ABANDONED CHILD [SPOUSE] person who has not been in contact with or received support from the parent or spouse. A court finding of child abandonment terminates parental rights and allows the child to be adopted without permission of the parents. See desertion.
ABANDONMENT the intentional giving up of rights or property with no future intention to regain title or possession.
EXAMPLE: Paul finishes reading his newspaper while waiting for a doctor to see him. Upon leaving the doctor's office, Paul intentionally decides not to take the paper with him. Paul abandons the newspaper. Had he merely forgotten the paper and returned to the office to retrieve it, he would not be considered to have abandoned the property.
ABATABLE NUISANCE see nuisance.
ABATEMENT generally, a lessening or reduction: also, either a termination or a temporary suspension of a lawsuit. An ABATEMENT OF A LEGACY means that the legacy to a beneficiary is either reduced or completely eliminated because of debts that must first be paid out of the decedent's estate. An ABATEMENT OF TAXES is a tax rebate or decrease.
ABDUCTION the criminal or wrongful act of forcibly taking away another person through fraud, persuasion or violence. (Compare kidnapping.)
ABET see aid and abet.
ABEYANCE an undetermined or incomplete state of affairs; in property law, the condition of a freehold or estate in fee when there is no existing person in whom the estate vests.
ABILITY TO STAND TRIAL see competent.
AB INITIO Lat.: from the beginning. Commonly used in referring to the time when an action or instrument or interest in property becomes legally valid.
ABNORMALLY DANGEROUS ACTIVITY see ultrahazardous activity.
ABOLISH to repeal, recall, or revoke; to cancel and eliminate entirely. This term refers especially to things of a permanent nature such as institutions, customs, and usages, as in the abolition of slavery by the Thirteenth Amendment to the United States Constitution.
ABORIGINAL TITLE see Indian law [INDIAN TITLE].
ABORTION the premature termination of a pregnancy; may be either spontaneous (miscarriage) or induced. A woman enjoys a constitutional right to have an abortion during the first trimester of her pregnancy. During the second trimester, however, the state may regulate the abortion procedure, and during the third trimester the state may even proscribe abortion except where medically necessary to preserve the health of the mother.
ABRIDGE to shorten, condense; to diminish.
ABROGATE to annul, repeal, put an end to; to make a law void by legislative repeal. ABSCOND to travel secretly out of the jurisdiction of the courts, or to hide in order to avoid a legal process such as a lawsuit or arrest.
ABSENTIA see in absentia.
ABSOLUTE LIABILITY see strict liability.
ABSQUE HOC Lat.: without this. If it had not been for this; a phrase used to introduce a denial in a pleading.
ABSTENTION [DOCTRINE] the policy that a federal district court may decline to exercise its jurisdiction and may allow a state court to decide a federal constitutional question or questions of state law. Abstention is based on comity and is intended to restrict federal court interference in state proceedings. See federalism.
EXAMPLE: A prisoner in a state prison brings a lawsuit in federal district court claiming that under federal law he is entitled to have access to a law library. The state in which the prisoner is jailed may require by law that each state prison maintain an adequate law library. The federal court applies the abstention doctrine in refusing to hear the case, instructing the prisoner to raise the issue in a state court.
ABSTRACT OF RECORD a condensed history of a case, taken from the trial court records and prepared for use by the appellate court.
ABSTRACT OF TITLE a short history of title to land, noting all conveyances, transfers, grants, wills and judicial proceedings, and all encumbrances and liens, together with evidence of satisfaction and any other facts affecting title.
EXAMPLE: John wants to sell a parcel of land to Bill. In order to protect himself from claims by any other persons concerning that parcel, Bill insists that John provide an abstract of title before Bill purchases the land. Only with that abstract can Bill be satisfied that John is the rightful owner of the property. Bill can also purchase a policy of title insurance to protect himself from any problems that develop arising from ownership in the land. The insurance will be based on the abstract of title.
ABUSE OF DISCRETION on appeal, the characterization by a reviewing court of a lower court or administrative agency decision or ruling as arbitrary and unreasonable, leading the reviewing court to overturn the decision. See discretion.
ABUSE OF PROCESS improper use of a legal process; for example, serving a summons to frighten the recipient or to prompt a response from him or her, where no suit has been filed, or filing a lawsuit for an improper purpose.
EXAMPLE: Nick desperately needs information from Sam to aid Nick in preparing for a lucrative business deal. Sam refuses to provide that information because of its confidential nature. Nick files a lawsuit against Sam so he can acquire the information by claiming that he needs it in connection with the lawsuit. Nick has thus participated in an abuse of process because he used service of summons, which is a legal process, to institute a lawsuit, for the sole purpose of acquiring information not otherwise lawfully available to him.
