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Duhaime Lawisms
"Fragile as reason is and
limited as law is as the
institutionalized medium of
reason, that's all we have
standing between us and the
tyranny of mere will and the
cruelty of unbridled,
undisciplined feeling." Justice
Felix Frankfurter.
Abatement
A reduction in some amount that is owed, usually
granted by the person to whom the debt is owed.
For example, a landlord might grant an
abatement in rent. In estate law, the word may
refer more specifically to a situation where
property identified in a will cannot be given to the
beneficiary because it had to be sold to pay off
the deceased debts. Debts are paid before gifts
made in wills are distributed and where a specific
gift has to be sold to pay off a debt, it is said to
"abate" (compare with " ademption").
Abbacinare
A barbaric form of corporal punishment meted out
in the middle ages where persons would be
permanently blinded by the pressing of hot irons
to the open eyes.
Abduction
To take someone away from a place without that
person's consent or by fraud. See also "
kidnapping".
Abet
The act of encouraging or inciting another to do a
certain thing, such as a crime. For example, many
countries will equally punish a person who aids or
abets another to commit a crime.
Ab initio
Latin: from the start.
Acceleration clause
A clause in a contract that states that if a
payment is missed, or some other default occurs
(such as the debtor becoming insolvent), then the
contract is fully due immediately. This is a typical
clause in a loan contract; miss one payment and
the agreement to pay at regular intervals is
voided and the entire amount becomes due and
payable immediately.
Acceptance
One of three requisites to a valid contract under
common law (the other two being an offer and
consideration). A contract is a legally binding
agreement between two or more parties which
starts with an offer from one person but which
does not become a contract until the other party
signifies an unequivocal willingness to accept the
terms of that offer. The moment of acceptance is
the moment from which a contract is said to
exist, and not before. Acceptance need not
always be direct and can, in certain
circumstances, be implied by conduct (see
acquiescence below).
Accord and Satisfaction
A term of contract law by which one party, having
complied with its obligation under a contract,
accepts some type of compensation from the
other party (usually money and of a lesser value)
Arrears
A debt that is not paid on the due date adds up
and accumulates as "arrears". For example, if you
do not pay your rent, the debt still exists and is
referred to as "arrears". The same word is used to
describe child or spousal maintenance or support
which is not paid by the due date.
Arson
Some countries define "arson" as the intentional
setting of a fire to a building in which people live;
others include as "arson" the intentionally setting
of a fire to any building. In either case, this is a
very serious crime and is punishable by a long jail
sentence.
Assault
The touching of another person with an intent to
harm, without that person's consent.
Assign
To give, to transfer responsibility, to another. The
assignee (sometimes also called "assigns") is the
person who receives the right or property being
given and the assignor is the person giving.
Attorn or Attornment
To consent, implicitly or explicitly, to a transfer of
a right. Often used to describe a situation where
a tenant, by staying on location after the sale of
the leased property, accepts to be a tenant of the
new landlord; or where a person consents to
("attorns to") the jurisdiction of a court which
would not have otherwise had any authority over
that person.
Attorney
An alternate word for lawyers or " barrister &
solicitor", used mostly in the USA. A person that
has been trained in the law and that has been
certified to give legal advice or to represent
others in litigation.
Audi alteram partem
Latin: a principle of natural justice which prohibits
a judicial decision which impacts upon individual
rights without giving all parties in the dispute a
right to be heard. Habeas corpus was an early
expression of the audi alteram partem principle.
In more recent years, it has been extended to
include the right to receive notice of a hearing
and to be given an opportunity to be represented
or heard.
Autrefois acquit
French word now part of English criminal law
terminology. Refers to an accused who cannot be
tried for a crime because the record shows he has
already been subjected to trial for the same
conduct and was acquitted. If the accused
maintains that the previous trial resulted in
conviction, he or she pleads "autrefois convict."
"Autrefois attaint" is another similar term;
"attainted" for a felony, a person cannot be tried
again for the same offence.
A vinculo matrimonii
Latin: of marriage. The term is now used to refer
to a final and permanent divorce.
Avulsion
Land accretion that occurs by the erosion or
addition of one's land by the sudden and
unexpected change in a river stream such as a
flash flood.
http://www.duhaime.org/dictionary/dict-a.aspx (7 of 8)10/10/2005 3:00:54 PM
Avunculus
Latin: a mother's brother. "Avuncular" refers to
an uncle.
Legal Secretary's
Complete Handbook
Dictionary of
Legal Terms:
A Simplified Guide to
the Language of Law
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Duhaime Lawisms
"There is no jewel in the world
comparable to learning; no
learning so excellent as
knowledge of laws." Sir Edward
Coke.
Bad faith
Intent to deceive. A person who intentionally tries
to deceive or mislead another in order to gain
some advantage.
Bail
Criminal law: a commitment made (and possibly
secured by cash or property) to secure the
release of a person being held in custody and
suspected of a crime, to provide some kind of
guarantee that the suspect will appear to answer
the charges at some later date.
Bailee
The person who receives property through a
contract of bailment, from the bailor, and who
may be committed to certain duties of care
towards the property while it remains in his or her
possession.
Bailment
The transfer of possession of something (by the
bailor) to another person (called the bailee) for
some temporary purpose (eg. storage) after
which the property is either returned to the bailor
or otherwise disposed of in accordance with the
contract of bailment.
Bailor
The person who temporarily transfers possession
of property to another, the bailee, under a
contract of bailment.
Bankruptcy
The formal condition of an insolvent person being
declared bankrupt under law. The legal effect is to
divert most of the debtor's assets and debts to
the administration of a third person, sometimes
called a " trustee in bankruptcy", from which
outstanding debts are paid pro rata. Bankruptcy
forces the debtor into a statutory period during
which his or her commercial and financial affairs
are administered under the strict supervision of
the trustee. Bankruptcy usually involves the
removal of several special legal rights such as the
right to sit on a board of directors or, for some
professions that form part of the justice system,
to practice, such as lawyers or judges.
Commercial organizations usually add other nonlegal burdens upon bankrupts such as the refusal
of credit. The duration of "bankruptcy" status
varies from state to state but it does have the
benefit of erasing most debts even if they were
not satisfied by the sale of the debtor's assets.
Bare trust
A trust that has become passive for the trustee
because all the duties the settlor may have
imposed upon the trustee have been performed
or any conditions or terms have come to fruition,
such as there is no longer any impediment to the
transfer of the property to the beneficiary.
Barrister
A litigation specialist; a lawyer that restricts his or
her practice to the court room. In England and
some other Commonwealth jurisdictions, a legal
distinction is made between barristers and
solicitors, the latter with exclusive privileges of
advising clients, providing legal advice, and the
former with exclusive privileges of appearing in a
court on behalf of a client. In other words,
solicitors don't appear in court on a client's behalf
and barristers don't give legal advice to clients. In
England, barristers and solicitors work as a team:
the solicitor would typically make the first contact
with a client and if the issue cannot be resolved
and proceeds to trial, the solicitor would transfer
the case to a barrister for the duration of the
litigation. Lawyers in some states, such as
Canada, sometimes use the title "barrister and
solicitor" even though, contrary to England, there
is no legal distinction between the advising and
litigating roles. Canadian lawyers can litigate or
give legal advice, as is the case in the USA, where
lawyers are referred to as "attorneys."
Bastard
An illegitimate child, born in a relationship
between two persons that are not married (ie. not
in wedlock) or who are not married at the time of
the child's birth.
