abbreviations L. Kurt Adamson"

This table is a working table of abbreviations, Le. abbreviations cited in American cases, books, articles, and texts, and not restricted to standard abbreviations found in legal citation manuals. The scope of abbreviations includes the names of common federal and state primary sources, legal periodicals, treatises, and organizations, as well as selected words or phrases commonly found in American publications from the 19th century forward. There are also selected abbreviations for English, Canadian, Australian, and international sources. The table has unique features in its two-part format. The main table lists fuller publication titles than may be found in other abbreviation tables. The second part lists the full names of individual authors referred to in the main abbreviation table. These fuller titles and author names may help in finding publications through a library catalog. Not every variation for a publication's abbreviation is listed. But the table can be used to interpret abbreviations not listed. First, the same publication or organization may be abbreviated with or without periods, such as "UPA" or "U.P.A." This table lists only one version. Second, standardized citations and abbreviations were not adopted until the 20th century. For example, Willard Phillips's Treatise on the Law of Evidence is cited in various sources as; Phillips, Law of Evidence Phillips on Evidence Phillips, Evidence Phillips, Ev. PhiL Ev. So the reader may use this table's information to interpret other variations of a publication's abbreviation. Many 19th-century treatises were published in numerous editions. Other parts of the citation are therefore essential to identify which edition of a work is being cited. Furthermore, the format "author on

__"

(such as Phillips on

Evidence) was a common citation practice throughout the 19th and early 20th centuries, even though it was only a common shorthand for the work or perhaps the title that appeared on its spine, but not the formal title of the work as found on its title page. Thus, this table provides at least the beginning portion of titles to treatises. The table is arranged in alphabetical order as if each abbreviation is one word without punctuation or spacing. Organizations are commonly cited without periods in the abbreviation. If an author's name is abbreviated, the full last name precedes the listed title. An author's initials are also included if there is more than one author with the same last name in the table. Finally, the ampersand (&) is treated, for purposes of order, as the word "and" in the abbreviation. This table is not intended to be comprehensive. Other abbreviations may be found in the following sources, Mary M. Prince, Bieber's Dictionary of Legal Abbreviations: A Reference Guide for Attorneys, Legal Secretaries, Paralegals and Law Students, 5th ed. (2001), Donald Raistrick, Index to Legal Citations and Abbreviations, 2d ed. (1993), Charles C. Soule, The Lawyer's Reference Manual (1884), or John G. Marvin, Legal Bibliography, or A Ihesaurus ofAmerican, English, Irish and Scotch Law Books (1847). For non-English language abbreviations, see Bieber and Raistrick, above, but also Igor I. Kavass and Mary M. Prince, A World Dictionary of Legal Abbreviations (1991-) or Arturo 1. Torres and Francisco Avalos, Latin American Legal Abbreviations: A Comprehensive Spanish/Portuguese Dictionary with English Translations (1989). *Associate Director for Collection Development (Ret' d), Underwood Law Library, Southern Methodist University Dedman School of Law.

1761

Appendix A

1762

A A. - Atlantic Reporter A.2d

Atlantic Reporter, Second Series

AALS - American Association of Law Schools A. & E. Ann. Cas. - American & English Annotated Cases A. & E. Enc. 1. of Law

American & English Encyclopedia

A. & E. Enc. 1. & Prac. - American & English Encyclopedia of Law and Practice A. &. E. Ency. - American & English Encyclopedia of Law A.B.A. - American Bar Association

American Bar Association Journal

A.B.A. J.

American Bar Association Reports

A.B.A. Rep.

Abb. N. Cas. - Abbott's New Cases (N.Y.)

Abbott's Practice Reports ( Y.)

Abb. Pro

Abb. Pro (n.s.) - Abbott's Practice Reports, New Series

( Y.) American Bar Foundation Research

A.B.F. Res. J. Journal

Admin. L.J. - Administrative Law Journal Admin. L.}. Am. U. - Administrative Law Journal of American University Administrative Law Review

Admin. 1. Rev.

Administrative Law Review

Adm. 1. Rev.

Advocate (Idaho)

Advoc.

Advocates' Quarterly

Advoc. Q.

Advocates' Q. - Advocates' Quarterly Adv. Sh. - Advance Sheet A.E.C. - Atomic Energy Commission Reports All England Law Reports

A.E.L.R.

Aff. Action Compl. Man. (BNA) Affirmative Action Compliance Manual for Federal Contractors aff'd - affirmed affirming

aff'g

A.F. 1. Rev. - Air Force Law Review Afr.-Am. L. & Pol'y Rep. - African-American Law and Policy Report Afr. L. Stud. - African Law Studies A.F.T.R. (P-H) - American Federal Tax Reports

A.B.F. Research Rep.. - American Bar Foundation Research Reporter

A.F.T.R.2d (RIA) Second Series

ACCA Docket - ACCA Docket: the Journal of American Corporate Counsel Association

Agric. Dec.