ABUT to adjoin, touch boundaries, border on.
ACCELERATION 1. the hastening of the time for enjoyment of a remainder interest due to the premature termination of a preceding estate; 2. the process by which, under the terms of a mortgage or similar obligation, an entire debt is to be regarded as due upon the borrower's failure to pay a single installment or to fulfill some other duty. See acceleration clause.
ACCELERATION CLAUSE a provision in a contract or document that, upon the happening of a certain event, a person's expected interest in the property will become vested sooner than expected. Often found in installment contracts, this clause, if invoked, causes the entire debt to become due upon a party's failure to make payment on time.
EXAMPLE: David signs a loan agreement with the bank, promising to repay the bank in monthly payments over a three-year period. The agreement includes an acceleration clause which provides that if Dave fails to pay the required amount for any month or months, the bank can demand that Dave repay the remaining amount of the loan in one payment.
Although acceleration clauses are frequently found in loan or mortgage agreements, they are not generally resorted to until other methods of repayment are attempted.
ACCEPTANCE the voluntary act of receiving something or of agreeing to certain terms. 1. In contract law, acceptance is consent to the terms of an offer, creating a binding contract. EXAMPLE: A homeowner contracts with an aluminum siding company to cover the house with new siding. The homeowner is not happy with two of the clauses in the contract, but the company is unwilling to change the clauses. When the homeowner signs the contract with the clauses unchanged, his signature acts as an acceptance of those clauses as they are printed. The fact that he has questioned those clauses has no effect on their validity as part of the contract. 2. In real property law, acceptance is essential to completion of a gift inter vivos. 3. ''Acceptance" by a bank of a check or other negotiable instrument is a formal procedure whereby the bank on which the check is drawn promises to honor the draft by paying the payee named on the check.
ACCESS the opportunity to approach, communicate, or pass to and from without obstruction as with an easement. Also refers to the opportunity for sexual intercourse. A husband's nonaccess to his wife may be a defense to a paternity suit, as may "multiple access" be the defense of several lovers in a paternity suit. The absence of opportunity for copying may provide a nonaccess defense to a plagiarism action. The right of access to public records includes such laws as the Freedom of Information Act.
ACCESSION something added; a right, derived from the civil law, to all that one's property produces, and to that which is united to it either naturally or artificially. The civil law required the thing to be changed completely, as grapes into wine, before the original owner could lose title. By common law the article in its altered form is still the property of the owner of the original material if the owner can prove the identity of the original material.
EXAMPLE: Cobbler John kills some of Farmer Bob's cows and turns the leather into shoes. Bob can take the shoes by accession if he can establish the leather came from his cows. ACCESSORY a person who aids or contributes to a crime as a subordinate. An accessory performs acts that aid others in committing a crime or in avoiding apprehension. In some jurisdictions an accessory is called an aider and abettor. See also accomplice; conspirator. Compare principal.
ACCESSORY AFTER THE FACT a person who harbors or assists a criminal knowing that he or she has committed a felony or is sought in connection with a crime.
ACCESSORY BEFORE THE FACT a person who incites, counsels or orders another to commit a crime, but who is not present when it is committed.
ACCIDENT an unforeseen, unexpected event; an occurrence by chance and not by design. In the context of an automobile insurance policy, the term includes any event that occurs unintentionally, even if due to negligence rather than to forces beyond anyone's control. An UNAVOIDABLE ACCIDENT is one that is not the product or fault of another, such as one caused by an act of God.
ACCOMMODATION INDORSEMENT see indorsement.
ACCOMMODATION MAKER [OR PARTY] one who, as a favor to another, signs a note as acceptor, maker or indorser, without receiving compensation or other benefit, and who thus guarantees the debt of the other person.
ACCOMPLICE one who voluntarily joins another in committing a crime. An accomplice has the same degree of liability as the one who commits the crime. See also accessory; aid and abet; conspirator. Compare principal.
ACCORD an agreement whereby one party takes, in settlement of a claim, something other than what he or she considers himself or herself entitled to. Satisfaction takes place when the accord is executed, after which there has been an accord and satisfaction. See novation; settlement.
ACCORD AND SATISFACTION the payment of money or other valuable consideration (usually less than the amount owed) in exchange for extinguishment of a debt. There must be an express or implied agreement that accepting the smaller sum discharges the obligation to pay the larger sum.
ACCOUNT a detailed statement of the nature of debt and credit between parties, arising out of contracts or some fiduciary relationship; in general business terminology, a particular client or customer. See joint account; open account.
ACCOUNT DEBTOR person who is obligated on an account.
ACCOUNT PAYABLE the amount owed by a business to its suppliers and other regular trading partners.