Bench
A judge in court session.
Beneficiary
In a legal context, a "beneficiary" usually refers to
the person for whom a trust has been created.
May also be referred to as a " donee" or, for legal
tecchies, as a cestui que trust. Trusts are made to
advantage a beneficiary ( ie. A settlor (also called
a " donor") transfers property to a trustee, the
profits of which are to be given to the
beneficiairy).
Berne Convention
An international copyright treaty called the
Convention for the Protection of Literary and
Artistic Works signed at Berne, Switzerland in
1886 (amended several times and as late as
1971) and to which now subscribe 77 nations
including all major trading countries including
China, with the notable exception of Russia. It is
based on the principle of national treatment.
Bigamy
Being married to more than one person at the
same time. This is a criminal offence in most
countries.
Bill of exchange
A written order from one person (the payor) to
another, signed by the person giving it, requiring
the person to whom it is addressed to pay on
demand or at some fixed future date, a certain
sum of money, to either the person identified as
payee or to any person presenting the bill of
exchange. A check is a form of bill of exchange
where the order is given to a bank.
Bill of lading
A document that a transport company possesses
acknowledging that it has received goods, and
serves as title for the purpose of transportation.
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Blind trust
A trust set up by a settlor who reserves the right
to terminate the trust but other than that, agrees
to assert no power over the trust, which is
administered without account to the beneficiary/
settlor or the retention of any other measure of
control over the trust's administration. In Canada,
for example, it is common for government
ministers to vest all their investment property to
a blind trust to avoid any conflict of interest.
Bona vacantia
Property that belongs to no person, and which
may be claimed by a finder. In some states, the
government becomes owner of all bona vacantia
property.
Born out of wedlock
Born of parents who were not married at the time
of birth.
Breach of contract
The failure to do what one promised to do under
a contract. Proving a breach of contract is a
prerequisite of any suit for damages based on the
contract.
Breach of trust
Any act or omission on the part of the trustee
which is inconsistent with the terms of the trust
agreement or the law of trusts. A prime example
is the redirecting of trust property from the trust
to the trustee, personally.
Buggery
Synonymous with sodomy and referring to
"unnatural" sex acts, including copulation, either
between two persons of the same sex or between
a person and an animal (the latter act also known
as "bestiality"). Most countries outlaw bestiality
but homosexual activity is gradually being
decriminalized.
Burden of proof
A rule of evidence that makes a person prove a
certain thing or the contrary will be assumed by
the court. For example, in criminal trials, the
prosecution has the burden of proving the
accused guilt because innocence is presumed.
Legal Secretary's
Complete Handbook
Dictionary of
Legal Terms:
A Simplified Guide to
the Language of Law
Home | About Us | Site Map | Privacy Policy | Contact Us | 2004 Duhaime Law
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Duhaime Lawisms
"Fragile as reason is and
limited as law is as the
institutionalized medium of
reason, that's all we have
standing between us and the
tyranny of mere will and the
cruelty of unbridled,
undisciplined feeling." Justice
Felix Frankfurter.
Canon law
The law of the Christian Church. Has little or no
legal effect today. Canon law refers to that body
of law which has been set by the Christian Church
and which, in virtually all places, is not binding
upon citizens and has virtually no recognition in
the judicial system. Some citizens resort to canon
law, however, for procedures such as marriage
annulments to allow for a Christian church
marriage where one of the parties has been
previously divorced. Many church goers and
church officers abide by rulings and doctrines of
canon law. Also known as "ecclesiastical law."
Capital punishment
The most severe of all sentences: that of death.
Also known as the death penalty, capital
punishment has been banned in many coutries. In
the United States, an earlier move to eliminate
capital punishment has now been reversed and
more and more states are resorting to capital
punishment for serious offenses such as murder.
Case law
The entire collection of published legal decisions
of the courts which, because of stare decisis,
contributes a large part of the legal rules which
apply in modern society. If a rule of law cannot
be found in written laws, lawyers will often say
that it is a rule to be found in "case law". In other
words, the rule is not in the statute books but can
be found as a principle of law established by a
judge in some recorded case. The word
jurisprudence has become synonymous for case
law.
Caveat
Latin: let him beware. A formal warning. Caveat
emptor means let the buyer beware or that the
buyers should examine and check for themselves
things which they intend to purchase and that
they cannot later hold the vendor responsible for
the broken condition of the thing bought.
Certiorari
A writ of certiorari is a form of judicial review
whereby a court is asked to consider a legal
decision of an administrative tribunal, judicial
office or organization (eg. government) and to
decide if the decision has been regular and
complete or if there has been an error of law. For
example, a certiorari may be used to wipe out a
decision of an administrative tribunal which was
made in violation of the rules of natural justice,
such as a failure to give the person affected by
the decision an opportunity to be heard.
Cestui que trust or cestui que use
The formal Latin word for the beneficiary or
donee of a trust.
Ceteris paribus
Covenant
A written document in which signatories either
commit themselves to do a certain thing, to not
do a certain thing or in which they agree on a
certain set of facts. They are very common in real
property dealings and are used to restrict land
use such as amongst shopping mall tenants or for
the purpose of preserving heritage property. For
example, a coventor to a mortgage commits
themself to pay the mortgage if the mortgagor
defaults.
Creditor
A person to whom money, goods or services are
owed by the debtor.
Crime
An act or omission which is prohibited by criminal
law. Each state sets out a limited series of acts
(crimes) which are prohibited and punishes the
commission of these acts by a fine, imprisonment
or some other form of punishment. In exceptional
cases, an omission to act can constitute a crime,
such as failing to give assistance to a person in
peril or failing to report a case of child abuse.
Criminal conversation
Synonymous with adultery. In old English law,
this was a claim for damages the husband could
institute against the adulterer.
Criminal law
That body of the law that deals with conduct
considered so harmful to society as a whole that
it is prohibited by statute, prosecuted and
punished by the government.
Cross-examination
In trials, each party calls witnesses. Each party
may also question the other's witness(es). When
you ask questions of the other party's witness
(es), it is called a "cross-examination" and you
are allowed considerably more latitude in crossexamination then when you question your own
witnesses (called an "examination-in-chief"). For
example, you are not allowed to ask leading
questions to your own witness whereas you can in
cross-examination.
Crown
The word refers specifically to the British
Monarch, where she is the head of state of
Commonwealth countries. Prosecutions and civil
cases taken (or defended) by the government are
taken in the name of the Crown as head of state.
That is why public prosecutors are referred to, in
Canada, as "Crown" prosecutors and criminal
cases take the form of "The Crown vs. John Doe"
or "Regina vs. John Doe", Regina being Latin for
"The Queen."
Cuius est solum, ejus est usque ad caelum et ad inferos
Latin: who owns the land, owns down to the
center of the earth and up to the heavens. This
principle of land ownership has been greatly
tempered by case law which has limited
ownership upwards to the extent necessary to
maintain structures. Otherwise, airplanes would
trespass incessantly.
Culpa lata
Latin for gross negligence. It is more than just
simple negligence and includes any action or an
Legal Secretary's
Complete Handbook
http://www.duhaime.org/dictionary/dict-c.aspx (11 of 12)10/10/2005 3:01:52 PM
Dictionary of
Legal Terms:
A Simplified Guide to
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Duhaime Lawisms
"Tis much more prudence to
acquit two persons, though
actually guilty, than to pass
sentence of condemnation on
one that is virtuous and
innocent." Voltaire.