Accountancy 1. Rep. (CCH) - Accountancy Law Reporter acq.

Acquiescence

acq. in result - Acquiescence in result

A.D.

Appellate Division Reports (NY.)

A.D.2d (N.Y.)

-

Appellate Divisions Reports, Second Series

The Doctrine of Equity: A Commentary

Adams, Eq.

on the Law as Administered by the Court of Chancery Adams, Equity - The Doctrine of Equity: A Commentary on the Law as Administered by the Court of Chancery Adams County Law Journal (Pa.)

Adams L.J.

AD Cas. (BNA)

Americans with Disabilities Cases

Addison on Contracts - Addison on Contracts: Being a Treatise on the Law of Contracts Add. Torts - Addison, A Treatise on the Law of Torts Adelaide Law Review

Adel. 1. Rev.

Adelphia Law Journal

Adelphia L.J. Ad. L.B.

Administrative Law Bulletin Administrative Law Bulletin

Ad. L. Bull. Ad. L. News

Air Force JAG Law Review

A.F. JAG 1. Rev.

-

Administrative Law News

Admin. & Reg. 1. News Regulatory Law News Admin. 1. 3d Third Series

Administrative and

Pike & Fischer Administrative Law,

American federal Tax Reports,

Agriculture Decisions

AICPA Prof. Stand. (CCH) Standards

AICPA Professional

Agency for International Development

AID

AIDS Law and Litigation AIDS 1. & Litig. Rep. Reporter (Univ. Pub. Group) Aik.

-

Aikens (Vt.)

AIPLA - American Intellectual Property Law Association AIPLA Q.J. - AIPLA Quarterly Journal Air and Space Law

Air & Space L.

Air & Space Law. - Air and Space Lawyer Air. L. - Air Law Air Law Review

Air 1. Rev. A.K. Marsh.

A.K . Marshall (Ky.)

Akron L. Rev. - Akron Law Review Akron Tax. J. - Akron Tax Journal Ala.

-

Alabama Reports

Ala. Acts - Acts of Alabama Ala. Admin. Code

Alabama Administrative Code

Alabama Appellate Courts Reports

Ala. App.

Ala. Code - Code of Alabama Ala. Law. Ala. 1.1.

-

-

Alabama Lawyer

Alabama Law Journal

Ala. 1. Rev. - Alabama Law Review Alaska

Alaska Reports

Alaska Admin. Code - Alaska Administrative Code Alaska Fed.

Alaska Federal Reports

1763

Table of Legal Abbreviations

Alaska L. Rev.

-

Alaska Law Review

Alaska Sess. Laws Alaska Stat.

Amer. St. Rep.

Alaska Session Laws

-

Ala. St. B. Found. Bull. Foundation Bulletin Alberta L. Rev.

-

-

Alabama State Bar

Alb. L.'. Sci. & Tech. & Technology

-

-

Ames, Cas. on Bills & Notes

Albany Law Environmental

Albany Law Journal ofScience

Ames, Cas. on Tr usts Law ofTrusts Ames, Cas. Par. Partnership

Aldrich, Eq. Pi. & Pro Equity Pleadings and Practice in the Courts ofMassachusetts

AU-ABA Course Mat. J. Materials Journal All E.R.

ALl-ABA Business

Allnat on Partition ofPartition A.L.R.

A.L.R.2d

-

A.L.R.3d A.L.RAth A.L.R.Sth

All States Tax Guide

Am. J. Crim. L. Am. J. Fam. 1.

-

Am. J. In!'l 1. Law

-

-

Alternative Law Journal

American Academy of Am. Acad. Psych. & 1. Bull. Psychiatry and Law Bulletin -

-

Am. Bankr. L.J.

-

Am. Bankr. Rep.

Am. B. Found. Res J. Research Journal

Am. Dig.

American Bankruptcy

-

-

Am. Law.

American Bar Foundation

Amer. Rep.

-

American Law and Economics

American Law Institute

-

American Law Journal -

Am. Law Rev.

American Criminal Law Review

-

American Lawyer

Am. Law Mag.

Am. Lead. Cas. Cases

American Decisions American Reports

American Jurisprudence, Second

-

-

Am. Law J.

American Business Law Journal

American Digest

Am. Jur. 2d Edition

Am. Law Inst.

American Maritime Cases

Am. Crim 1. Rev. Am. Dec.

-

American Jurisprudence

Am. Jur.

Am. L. & Eeon. Rev. Review

American Bankruptcy Reports -

A.M.e.

. I

American Bankruptcy Law Journal

Am. Bankr. Rep. N.S. Reports, New Series

Am. Bus. L.J.

American Bankruptcy

American Journal