ACCOUNTS RECEIVABL amounts owing on open account; running accounts that are usually disclosed in the creditor's account books, representing unsettled claims and transactions not reduced to writing.
ACCOUNTING, ACTION FOR refers to an action, usually brought in equity, to secure a formal statement of account from one partner to others in order to obtain a judicial determination of the rights of the parties in a shared asset. If one or more partners feel another has been diverting funds or otherwise cheating them, they may bring an action for an accounting and ask for the appointment of a temporary receivor. Sometimes an equity judge will appoint a master to perform the accounting.
ACCOUNTING METHOD the method used by a business (cor- poration, partnership, or sole proprietorship) in keeping its books and records for purposes of computing income and deductions and determining taxable income.
ACCRUAL METHOD an accounting method under which income is subject to tax when the right to receive such income becomes fixed, and deductions are allowed when the obligation to pay becomes fixed, regardless of when the income is actually received or when the obligation is actually paid. The accrual method must be utilized by any business taxpayer that has inventory.
CASH METHOD an accounting method under which income is subject to tax when received and deductions are allowed when paid.
ACCOUNTS PAYABLE the list of moneys currently owed by the debtor to the creditor. This list is kept in the ordinary course of the debtor's business. See accounts receivable.
ACCOUNTS RECEIVABLE a list of moneys owed on current accounts to a creditor, which is kept in the normal course of the creditor's business and represents unsettled claims and transactions. See accounts payable.
ACCREDITED INVESTOR knowledgeable and sophisticated persons or institutions who qualify to purchase securities in transactions exempt from registration under the Securities Act of 1933. See private offering.
ACCRETION 1. the act of adding something to property, as when a co-heir or co-legatee dies or rejects his or her inheritance or legacy, thereby increasing the shares of the other heirs or legatees.
EXAMPLE: A father's will leaves equal amounts of a bank account to his son and daughter. If the son takes his share, the added tax burden on him will virtually eliminate all of his gains. He therefore decides to reject the legacy. The daughter benefits by the accretion in the amount of the bank account the father left her if the son's share goes to her.
2. the gradual, imperceptible addition of soil to the shore by the natural action of waters. Compare avulsion.
3. in situations involving a trust, any addition to principal or income that results from an extraordinary occurrence, that is, an event that, while foreseeable, rarely occurs.
ACCRUE 1. to accumulate, become due, as interest added to principal. ACCRUED INTEREST is the interest that has become due, whether or not it has been paid.
2. in a cause of action, to come into existence as an enforceable claim. For example, the pedestrian's cause of action against the driver accrues when the driver hits and injures the pedestrian.
ACCUSATION a charge of wrongdoing against a person or corporation, in the form of an indictment, presentment, information, etc.
ACCUSATORY INSTRUMENT refers to the initial pleading or other paper that forms the procedural basis for a criminal charge. It may take the form of an indictment, information, or accusation. If the accusatory instrument is defective, the entire proceeding will be rendered null and void.
ACCUSE to institute legal proceedings charging someone with a crime.
ACCUSED the person charged with a crime; the defendant.
ACKNOWLEDGMENT affirmation, admission or declaration recognizing ownership, indicating authenticity, accepting responsibility, or undertaking an obligation to do something, such as pay a debt.
A.C.L.U. see American Civil Liberties Union.
ACQUIESCENCE conduct that may imply consent; a tacit acceptance, often through silencewhen some objection ought to be forthcoming. Thus, if one makes a statement and another does not respond negatively, acquiescence may be inferred. An estoppel may be created in appropriate circumstances in this manner. Compare laches, which implies a neglect to do that which we would expect another to do for his or her own benefit.
ACQUIRE to gain by any means; to obtain by any endeavor such as practice, purchase, or investment; in the law of contracts, to become the owner of property; to make something one's own. This implies some positive action as opposed to a more passive obtaining such as by an accrual. See accrue.
ACQUIT 1. to set free from an accusation of guilt by a verdict of not guilty; 2. in older contract terminology, to release from a debt or other obligation.
ACQUITTAL a legal finding that an individual charged with a crime is not guilty and is therefore set free.
ACT see overt act. See also wrongful act.
ACTIO Lat.: action. Used to refer to legal proceedings, lawsuit, process, action, permission for a suit.
ACTION a court proceeding wherein one party prosecutes another party for a wrong done, or for protection of a right or prevention of a wrong.
ACTIONABLE forming the legal basis for a civil action, such as wrongful conduct.
ACTIONABLE TORT the existence of facts sufficient for legal filing requirements for a legitimate lawsuit by one injured. See cause of action.
ACTION EX CONTRACTU see ex contractu.
ACTION EX DELICTO a cause of action based on a tort.
ACTION FOR ACCOUNTING see accounting, action for.