Damages
A cash compensation ordered by a court to offset
losses or suffering caused by another's fault or
negligence. Damages are a typical request made
of a court when persons sue for breach of
contract or tort.
Death penalty
Also known as capital punishment, this is the
most severe form of corporal punishment as it is
requires law enforcement officers to kill the
offender. Forms of the death penalty include
hanging from the neck, gassing, firing squad and
has included use of the guillotine.
de bonis non
Latin and short for de bonis non administratis. A
word used exclusively in estate matters and
refers to situations where an estate is
abandonoed by an administrator only partially
administered and someone must be appointed to
complete the administration of the residue of the
estate; those assets not yet administered.
Debtor
A person who owes money, goods or services to
another, the latter being referred to as the
creditor.
Decapitation
The act of beheading a person, usually instantly
such as with a large and heavy knife or by
guillotine, as a form of capital punishment. This
form of capital punishment is still in use in some
Arab countries, notably Saudi Arabia.
Decree absolute
The name given to the final and conclusive court
order after the condition of a decree nisi is met.
Decree nisi
A provisional decision of a court which does not
have force or effect until a certain condition is
met such as another petition brought before the
court or after the passage of a period time, after
which it is called a decree absolute. Although no
longer required in many jurisdictions, this was the
model for divorce procedures wherein a court
would issue A decree nisi, which would have no
force or effect until a period of time passed (30
days or 6 months).
Deed
A written and signed document which sets out the
things that have to be done or recognitions of the
parties towards a certain object. Under older
common law, a deed had to be sealed; that is,
accompanied not only by a signature but with an
impression on wax onto the document. The word
deed is also most commonly used in the context
of real estate because these transactions must
usually be signed and in writing.
Deem
Donee
Donor
Legal Secretary's
Complete Handbook
Dictionary of
Legal Terms:
A Simplified Guide to
the Language of Law
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Duhaime Lawisms
"Fragile as reason is and
limited as law is as the
institutionalized medium of
reason, that's all we have
standing between us and the
tyranny of mere will and the
cruelty of unbridled,
undisciplined feeling." Justice
Felix Frankfurter.
Easement
A right of passage over a neighbor's land or
waterway. An easement is a type of servitude.
For every easement, there is a dominant and a
servient tenement. Easements are also classified
as negative (which prevents the servient land
owner from doing certain things) or affirmative
easements (the most common, which allows the
beneficiary of the easement to do certain things,
such as a right-of-way). Although right-of-ways
are the most common easements, there are many
others such as rights to tunnel under another's
land, to use a washroom, to emit smoke or
fumes, to pass over with transmission towers, to
access a dock and to access a well.
Ecclesiastical law
Synonymous to canon law: the body of churchmade law which binds only those persons which
recognize it, usually only church officers, and
based on aged precepts of canon law.
Emancipation
Term used to describe the act of freeing a person
who was under the legal authority of another
(such as a child before the age of majority) from
that control (such as child reaching the age of
majority). The term was also used when slavery
was legal to describe a former slave that had
bought or been given freedom from his or her
master. When Abraham Lincoln outlawed slavery
he did so in a law called the "emancipation
proclamation".
Embargo
This is an act of international military aggression
where an order is made prohibiting ships or goods
from leaving a certain port, city or territory and
may be enforced by military threat of destroying
any vehicle that attempts to break it or by trade
penalties. The word has also come to refer to a
legal prohibition of trade with a certain nation or
a prohibition towards the use of goods or services
produced by or within a certain nation.
Embezzle
The illegal transfer of money or property that,
although possessed legally by the embezzler, is
diverted to the embezzler personally by his or her
fraudulent action. For example, an employee
would embezzle money from the employer or a
public officer could embezzle money received
during the course of their public duties and
secretly convert it to their personal use.
Eminent domain
USA: The legal power to expropriate private land
for the sake of public necessity.
Emolument
A legal word which refers to all wages, benefits or
other benefit received as compensation for
holding some office or employment.
Emphyteusis
Civil law: a long-term (many years or in
perpetuity) rental of land or buildings including
the exclusive enjoyment of all product of that
land and the exercise of all property rights
typically reserved for the property owner such as
mortgaging the property for the term of the
emphyteusis or permitting a right of way.
Emptio or emtio
Latin for "purchase" or the contract in which
something is bought.
Enactment
A law or a statute; a document which is published
as an enforceable set of written rules is said to be
"enacted".
Endorsement
Something written on the back of a document. An
alternate spelling, in some English jurisdictions, is
"indorsement." In the laws of bills of exchange,
an endorsement is a signature on the back of the
bill of exchange by which the person to whom the
note is payable transfers it by thus making the
note payable to the bearer or to a specific person.
An endorsement of claim means that if you want
to ask a court to issue a writ against someone,
you have to "endorse" your writ with a concise
summary of the facts supporting the claim,
sometimes called a statement of claim.
Endowment
The transfer of money or property (usually as a
gift) to a public organization for a specific
purpose, such as medical research or
scholarships.
Entrapment
The inducement, by law enforcement officers or
their agents, of another person to commit a crime
for the purposes of bringing charges for the
commission of that artificially-provoked crime.
This technique, because it involves abetting the
commission of a crime, which is itself a crime, is
severely curtailed under the constitutional law of
many states.
Equity
A branch of English law which developed
hundreds of years ago when litigants would go to
the King and complain of harsh or inflexible rules
of common law which prevented "justice" from
prevailing. For example, strict common law rules
would not recognize unjust enrichment, which
was a legal relief developed by the equity courts.
The typical Court of Equity decision would prevent
a person from enforcing a common law court
judgment. The kings delegated this special
judicial review power over common law court
rulings to chancellors. A new branch of law
developed known as "equity", with their decisions
eventually gaining precedence over those of the
common law courts. A whole set of equity law
principles were developed based on the
predominant "fairness" characteristic of equity
such as "equity will not suffer a wrong to be
without a remedy" or "he who comes to equity
must come with clean hands". Many legal rules, in
countries that originated with English law, have
equity-based law such as the law of trusts and
mortgages.
Escheat
Where property is returned to the government
upon the death of the owner, because there is
nobody to inherit the property. Escheat is based
on the Latin principle of dominion directum as
was often used in the feudal system when a
tenant died without heirs or if the tenant was
convicted of a felony.
Escrow
When the performance of something is
outstanding and a third party holds onto money
or a written document (such as shares or a deed)
until a certain condition is met between the two
contracting parties.
Estate law
A term used by the law to decribe that part of the
law which regulates wills, probate and other
subjects related to the distribution of a deceased
person's "estate".
Estoppel
A rule of law that when person A, by act or
words, gives person B reason to believe a certain
set of facts upon which person B takes action,
person A cannot later, to his (or her) benefit,
deny those facts or say that his (or her) earlier
act was improper. A 1891 English court decision
summarized estoppel as "a rule of evidence which
precludes a person from denying the truth of
some statement previously made by himself".
Euthanasia
The putting to death, by painless method, of a
terminally-ill or severely debilitated person
through the omission (intentionally withholding a
life-saving medical procedure, also known as
"passive euthanasia") or commission of an act
("active euthanasia'). See also living will.
Evidence
Proof of fact(s) presented at a trial. The best and
most common method is by oral testimony;
where you have an eye-witness swear to tell the
truth and to then relate to the court (or jury)
their experience. Evidence is essential in
convincing the judge or jury of your facts as the
judge (or jury) is expected to start off with a
blank slate; no preconceived idea or knowledge of
the facts. So it is up to the opposing parties to
prove (by providing evidence), to the satisfaction
of the court (or jury), the facts needed to support
their case. Besides oral testimony, an object can
be deposited with the court (eg. a signed
contract). This is sometimes called "real
evidence." In other rarer cases, evidence can be
circumstantial.