ACTION FOR POSSESSION see possessory action.
ACTION IN CASE see trespass [TRESSPASS ON THE CASE].
ACTIO NON Lat.: no action. In pleading, a Latin term referring to a nonperformance, nonfeasance; also, a nonsuit.
ACTIONS IN PERSONAM see in personam; jurisdiction.
ACTIONS IN REM see in rem; jurisdiction.
ACTIONS QUASI IN REM see jurisdiction; quasi in rem.
ACTIVE EUTHANASIA see euthanasia [ACTIVE EUTHANASIA].
ACTIVISM see judicial activism.
ACT OF GOD a violent and catastrophic event caused by forces of nature, which could not have been prevented or avoided by foresight or prudence. Proof that an injury was caused by an act of God demonstrates that negligence was not the cause; and an act of God that makes performance of a contractual duty impossible may excuse performance of that duty. See impossibility.
ACTUAL AUTHORITY see agency.
ACTUAL CASH VALUE see market value.
ACTUAL DAMAGES see damages [ACTUAL DAMAGES].
ACTUAL EVICTION see eviction [ACTUAL EVICTION].
ACTUAL NOTICE see notice [ACTUAL NOTICE].
ACTUAL POSSESSION see possession [ACTUAL POSSESSION].
ACTUAL VALUE see market value.
ACTUARY one who calculates insurance and property costs, especially, the cost of life insurance risks and insurance premiums.
ACTUS REUS Lat.: the criminal act. More properly, the physical act that had been declared a crime. In murder, the actus reus is homicide; in burglary, it is breaking into anther's home at night; in check forgery, it is presenting the forged check for payment.
AD DAMNUM Lat.: to the damage. The amount of damages demanded in a civil suit.
ADDENDUM something added; a supplemental section of a document containing material added after the document was prepared. It may be executed Simultaneously or at a later time.
ADDITUR Lat.: it is increased. An increase by the court in the amount of damages awarded by the jury, which is done with the defendant's consent in return for the plaintiff's agreeing not to seek a new trial.
ADEEM see ademption.
ADEMPTION the extinction or withdrawal of a devise or bequest by some act of the decedent clearly indicating an intent to revoke it, e.g., by giving away during one's life the property to be devised or bequeathed.
ADHESION CONTRACT a contract so heavily restrictive of one party, while so nonrestrictive of another, that doubts arise as to whether it is a voluntary agreement. The term signifies a grave inequality of bargaining power that may lead the contract to be declared invalid. The concept often arises in standard-form printed contracts submitted by one party to the other on a take-it-or-leave-it basis. See also overreaching; unconscionable.
AD HOC Lat.: for this, for this particular purpose. An ad hoc committee is one commissioned for a special purpose; an ad hoc attorney is one designated for a particular client in a special situation.
ADJECTIVE LAW the rules of legal practice and procedure that make substantive law effective. Adjective law determines the methods of enforcing the legal rights created and defined by substantive law. For instance, service of process is a matter of adjective law.
ADJOURN to postpone; to delay briefly a court proceeding through recess. An adjournment for a longer duration is termed a continuance. A session postponed indefinitely is termed an ADJOURNMENT SINE DIE. See sine die.
The term has a special meaning in the rules of legislatures which adjourn between legislative sessions, but recess for periods, of whatever duration, within a single session.
ADJUDICATION the determination of a controversy and pronouncement of judgment.
ADJUSTED BASIS see basis [ADJUSTED BASIS].
ADJUSTER one who determines the amount of an insurance claim and then makes an agreement with the insured as to a settlement.
AD LITEM Lat.: for the suit. For the purposes of the lawsuit being prosecuted. See guardian [GUARDIAN AD LITEM].
ADMINISTRATION FOR NATIVE AMERICANS see Indian law [ADMINISTRATION FOR NATIVE AMERICANS].
ADMINISTRATIVE AGENCY see regulatory agency.
ADMINISTRATIVE HEARING see hearing.
ADMINISTRATIVE LAW law created by administrative agencies by way of rules, regulations, orders, and decisions.
ADMINISTRATIVE LAW JUDGE the presiding officer at an administrative hearing, whose power is essentially one of recommendation. In the federal system, he can administer oaths, issue subpoenas, rule on evidence, take depositions and make or recommend decisions, which can be appealed first to the federal agency for which he or she hears cases and then to a court of law.
ADMINISTRATIVE PROCEDURE ACT [APA] an act designed to create uniformity and provide guidelines regarding the rule-making and adjudicative proceedings of administrative agencies, intra-agency and judicial review, public access to agency rules and decisions, and personal information collected by an agency.
ADMINISTRATOR someone appointed to handle the affairs of a person who has died intestate, that is, without leaving a will. If the decedent left a will, an executor performs the same function.
ADMIRALTY AND MARITIME JURISDICTION jurisdiction over all actions related to events occurring at sea, including transactions relating to commerce and navigation, to damages and injuries upon the sea, and to all maritime contracts, and torts. In most cases, admiralty and maritime jurisdiction in the U.S. is given to the federal courts.
ADMIRALTY COURTS tribunals that hear cases involving maritime law, the law governing disputes arising on or in relation to seagoing ships.
ADMIRALTY LAW see maritime law.
ADMISSIBLE EVIDENCE evidence that may be introduced in court to aid the trier of fact—i.e. , the judge or jury—in deciding the merits of a case. Each jurisdiction has established rules of evidence to determine what evidence is admissible. A judge may exclude otherwise admissible evidence when he or she determines that its probative value is outweighed by such factors as undue consumption of time, prejudice, confusion of issues or a danger that the jury will be misled. A lurid, gory photograph, for example, depicting the scene of the crime, the weapon used or the injury to the victim may have very high probative value as to several issues in a criminal trial, but since it may cause undue prejudice in the minds of the jurors, it will be excluded if there is any other way to prove the necessary facts.
ADMISSION the voluntary acknowledgment that certain facts are true; a statement by the accused or by an adverse party that tends to support the charge or claim against him or her but is not necessarily sufficient to establish guilt or liability.
In civil procedure, an admission is a pretrial discovery device by which one party asks another for a positive affirmation or denial of a material fact or allegation at issue.
ADMISSION BY A PARTY-OPPONENT see declaration against interest.
ADMIT to permit into evidence. A judicial determination to admit some evidence and to exclude other evidence is a function of the perceived usefulness such evidence will have on the outcome of the case. See relevancy. Admit can also mean acknowledged, as in the accused admitted being present at the scene of the crime. See admission.
ADMIT TO BAIL to permit an accused person to be released from custody until trial upon posting of sufficient surety (bail).
ADMIT TO PRACTICE to certify by a court that a lawyer possesses the required qualifications to practice law within that jurisdiction. An admission pro hac vice is for a limited purpose.
ADMIT TO THE BAR see ADMIT TO PRACTICE above.
ADOPT to agree to, appropriate, borrow, derive from, make use of; the formal process terminating legal rights between a child and his or her natural parents and creating new rights between the child and the adopting parents. See adoption.
ADOPTION the legal process by which the parent/child relationship is created between persons not so related by blood. The adopted child becomes the heir and is entitled to all other privileges belonging to a natural child of his adoptive parent.
ADR see alternative dispute resolution; American Depository Receipt.
AD TESTIFICANDUM Lat.: for testifying. A person sought ad testificandum is sought to appear as a witness. See subpoena [AD TESTIFICANDUM].
ADULT a person who has reached the age of majority.
ADULTERY voluntary sexual intercourse between a married person (or, under common law, a married woman) and someone other than his or her spouse. Adultery is grounds for divorce, in which case the person who committed the act with the estranged spouse is called a CORRESPONDENT; it is also a criminal offense.
AD VALOREM Lat.: according to value. Commonly used to designate an assessment of taxes against property at a certain rate upon its value.
AD VALOREM TAX see tax [VALUE ADDED TAX].
ADVANCE moneys paid before payment is legally due, such as to an author for a novel yet to be written.
ADVANCEMENT a gift given by a parent to his or her child that is intended to represent all or part of the child's share of the estate in the event the parent dies intestate.
EXAMPLE: The mother's will provides that her son receive $20,000 upon her death. During her life, the son requires money to start up his new business. The mother gives him $10,000 without requiring repayment but informs the son that the money reduces the amount to which he will be entitled upon her death. The $10,000 constitutes an advancement.
ADVANCE SHEETS printed judicial opinions published in paperback or loose-leaf form prior to being incorporated into a bound volume with other reported cases in a reporter series. The volume and page number of the advance sheet is usually the same as its future bound counterpart for ease in citation. Compare SLIP OPINION, which is an individual judicial decision published after its issuance by the court and prior to its incorporation into advance sheets.
ADVERSARY opponent or litigant in a legal controversy or litigation. See adverse party. ADVERSARY PROCEEDING a hearing involving a controversy between two opposing parties, the outcome of which is expected to be favorable to only one of the parties.
ADVERSE INTEREST an interest contrary to and inconsistent with that of some other person.
ADVERSE PARTY the opposing party in a lawsuit. See adversary.
ADVERSE POSSESSION a method of acquiring legal title to land through actual, continuous, open occupancy of the property, for a prescribed period of time, under claim of right, and in opposition to the rights of the true owner. See hostile possession; notorious possession.