Ex aequo et bono
Latin for "in justice and fairness." Something to
be decided ex aequo et bono is something that is
to be decided by principles of what is fair and
just. Most legal cases are decided on the strict
rule of law. For example, a contract will be
normally upheld and enforced by the legal system
no matter how "unfair" it may prove to be. But a
case to be decided ex aequo et bono, overrides
the strict rule of law and requires instead a
decision based on what is fair and just given the
circumstances.
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Examination-in-chief
The questioning of your own witness under oath.
Witnesses are introduced to a trial by their
examination-in-chief, which is when they answer
questions asked by the lawyer representing the
party which called them to the stand. After their
examination-in-chief, the other party's lawyer can
question them too; this is called "crossexamination".
Exculpate
Something that excuses or justifies a wrong
action.
Executor
A person specifically appointed by a testator to
administer the will ensuring that final wishes are
respected (i.e. that the will is properly
"executed"). An executor is a personal
representative.
Exhibit
A document or object shown to the court as
evidence in a trial. They are each given a number
or letter by the court clerk as they are introduced
for future reference during the trial. For example,
weapon are frequently given as exhibits in
criminal trials. Except with special permission of
the court, exhibits are locked up in court custody
until the trial is over.
Ex parte
Latin: for one party only. Ex parte refers to those
proceedings where one of the parties has not
received notice and, therefore, is neither present
nor represented. If a person received notice of a
hearing and chose not to attend, then the hearing
would not be called ex parte. Some jurisdictions
expand the definition to include any proceeding
that goes undefended, even though proper notice
has been given.
Ex patriate
A person who has abandoned his or her country
of origin and citizenship and has become a
subject or citizen of another country.
Ex post facto
Latin: after the fact. Legislation is called ex post
facto if the law attempts to extend backwards in
time and punish acts committed before the date
of the law's approval. Such laws are
constitutionally prohibited in most modern
democracies. For example, the USA Constitution
prohibits "any ex post facto law".
Expropriation
Canada: the forced sale of land to a public
authority. Synonymous to the USA doctrine of
"eminent domain".
Express trust
A trust which is clearly created by the settlor,
usually in the form of a document (eg. a will),
although they can be oral. They are to be
contrasted with trusts which come to being
through the operation of the law and which do not
result from the clear intent or decision of any
settlor to create a trust (eg. constructive trust).
Expunge
To physically erase; to white or strike out. To
"expunge" something from a court record means
to remove every reference to it from the court
Ex rel
file.
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Duhaime Lawisms
"If you like laws and sausages,
you should never watch either
one being made." Otto von
Bismarck.
Force majeure
French for an act of God; an inevitable,
unpredictable act of nature, not dependent on an
act of man. Used in insurance contracts to refer
to acts of nature such as earthquakes or
lightning.
Foreclosure
The technical meaning of the word is to wipe out
a right of redemption on a property. Generally,
this is what happens when someone does not pay
their mortgage. Even though there has been no
payments, the borrower retains a equitable right
of redemption if, some day, he or she were able
to find the money and try to exercise their right
of redemption. To clear the title of this potential,
a lender goes to court, demonstrates the default,
requests that a date be set where the entire
amount becomes payable after which, in the
absence of payment, the lender is automatically
relieved of the requirement to redeem the
property back to the borrower; the debtor's right
of redemption is said to be forever barred and
foreclosed. This cancels all rights a borrower
would have in the property and the property then
belongs entirely to the lender, who is then free to
possess or sell the property. The word is
frequently used to generally refer to the lender's
actions of repossessing and selling a property for
default in mortgage payments.
Fraud
Deceitful conduct designed to manipulate another
person to give something of value by (1) lying,
(2) by repeating something that is or ought to
have been known by the fraudulent party as false
or suspect or (3) by concealing a fact from the
other party which may have saved that party
from being cheated. The existence of fraud will
cause a court to void a contract and can give rise
to criminal liability.
Freehold
A special right granting the full use of real estate
for an indeterminate time. It differs from
leasehold, which allows possession for a limited
time. There are varieties of freehold such as fee
simple and fee tail.
Freeholder
A person who owns freehold property rights (i.e.
in a piece of real estate; either land or a
building).
Fugitive
One who runs away to avoid arrest, prosecution
or imprisonment. Many extradition laws also call
the suspect a "fugitive" although, in that context,
it does not necessarily mean that the suspect was
trying to hide in the country from which
extradition is being sought.
Functus officio
Latin: an officer or agency whose mandate has
expired either because of the arrival of an expiry
date or because an agency has accomplished the
purpose for which it was created.
Fungibles
Goods which are comprised of many identical
parts such as a bushel of grain or a barrel of
apples or oil, and which can be easily replaced by
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Duhaime Lawisms
"Fragile as reason is and
limited as law is as the
institutionalized medium of
reason, that's all we have
standing between us and the
tyranny of mere will and the
cruelty of unbridled,
undisciplined feeling." Justice
Felix Frankfurter.
Garnishment
The seizing of a person's property, credit or
salary, on the basis of a law which allows it, and
for the purposes of paying off a debt. The person
who possesses the assets of the debtor and is the
subject of the seizure is called a "garnishee". This
is frequently used in the enforcement of child
support where delinquent debtors will be
subjected to salary garnishment. A percentages
of their wages is subtracted directly off their paycheck and directed to the person in need of
support (the employer being the garnishee).
Gavel
A wooden mallet used by a judge to bring
proceedings to a start or to an end or to
command attention in his or her court.
General Agreement on Tariffs and Trade (GATT)
Multilateral international treaty first created in
1947 and frequently amended (most recently in
1994) to which 125 countries subscribe. GATT
provides for fair trade rules and the gradual
reduction of tariffs, duties and other trade
barriers. The 1994 amendment created a World
Trade Organization, which oversees the
implementation of the GATT.
General counsel
The senior lawyer of a corporation. This is
normally a full-time employee of the corporation
although some corporations contract this position
out to a lawyer with a private firm.
Gift over
A device used in wills and trusts to provide for the
gift of property to a second recipient if a certain
event occurs, such as the death of the first
recipient. For example, I give you my car but on
your death you must give it to your child; that is
a gift over to the benefit of your child.
Goodwill
An intangible business asset which includes a
cultivated reputation and consequential attraction
and confidence of repeat customers and
connections.
Grand Jury
An American criminal justice procedure whereby,
in each court district, a group of 16-23 citizens
hold an inquiry on criminal complaints brought by
the prosecutor and decide if a trial is warranted,
in which case an indictment is issued. If a Grand
Jury rejects a proposed indictment it is known as
a "no bill"; if they accept to endorse a proposed
indictment it is known as a "true bill".
Gross negligence
Any action or an omission in reckless disregard of
the consequences to the safety or property of
another. Sometimes referred to as "very great
negligence" and it is more then just neglect of
ordinary care towards others or just inadvertence.
H
Habeas corpus
Latin: a court petition which orders that a person
being detained be produced before a judge for a
hearing to decide whether the detention is lawful.
Habeas corpus was one of the concessions the
British Monarch made in the Magna Carta and has
stood as a basic individual right against arbitrary
arrest and imprisonment.