EXAMPLE: Jim owned an empty piece of land next to his house. Paul, a neighbor, built an extension on his home which overlapped a considerable amount of Jim's land. For over 15 years, Jim never said anything to Paul about building on his property, but after a dispute arose, Jim told Paul to remove any part of the extension that was on Jim's land. A court would find that Paul's continuous use of the property, which Jim always knew about, meant that Paul had legal title to the land by adverse possession.
ADVERSE WITNESS see witness [ADVERSE [HOSTILE] WITNESS].
ADVICE AND CONSENT term relating to the provision of the Constitution requiring the President to have approval (advice and consent) of two-thirds of the Senate before entering into treaties or before appointing federal judges or Supreme Court justices. See Treaty Clause.
ADVISORY OPINION a formal opinion by a judge, court or law officer upon a question of law submitted by a legislative body or government official but not presented in an actual court case or adversary proceeding. Such an opinion has no binding force as law.
ADVOCACY the active taking up of a legal cause; the art of persuasion. A legal advocate is a lawyer.
A.F.D.C. see social security [AID TO FAMILIES WITH DEPENDENT CHILDREN]. AFFECTED WITH A PUBLIC INTEREST see public interest [AFFECTED WITH A PUBLIC INTEREST].
AFFIANT a person who makes and signs a written statement under oath [affidavit]. AFFIDAVIT a written statement made under oath before an officer of the court, a notary public or other person legally authorized to certify the statement.
EXAMPLE: As part of the defendant's sentence, the judge intends to include a large dollar amount for restitution to the victim. Rather than conduct a trial to determine the defendant's ability to pay the fine, the judge permits the defendant to file an affidavit outlining his financial situation. The affidavit also includes the defendant's name, address, age and other technicalities required by law, and an acknowledgment of the truthfulness of the statements made. A legally authorized person is required to administer an oath to the signor (called the affiant) and witness his signature.
AFFINITY attraction existing between persons; penchant. Also, a term used to describe a relationship created by marriage.
DIRECT AFFINITY would exist between a wife and her husband's brother.
SECONDARY AFFINITY would exist between a wife and her husband's brother's wife.
COLLATERAL AFFINITY would exist between a wife and her husband's collateral relatives such as uncles or cousins.
AFFIRM to approve or confirm; refers to an appellate court decision that a lower court judgment is correct and should stand.
AFFIRMATION a person's indication that one affirms the truth of one's statement. An affirmation serves the same purpose as an oath, in which a person swears the truth of the statement made. When persons object to making an oath on religious or ethical grounds, an affirmation is commonly accepted in the place of an oath. A person who makes an affirmation is subject to the same penalties for perjury as a person who makes an oath.
AFFIRMATIVE ACTION a positive step taken to correct conditions resulting from past discrimination or from violations of a law.
AFFIRMATIVE ACTION PROGRAMS hiring practices and other employment programs adopted to eliminate discrimination in the employment of minority persons. Such programs are required by federal law.
AFFIRMATIVE DEFENSE see defense.
AFFIRMATIVE EASEMENT see easement [AFFIRMATIVE EASEMENT].
AFFIRMATIVE RELIEF that relief granted a defendant (D) in a situation in which the defendant might maintain an action entirely independent of plaintiff's (P's) claim, and which claim D might proceed to establish and recover even if P abandoned his or her cause of action, or failed to establish it. In other words, D's answer must be in the nature of a cross-claim, thereby rendering the action defendant's as well as plaintiff's.
AFFIX l. to attach to. In real estate, to attach something permanently to the land (e.g., a tree or an addition to a building). 2. to inscribe (e.g., a signature is affixed to a document).
AFIS see fingerprint [AFIS].
AFORETHOUGHT see malice aforethought.
A FORTIORI Lat.: with stronger reason. An inference that because a certain conclusion or fact is true, then the same reasoning makes it even more certain that a second conclusion is true.
EXAMPLE: Dan is accused of aiding in a bank robbery in which all of the participants were over six feet tall. One suspect has already been cleared by police because he is only five feet six inches. Since Dan is only five feet two inches, a fortiori he could not have participated in the robbery and will also be cleared.
AFTER-ACQUIRED PROPERTY 1. in commercial law, property acquiredby a debtor after he has entered into an agreement in which other property is put up as security for a loan. Commonly used in security agreements, such a clause subjects any additional property to the creditor's mortgage or other interest and makes it clear that improvements, repairs, and additions made after the agreement are included as part of the security. 2. in bankruptcy law, property acquired by the bankrupt after he or she has filed to be declared a bankrupt. This property is generally free of all claims of the bankrupt's creditors.
AFTER-ACQUIRED TITLE a property law doctrine that says that if a person without good title to land sells it and then subsequently gets good title to it, the title will automatically go to the one who had bought the land.
AFTER-THE-FACT see accessory [ACCESSORY AFTER-THE-FACT].
AGAINST PUBLIC POLICY see public interest [AGAINST PUBLIC POLICY].
AGAINST THE [MANIFEST] [WEIGHT OF THE] EVIDENCE a determination by the trial judge that the jury's verdict is against the clear weight of the evidence presented, is based upon false evidence, or will result in a miscarriage of justice, or that the jury has acted mistakenly or improperly, in which case it is his or her duty, upon motion, to set aside the verdict and grant a new trial. See n.o.v. Compare directed verdict.
AGE DISCRIMINATION the denial of privileges as well as other unfair treatment of employees on the basis of age, which is prohibited by federal law under the Age Discrimination Unemployment Act of 1967. This act was amended in 1978 to protect employees up to 70 years of age.
AGENCY a relationship in which one person (agent) acts on behalf of another (principal) with the authority of the latter. Compare partnership.
AGENT one who is authorized by another person to act in that person's behalf. The acts of an agent are binding on his principal.
EXAMPLE: Kim, an artist, instructs Dan to sell her paintings to various art galleries and to private parties. Dan is considered Kim's agent, regardless of whom he sells to, since he will have apparent authority to act on her behalf.
AGE OF CONSENT age set by statute at which persons may marry without parental consent. Also refers to age at which an actor may consent to sexual intercourse, and below which age another commits an offense such as statutory rape or sexual assualt, even if the sexual conduct is engaged in voluntarily by both parties. An erroneous belief that another is at or above the age of consent is generally not a defense.
EXAMPLE: Ashley, 19, meets Lee, 14, and thinks Lee looks 18. They have consentual intercourse. Ashley is nonetheless guilty of statutory rape.
AGE OF MAJORITY see majority, age of.
AGGRAVATED ASSAULT see assault.
AGGRAVATING CIRCUMSTANCES special circumstances tending to increase the severity of the crime charged (comparing sexual assault with aggravated sexual assault on a minor) or the severity of punishment. Enhanced punishment may be applied for offenses involving murder for hire or other crimes for profit such as arson; extreme cruelty or depravity; substantial prior criminal record; failure of rehabilitative efforts; particular vulnerability of the victim due to advanced age, extreme youth, or disability; and many other factors that may be considered by the court. Compare mitigating circumstances.
AGGREGATE a total of all the parts; the whole, the complete amount; also, to combine, as to aggregate several causes of action in a single suit; similarly, to aggregate many persons whose causes of action are closely related to a class action. See joinder.
AGGRIEVED PARTY one who has been injured or has suffered a loss. A person is aggrieved by a judgment, order or decree whenever it operates prejudicially and directly upon his or her property, monetary or personal rights.
AGREEMENT mutual assent between two or more legally competent persons, ordinarily leading to a contract. In common usage, it is a broader term than contract, bargain or promise, since it includes executed sales, gifts and other transfers of property, as well as promises without legal obligation. While agreement is often used as a synonym for contract, some authorities narrow it to mean only mutual assent.
AID AND ABET to knowingly encourage or assist another in the commission or attempted commission of a crime. See also accessory; accomplice; conspirator. Compare principal.
AID TO FAMILIES WITH DEPENDENT CHILDREN see social security [AID TO FAMILIES WITH DEPENDENT CHILDREN].
AIR PIRACY see hijacking.
AIR RIGHTS the legal ownership of land includes the ownership of the airspace above the land. A tree that has branches extending over a neighbor's property may therefore interfere with the neighbor's air rights. The rights are not limitless since, for example, airplanes are allowed to fly at certain altitudes. Conversely, the rights do not allow an owner to pollute the air.
AIRSPACE see air rights.
AJ. abbreviation for Associate Judge or Justice.
A.K.A. see alias.
ALEATORY uncertain; risky. An ALEATORY CONTRACT is an agreement in which performance by one party depends upon an uncertain or contingent event—for example, a fire insurance contract is aleatory because it is uncertain when or if benefits willbe paid.
ALIAS ''otherwise known as"; an indication that a person is known by more than one name. "AKA" and "a/k/a" mean "also known as" and are used in indictments to introduce the listing of an alias.
ALIBI an excuse that proves the physical impossibility that a suspected person could have committed the crime.
ALIEN one who is not a citizen of the country in which he lives. A RESIDENT ALIEN is a person who has been admitted to permanent resident status but has not been granted citizenship. An ILLEGAL ALIEN is a noncitizen who has not been given permission by immigration authorities to reside in the country in which he is living.
ALIENATION in real property law, the voluntary transfer of title and possession ofreal property to another person. The law recognizes the power to alienate (or transfer) property as an essential ingredient of fee simple ownership of property and generally prohibits unreasonable restraints on alienation.