Habitual offender
A person who is convicted and sentenced for
crimes over a period of time and even after
serving sentences of incarceration, such as
demonstrates a propensity towards criminal
conduct. Reformation techniques fail to alter the
behaviour of the habitual offender. Many
countries now have special laws that require the
long-term incarceration, without parole, of
habitual offenders as a means of protecting
society in the face of an individual that appears
unable to comply with the law.
Harassment
Unsolicited words or conduct which tend to
annoy, alarm or abuse another person. An
excellent alternate definition can be found in
Canadian human rights legislation as: "a course
of vexatious comment or conduct that is known or
ought reasonably to be known to be unwelcome."
Name-calling ("stupid", "retard" or "dummy") is a
common form of harassment. (See also sexual
harassment.)
Hearsay
Any evidence that is offered by a witness of which
they do not have direct knowledge but, rather,
their testimony is based on what others have said
to them. For example, if Bob heard from Susan
about an accident that Susan witnessed but that
Bob had not, and Bob attempted to repeat
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Duhaime Lawisms
"Wherever the law ends,
tyranny begins." John Locke.
Immunity
An exemption that a person (individual or
corporate) enjoys from the normal operation of
the law such as a legal duty or liability, either
criminal or civil. For example, diplomats enjoy
"diplomatic immunity" which means that they
cannot be prosecuted for crimes committed
during their tenure as diplomat. Another example
of an immunity is where a witness agrees to
testify only if the testimony cannot be used at
some later date during a hearing against the
witness.
Incorporeal
Legal rights which are intangible such as
copyrights or patents.
Incorporeal hereditament
An incorporeal right which is attached to property
and which is inheritable. Easements and profits `
prendre are examples of incorporeal
hereditaments as are hereditary titles such as
those common in the United Kingdom.
Indefeasible
A right or title in property that cannot be made
void, defeated or canceled by any past event,
error or omission in the title. For example,
certificates of title issued under a Torrens land
titles system is said to be "indefeasible" because
the government warrants that no interest burdens
the title other than those on the certificate. This
makes long and expensive title searches
unnecessary.
Indictable offence
An offence which, in Canada, is more serious than
those which can proceed by summary conviction.
This is the Canadian equivalent to the USA
"felony". Murder and treason are examples of
crimes committed in Canada which would be
indictable offences. These crimes are usually tried
by federally-appointed judges and carry heavy
sentences.
Indictment
USA: a formal accusation returned by a Grand
Jury, that charges a person with a serious crime.
It is on the basis of an indictment that an accused
person must stand trial.
Infanticide
Murder of an infant soon after its birth.
Injunction
A court order that prohibits a party from doing
something (restrictive injunction) or compels
them to do something (mandatory injunction).
In limine
Latin: at the beginning or on the threshold. A
motion "in limine" is a motion that is tabled by
one of the parties at the very beginning of the
legal procedures.
In pari delicto
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Duhaime Lawisms
"Tis much more prudence to
acquit two persons, though
actually guilty, than to pass
sentence of condemnation on
one that is virtuous and
innocent." Voltaire.
Jactitation
A false boast designed to increase standing at the
expense of another. This used to form the basis
of an ancient legal petition called "jactitation of
marriage" wherein a person could be ordered by
the courts to cease claims of being married to a
certain person when, in fact, they were not
married. The tort of slander of title is a form of
jactitation.
J. D.
Abbreviation for "juris doctor" or "doctor of
jurisprudence" and the formal name given to the
university law degree in the United States. It is a
prerequisite to most bar admission exams.
Joint and several liability
Liability of more than one person for which each
person may be sued for the entire amount of
damages done by all.
Joint custody
A child custody decision which means that both
parents share joint legal custody and joint
physical custody. This is not very common and
many professionals have taken to referring to
"joint legal custody but sole maternal physical
custody" as "joint custody".
Joint tenancy
When two or more persons are equally owners of
some property. The unique aspect of joint
tenancy is that as the joint tenancy owners die,
their shares accrue to the surviving owner(s) so
that, eventually, the entire share is held by one
person. A valid joint tenancy is said to require the
"four unities": unity of interest (each joint tenant
must have an equal interest including equality of
duration and extent), unity of title (the interests
must arise from the same document), unity of
possession (each joint tenant must have an equal
right to occupy the entire property) and unity of
time: the interests of the joint tenants must arise
at the same time.
Judicial review
When a court decision is appealed, it is known as
an "appeal." But there are many administrative
agencies or tribunals which make decisions or
deliver government services of one sort or
another, the decisions of which can also be
"appealed." In many cases, the "appeal" from
administrative agencies is known as "judicial
review" which is essentially a process where a
court of law is asked to rule on the
appropriateness of the administrative agency or
tribunal's decision. Judicial review is a
fundamental principle of administrative law. A
distinctive feature of judicial review is that the
"appeal" is not usually limited to errors in law but
may be based on alleged errors on the part of the
administrative agency on findings of fact.
Jure
kin
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Duhaime Lawisms
"If you like laws and sausages,
you should never watch either
one being made." Otto von
Bismarck.
Laches
A legal doctrine whereby those who take too long
to assert a legal right, lose their entitlement to
compensation. When you claim that a person's
legal suit against you is not valid because of this,
you would call it "estoppel by laches".
Landlord
A land or building owner who has leased the land,
the building or a part of the land or building, to
another person.
Larceny
An old English criminal and common law offence
covering the unlawful or fraudulent removal of
another's property without the owner's consent.
The offence of theft now covers most cases of
larceny. But larceny is wider than theft as it
includes the taking of property of another person
by whatever means (by theft, overtly , by fraud,
by trickery, etc.) if an intent exists to convert that
property to one's own use against the wishes of
the owner.
Law
All the rules of conduct that have been approved
by the government and which are in force over a
certain territory and which must be obeyed by all
persons on that territory (eg. the "laws" of
Australia). Violation of these rules could lead to
government action such as imprisonment or fine,
or private action such as a legal judgement
against the offender obtained by the person
injured by the action prohibited by law.
Synonymous to act or statute although in
common usage, "law" refers not only to
legislation or statutes but also to the body of
unwritten law in those states which recognize
common law.
Lawyer
A person that has been trained in the law and
that has been certified to give legal advice or to
represent others in litigation. Also known as a
"barrister & solictor" or an attorney.
Leading question
A question which suggests an answer; usually
answerable by "yes" or "no". For example: "Did
you see David at 3 p.m.?" These are forbidden to
ensure that the witness is not coached by their
lawyer through his or her testimony. The proper
form would be: "At what time did you see David?"
Leading questions are only acceptable in crossexamination or where a witness is declared
hostile.
Lease
A special kind of contract between a property
owner and a person wanting temporary
enjoyment and use of the property, in exchange
for rent paid to the property owner. Where the
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Duhaime Lawisms
"Let all the laws be clear,
uniform and precise. To
interpret laws is almost always
to corrupt them." Voltaire.
Magna Carta
Charter to which subscribed King John of England
on June 12, 1215 in which a basic set of limits
were set on the King's powers. King John had
ruled tyrannically. His barons rebelled and
committed themselves to war with King John
unless he agreed to the Charter. Held to be the
precursor of habeas corpus as Article 39 of the
Magna Carta held that no man shall be
"imprisoned, exiled or destroyed ... except by
lawful judgment of his peers or by the law of the
land". Click here to see the full text of the Magna
Carta.
Maintenance
Refers to the obligation of one person to
contribute, in part or in whole, to the cost of
living of another person. Maintenance is usually
expressed in a currency amount per month as in
"$450 a month maintenance." Some countries
prefer the words "support" (spousal or child) or
"alimony" but they all mean the same thing.
Malfeasance
Doing something which is illegal. Compare with
misfeasance and nonfeasance.
Mandamus
A writ which commands an individual,
organization (eg. government), administrative
tribunal or court to perform a certain action,
usually to correct a prior illegal action or a failure
to act in the first place.
Manslaughter
Accidental homicide or homicide which occurs
without an intent to kill, and which does not occur
during the commission of another crime or under
extreme provocation.
Maritime law
A very specific body of law peculiar to
transportation by water, seamen and harbors.
Marriage
The state-recognized, voluntary and exclusive
contract for the lifelong union of two persons.
Most countries do not recognize marriage
between same-sex couples or polygamous
marriages.
Massachusetts trust
A unique way to organize a business where the
property is bought by, or transferred to, a trustee
(such as a trust company) and the trustee issues
trust "units", which the investors, or their
designates, hold as beneficiaries. This is a
common way to structure a large real estate
purchase.
Matrimony
The legal state of being married. Ecclesiastics talk
of the "holy" state of matrimony.
Mediation
to the informer.
Monopoly
A commercial advantage enjoyed by only one or a
select few companies in which only those
companies can trade in a certain area. Some
monolopoies are legal, such as those temporarily
created by patents. Others are secretly built by
conspiracy between two or more companies and
are prohibited by law.
Moot
Also called a "moot point": a side issue, problem
or question which does not have to be decided to
resolve the main issues in a dispute.
Moot court
Fictional or hypothetical trial, usually hosted by
law schools, as training for future barristers or
litigators.
Moratorium
The temporary suspension of legal action against
a person.
Mortgage
An interest given on a piece of land, in writing, to
guarantee the payment of a debt or the execution
of some action. It automatically becomes void
when the debt is paid or the action is executed.
In some jurisdictions, it entails a conveyance of
the land until the debt is paid in full. The person
lending the money and receiving the mortgage is
called the mortgagee; the person who concedes a
mortgage as security upon their property is called
a mortgagor.
Murder
Intentional homicide (the taking of another
person's life), without legal justification or
provocation.
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Duhaime Lawisms
"Wherever the law ends,
tyranny begins." John Locke.
Paralegal
A person who is not a lawyer or is not acting in
that capacity but who provides a limited number
of legal services. Each country differs in the
authority it gives paralegals in exercising what
traditionally would be lawyers' work.
Pardon
A pardon is a government decision to allow a
person who has been convicted of a crime, to be
free and absolved of that conviction, as if never
convicted. It is typically used to remove a
criminal record against a good citizen for a small
crime that may have been committed during
adolescence or young adulthood. Although
procedures vary from one state to another, the
request for a pardon usually involves a lengthy
period of time of impeccable behavior and a
reference check. Generally speaking, the more
serious the crime, the longer the time
requirement for excellent behavior. In the USA,
the power to pardon for federal offenses belongs
to the President.
Parens patriae
Latin: A British common law creation whereby the
courts have the right to make unfettered
decisions concerning people who are not able to
take care of themselves. For example, court can
make custody decisions regarding a child or an
insane person, even without statute law to allow
them to do so, based on their residual, common
law-based parens patriae jurisdiction.
Pari delicto
Latin for "of equal fault." For example, if two
parties complain to a judge of the nonperformance of a contract by the other, the judge
could refuse to provide a remedy to either of
them because of "pari delicto": a finding that they
were equally at fault in causing the contract's
breach.
Pari passu
Latin: Equitably and without preference. This
term is often used in bankruptcy proceedings
where creditors are said to be "pari passu" which
means that they are all equal and that
distribution of the assets will occur without
preference between them.
Parole
An early release from incarceration in which the
prisoner promises to heed certain conditions
(usually set by a parole board) and under the
supervision of a parole officer. Any violation of
those conditions would result in the return of the
person to prison.
Parricide
Killing one's father or another a family member or
close relative.
Partnership
A business organization in which two or more
of another.
Polygamy
Being married to more than one person. Illegal in
most countries.
Polygraph
A lie-detector machine which records even the
slightest variation in blood pressure, body
temperature and respiration as questions are put
to, and answers elicited from a subject.
Postal rule
A rule of contract law that makes an exception to
the general rule that an acceptance is only
created when communicated directly to the
offeror. An acceptance is binding and the contract
is said to be perfected when the acceptor places
this acceptance in the mail box for return mail
even if, in fact, it never reaches the offeror. An
1892 British case summarized it as follows:
"Where the circumstances are such that it must
have been within the contemplation of the parties
that, according to the ordinary usages of
mankind, the post might be used as a means of
communicating the acceptance of an offer, the
acceptance is complete as soon as it is posted."
Power of attorney
A document which gives a person the right to
make binding decisions for another, as an agent.
A power of attorney may be specific to a certain
kind of decision or general, in which the agent
makes all major decisions for the person who is
the subject of the power of attorney. The person
signing the power of attorney is usually referred
to, in law, as the donor and the person that would
exercise the power of attorney, the donee.
Prcipe or precipe
Latin: used to refer to the actual writ that would
be presented to a court clerk to be officially
issued on behalf of the court but now mostly
refers to the covering letter from the lawyer (or
plaintiff) which accompanies and formally asks for
the writ to be issued by the court officer. The
precipe is kept on the court file, but does not
accompany the writ when the latter is served on
the defendant.
Praemunire
An offence against the King or Parliament, in old
English law, which led to serious penalties but not
capital punishment.
Precatory words
Words that express a wish or a desire rather than
a clear command. "Precatory words" are often
found in trusts or wills and cause great difficulties
when courts try to find the real intention of the
settlor or testator, For example, the words "all my
property to my wife to be disposed of as she may
deem just and prudent in the interest of my
family" were found to be "precatory" and did not
constitute a trust for family members other than
the wife.
Precedent
A case which establishes legal principles to a
certain set of facts, coming to a certain
conclusion, and which is to be followed from that
point on when similar or identical facts are before
a court. Precedent form the basis of the theory of
Promisee
A person whom is to be the beneficiary of a
promise, an obligation or a contract. Synonymous
to "obligee."
Promisor
The person who has become obliged through a
promise (usually expressed in a contract) towards
another, the intended beneficiary of the promise
being referred to as the promisee. Also
sometimes referred to a "obligor."
Promissory note
An unconditional, written and signed promise to
pay a certain amount of money, on demand or at
a certain defined date in the future. Contrary to a
bill of exchange, a promissory note is not drawn
on any third party holding the payor's money; it
is a direct promise from the payor to the payee.
Property
Property is commonly thought of as a thing which
belongs to someone and over which a person has
total control. But, legally, it is more properly
defined as a collection of legal rights over a thing.
These rights are usually total and fully
enforceable by the state or the owner against
others. It has been said that "property and law
were born and die together. Before laws were
made there was no property. Take away laws and
property ceases." before laws were written and
enforced, property had no relevance. Possession
was all that mattered. There are many
classifications of property, the most common
being between real property or immoveable
property (real estate such as land or buildings)
and "chattel", or "moveable" (things which are
not attached to the land such as a bicycle, a car
or a hammer) and between public (property
belonging to everybody or to the state) and
private property.
Propinquity
Nearness in place; close-by. Also used to describe
relationships as synonymous for "kin."
Pro possessore
As a possessor. For example, a person may
exercise certain rights over a thing not as owner
but pro possessore: as a person who possesses,
but does not own, the thing.
Propound
To offer a document as being authentic or valid.
Used mostly in the law of wills; to propound a will
means to take legal action, as part of probate,
including a formal inspection of the will, by the
court.
Pro rata
Latin: to divide proportionate to a certain rate or
interest. For example, if a company with two
shareholders, one with 25% and the other with
75% of the shares, received a gift of $10,000 and
desired to split it "pro rata" between the
shareholders, the shareholder with 25% of the
shares would receive $2,500 and the 75%
shareholder, $7,500.
Proprietor
Owner.
Pro se
Latin: in one's personal behalf. Contrast with pro
socio.
Pro socio
Latin: on behalf of a partner; not on one's
personal behalf.
Prosecute
To bring judicial proceedings against a person and
to administer them until the conclusion of the
court proceedings. Lawyers are hired by the
government to administer the prosecution of
criminal charges in the courts.
Prospectus
A document in which a corporation sets out the
material details of a share or bond issue and
inviting the public to invest by purchasing these
financial instruments.
Prostitute
A person who offers sexual intercourse for hire.
Pro tempore
Latin: something done temporarily only and not
intended to be permanent.
Proxy
A right which is signed-over to an agent. Proxies
are used frequently at annual meetings of
corporations where the right to exercise a vote is
"proxied" from the shareholder to the agent.
Public domain
A term of American copyright law referring to
works that are not copyright protected, free for
all to use without permission. Examples include
works that were originally non-copyrightable
(items that by their very nature are not eligible
for copyright such as ideas, facts or names),
copyright that has been lost or expired, where
copyright is owned or authored by the federal
government (federal documents and publications
are not copyrighted and so are public domain),
and those works which have been specifically
granted to the public domain.
Public law
Those laws which regulate (1) the structure and
administration of the government, (2) the
conduct of the government in its relations with its
citizens, (3) the responsibilities of government
employees and (4) the relationships with foreign
governments. Good examples are criminal and
constitutional law. It can be distinguished from
private law, which regulates the private conduct
between individuals, without direct involvement
of the government. For example, an unsolicited
punch in the nose would constitute a crime for
which the government would prosecute under
criminal law but for which there would also be a
private legal action possible by the injured party
under tort law, which is private law although
governments can be held responsible under tort
law. As you can see, the line is often hard to draw
between public and private law.
Puisne
Junior or lower in rank, as opposed to the chief
justice. For example, there are 8 puisne judges
on the Supreme Court of Canada and a chief
justice.
Punitive damages
Special and highly exceptional damages ordered
by a court against a defendant where the act or
omission which caused the suit, was of a
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Dictionary of
Legal Terms:
A Simplified Guide to
the Language of Law
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Duhaime Lawisms
"We must not make a
scarecrow of the law; setting it
up to fear the birds of prey and
let it keep one shape till
custom make it their perch and
not their terror." Shakespeare.
Quantum
Latin: amount or extent.
Quantum meruit
Latin for "as much as is deserved." This is a legal
principle under which a person should not be
obliged to pay, nor should another be allowed to
receive, more than the value of the goods or
services exchanged.
Quasi-judicial
Refers to decisions made by administrative
tribunals or government officials to which the
rules of natural justice apply. In judicial decisions,
the principles of natural justice always apply. But
between routine government policy decisions and
the traditional court forums lies a hybrid,
sometimes called a "tribunal" or "administrative
tribunal" and not necessarily presided by judges.
These operate as a government policy-making
body at times but also exercise a licensing,
certifying, approval or other adjudication
authority which is "judicial" because it directly
affects the legal rights of a person. Some law
teachers sugest that there is no such thing as a
"quasi-judicial" decision or body; the body or
decision is either judicial or not.
Quid pro quo
Latin: something for something. The giving of
something in exchange for another thing of equal
value.
Quorum
The number of people who must be present at a
meeting before business can be conducted.
Without "quorum", decisions are invalid. Many
organizations have a quorum requirement to
prevent decisions being taken without a majority
of members present.
Quo warranto
Latin and referring to a special legal procedure
taken to stop a person or organization from doing
something for which it may not have the legal
authority, by demanding to know by what right
they exercise the controversial authority.
R
Ransom
Money paid to have a kidnapped person released.
Rape
Sex with a woman, other than a wife, without her
consent. But many states have changed this basic
definition to include sex with a minor (with or
without consent; also known as statutory rape),
sex with a man without his consent, or exempting
Legal Secretary's
Complete Handbook
Dictionary of
Legal Terms:
A Simplified Guide to
the Language of Law
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Duhaime Lawisms
"The law is what it is - a
majestic edifice, sheltering all
of us, each stone of which rests
on another." John Gallsworthy.
Sanction
This is a very unusual word with two
contradictory meanings. To "sanction" can mean
to ratify or to approve but it can also mean to
punish. The "sanction" of a crime refers to the
actual punishment, usually expressed as a fine or
jail term.
Sanctuary
A special criminal law option available in Medieval
times to persons who had just committed a
crime, allowing them to seek refuge in a church
or monastery. There, they could be exempted
from the normal prosecution which, in those
days, was quite severe (see, for example, The
Law's Hall of Horrors). But the ordeal, even within
sanctuary, was no piece of cake. The fugitive had
to remain within the walls of the sanctuary,
abandon his or her oath to the king, followed
which they had a short period of time to leave the
country. They were considered to be "dead", so
much so that their land was forfeited to the King
and their wife considered to be a widow. If they
refused to renounce their oath, they could be
starved out of the sanctuary. Henry VIII of
England even took to branding them with a hot
iron before they left the country just in case they
tried to return; they could then be quickly spotted
and arrested. Abolished from the common law in
1624 and, in France, at the time of the
Revolution, the principle of sanctuary continues
today, in somewhat altered form, as diplomatic
asylum under international law.
Scienter
Latin for knowledge. In legal situations, the word
is usually used to refer to "guilty knowledge". For
example, owners of vicious dogs may be liable for
injuries caused by these dogs if they can prove
the owner's "scienter" (i.e. that the owner was
aware, before the attack, of the dog's vicious
character).
Search warrant
A court order (i.e. signed by a judge) that gives a
police the permission to enter private property
and to search for evidence of the commission of a
crime, for the proceeds of crime or property that
the police suspect may be used to commit a
crime. These court orders are obtained on the
basis of a sworn statement by the requesting law
enforcement officer and will precisely describe the
place to be searched and, in some cases, the
exact property being sought.
Seisin
The legal possession of property. In law, the term
refers more specifically to the possession of land
by a freeholder. For example, a owner of a
building has seisin, but a tenant does not,
because the tenant, although enjoying
State
Surety
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Legal Terms:
A Simplified Guide to
the Language of Law
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Duhaime Lawisms
"If you like laws and sausages,
you should never watch either
one being made." Otto von
Bismarck.
Taft-Hartley
The name of an American federal labor law which
was passed in 1947, and which sought to
"equalize legal responsibilities of labor
organizations and employers"; ie. balance the
Wagner Act, which, it was felt, may have gone to
far in protecting union rights. Where the Wagner
Act had was aimed primarily at employer
behavior, the Taft-Hartley was aimed at unions
and sought to restrain their activities under
certain circumstances, by detailing union rights
and duties. For example, the Taft-Hartley Act
exempted supervisors from it's provisions,
allowed employees to decline participation in
union activities and permitted union
decertification petitions.
Tamper
To interfere improperly or in violation of the law
such as to tamper with a document. The term
"jury tampering" means to illegally disrupt the
independence of a jury member with a view to
influencing that juror otherwise than by the
production of evidence in open court.
Tenancy by the entireties
A form of co-ownership in English law where,
when a husband transferred land to his wife, the
property could not be sold unless both spouses
agreed nor could it be severed except by ending
the marriage.
Tenant
A person to whom a landlord grants temporary
and exclusive use of land or a part of a building,
usually in exchange for rent. The contract for this
type of legal arrangement is called a lease. The
word "tenant" originated under the feudal system,
referring to land "owners" who held their land on
tenure granted by a lord.
Tenants in common
Similar to joints tenants. All tenants in common
share equal property rights except that, upon the
death of a tenant in common, that share does not
go to the surviving tenants but is transferred to
the estate of the deceased tenant. Unity of
possession but distinct titles.
Tender
An unconditional offer of a party to a contract to
perform their part of the bargain. For example, if
the contract is a loan contract, a tender would be
an act of the debtor where he produces the
amount owing and offers to the creditor. In real
property law, when a party suspects that the
other may be preparing to renege, he or she can
write a tender in which they unequivocally reassert their intention to respect the contract and
tender their end of the bargain; either by paying
the purchase or delivering the title.
Tenement
Transferor
A person from whom property moves. Property is
transferred from the transferor to th transferor. I
sell you my house and in transferring title to you,
I am the transferor and you, the transferee.
Treaty
A formal agreement between two states signed
by official representatives of each state. A treaty
may be "law-making" in that it is the declared
intention of the signatories to make or amend
their internal laws to give effect to the treaty. The
Berne Convention is an example of such as
treaty. Other treaties are just contracts between
the signatories to conduct themselves in a certain
way or to do a certain thing. These latter type of
treaties are usually private to two or a limited
number of states and may be binding only
through the International Court of Justice .
Trespass
Unlawful interference with another's person,
property or rights. Theoretically, all torts are
trespasses.
Trover
An old English and common law legal proceeding
against a person who had found someone else's
property and has converted that property to their
own purposes. The action of trover did not ask for
the return of the property but for damages in an
amount equal to the replacement value of the
property. English law replaced the action of trover
with that of conversion in 1852.
Trust
Property given by a person called the donor or
settlor, to a trustee, for the benefit of another
person (the beneficiary or donee). The trustee
manages and administers the property, actual
ownership is shared between the trustee and the
beneficiary and all the profits go to the
beneficiary. The word "fiduciary" can be used to
describe the responsibilities of the trustee
towards the beneficiary. A will is a form of trust
but trusts can be formed during the lifetime of
the settlor in which case it is called an inter vivos
or living trust.
Trustee
The person who holds property rights for the
benefit of another through the legal mechanism
of the trust. A trustee usually has full
management and administration rights over the
property but these rights must always be
exercised to the full advantage of the beneficiary.
All profits from the property go to the beneficiary
although the trustee is entitled to reimbursement
for administrative costs. There is no legal
impediment for a trustee to also be a beneficiary
of the same property.
Trustee de son tort
A trustee "of his own wrong"; a person who is not
a regularly appointed trustee but because of his
or her intermeddling with the trust and the
exercise of some control over the trust property,
can be held by a court as "constructive" trustee
which entails liability for losses to the trust.
Legal Secretary's
Complete Handbook
Dictionary of
Legal Terms:
A Simplified Guide to
the Language of Law
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Duhaime Lawisms
"Fragile as reason is and
limited as law is as the
institutionalized medium of
reason, that's all we have
standing between us and the
tyranny of mere will and the
cruelty of unbridled,
undisciplined feeling." Justice
Felix Frankfurter.
UIFSA
Usury
V
Vagrant
A tramp or homeless person.
Vendor
The seller; the person selling.
Venue
This has the same meaning as in everyday
English except that in a legal context it usually
refers specifically to the location of a judicial
hearing. For example, if a criminal case has a
very high media profile in a particular city, the
"venue" may change to another city to ensure
objective witnesses (i.e. that would not have
been spoiled by media speculation on the crime).
Vehicle
Any thing that is designed to transport persons or
objects. A bicycle has been held to be a vehicle.
Verba fortius accipiuntur contra proferentem
Latin: a principle of construction whereby if words
of a contract are ambiguous, of two equally
possible meanings, they should be interpreted
against the author of the words and not against
the other party.
Verdict
The decision of a jury. In criminal cases, this is
usually expressed as "guilty" or "not guilty".In a
civil case, the verdict would be a finding for the
plaintiff or for the defendant.
Videlicet
Latin for "to wit" or "that is to say." "Viz.", which
is the abbreviation of videlicet, is much more
commonly used. It is often found in legal
documents to advise that what follows provides
more detail about a preceding general statement.
For example: "The defendant committed adultery;
viz., on April 15th, at approximately 10:30 pm,
he had sexual intercourse with Ms Jane Doe."
Vis
An abbreviation of the Latin word videlicet. Short
for "namely" or "that is to say."
Vicarious liability
When a person is held responsible for the tort of
another even though the person being held
responsible may not have done anything wrong.
This is often the case with employers who are
held vicariously liable for the damages caused by
their employees.
Vir
Latin: man or husband. Vir et uxor censentur in
lege una persona is an old (and long abandoned
in most countries) legal principle meaning that
man and wife are considered to be one person in
law.
Void or void ab initio
Not legally binding. A document that is void is
http://www.duhaime.org/dictionary/dict-uz.aspx (2 of 6)10/10/2005 3:02:59 PM
W
Wagner Act
A 1935 American federal statute which recognized
employee rights to collective bargaining,
protected the right to belong to a union,
prohibited many anti-union tactics then used by
employers, and set up the National Labor
Relations Board. The NLRB was given wide
enforcement powers. It was later amended by the
Taft-Hartley Act in 1947.
Waiver
When a person disclaims or renounces to a right
that they may have otherwise had. Waivers are
not always in writing. Sometimes a person's
actions can be interpreted as a waiver.
Warranty
A guarantee given on the performance of a
product or the doing of a certain thing. For
example, many consumer products come with
warranties under which the manufacturer will
repair or replace any product that fails during the
warranty period; the commitment to repair or
replace being the "warranty".
Waste
The abuse, destruction or permanent change to
http://www.duhaime.org/dictionary/dict-uz.aspx (3 of 6)10/10/2005 3:02:59 PM
X-Z
Yellow dog contract
A name given in American labor law to contract of
employment by which the employee agrees to
forfeit their employment if they join a union
during the period of employment. These types of
contracts are now prohibited by American law.
Young offender
Young persons who, in many states, are treated
differently than adult criminals and are tried in
special youth courts. In Canada, for example,
criminal suspects between 12 and 17 inclusively
are processed under the Young Offenders Act,
which includes several provisions which reflect
the rehabilitative nature of the legislation.
Zipper
"Devices consisting of two opposite series of
members adapted to be attached one on each
side of an aperture in some article and to
interlock so as to close the aperture upon the
slide being operated in one direction, or to
separate so as to leave the aperture open upon
the slide being operated in the opposite
direction." Editor's note:we didn't make this up!
It's from a 1932 trademark case of the Supreme
Court of Canada called Lightning Fastener Co.
Ltd. V. Canadian GoodrichCo. Ltd.
Legal Secretary's
Complete Handbook
Dictionary of
Legal Terms:
A Simplified Guide to
the Language of Law
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