ALIENATION OF AFFECTIONS a tort based upon willful and malicious interference with the marriage relationship by a third party, causing mental anguish, loss of social position, disgrace, embarrassment or actual monetary loss. (Most states no longer recognize this as the basis for a lawsuit.) If the interference is in the nature of adultery, the tort is called CRIMINAL CONVERSATION. However, it may result from lesser acts which deprive the other spouse of affection from his marital partner. See consortium.
ALIENATION, ORDER OF see marshaling [marshalling].
ALIEN REGISTRATION see green card.
ALIMONY court-ordered payment for the support of one's estranged spouse in the case of divorce or separation. For federal income tax purposes, alimony payments are deductions to the paying spouse and income to the receiving spouse if they are payable over an indefinite period, or over a definite period lasting more than ten years.
CHILD SUPPOR the amount of money the court requires one spouse to pay to the other who has custody of the children born of the marriage, may be imposed by the court with or without an award of alimony.
ALIQUOT Lat.: an even, fractional part of the whole. In a trust, it is a particular fraction of the whole property involved, as distinguished from a general interest.
ALI TEST see insanity [ALI TEST].
ALIUNDE Lat.: from another source; from elsewhere; from outside. ALIUNDE RULE refers to the doctrine that a verdict may not be impeached by evidence offered by a juror unless the foundation for introducing the evidence is laid first by competent, admissible evidence from another source.
ALLEGATION in a pleading, an assertion of fact; a statement of the issue that the contributing party expects to prove. See averment.
ALLEN CHARGE an instruction by the court to a jury that is having difficulty reaching a verdict in a criminal case, to encourage the jury to make a renewed effort to arrive at a decision. Because it may have a coercive effect upon the jury, some jurisdictions no longer permit the instruction to be given after the jury reports a deadlock.
ALLOCUTION the requirement in common law that, following the verdict of conviction, the judge ask the defendant to show legal cause why sentence should not be pronounced. It continues to be part of the sentencing procedure in a majority of states and is a mandatory part of a valid sentencing in the federal system. The modern allocution does not ask the defendant why sentence should not be imposed but rather asks if he or she has anything to say in his or her own behalf in mitigation of punishment. See mitigating circumstances.
ALLODIAL owned freely; not subject to the restriction on alienation that existed in feudal law. ALLOWANCE see depletion [DEPLETION ALLOWANCE].
ALLUVION a deposit of sedimentary material (earth, sand, gravel, etc.) that has accumulated gradually and imperceptibly along the bank of a river or the sea. Alluvion is the result of accretion and is considered part of the property to which it has become attached. See also avulsion. ALTERATION see material alteration.
ALTER EGO Lat: the other self. Under the doctrine of alter ego, the law will disregard the limited personal liability one enjoys when he or she acts in a corporate capacity and will regard the act as his or her personal responsibility. To invoke the doctrine, it must be shown that the corporation was a mere conduit for the transaction of private business and that no separate identity of the individual and the corporation really existed.
ALTERNATIVE DISPUTE RESOLUTION [ADR] alternatives to the slow and costly process of litigation. Includes arbitration, conciliation, mediation, and summary proceedings. Some of these processes, such as mediation and arbitration, are being used by court systems to attempt to resolve disputes before trial.
ALTERNATIVE PLEADING in common law, a pleading that allegedfacts so inconsistent that it was difficult to determine upon which set of facts the person pleading intended to rely. Alternative pleading is generally permitted under modern procedure.
EXAMPLE: Paul is accused of murder. At his trial, he alternatively pleads the insanity defense and self-defense. The two are alternatives: the insanity plea means that Paul admits the murder but claims that his mental state prevents him from being criminally responsible, while the plea of self-defense means that he was justified in using deadly force in the particular circumstance.
ALTERNATIVE WRIT OF MANDAMUS see preemptory writ.
AMELIORATING WASTE see waste [AMELIORATING WASTE].
AMEND to alter. One amends a statute by changing (but not abolishing) an established law. One amends a pleading by adding to or ,subtracting from an already existing pleading.
EXAMPLE: Lisa sues a manufacturing company for injuries resulting from a defect in one of their products. After she files her papers with the court, she discovers new facts which indicate that the company was negligent in developing the product. Lisa seeks to amend her pleading to include these new facts, and, as is generally the case, she is permitted to amend.
AMENDMENTS see respective entries (e.g., First Amendment).
A MENSA ET THORO see divorce [SEPARATION].
AMERICAN BAR ASSOCIATION [A.B.A.] a national organization of lawyers and law students that promotes improvements in the delivery of legal services and the administration of justice. Membership is open to any lawyer who is in good standing in any state or to any student attending an accredited law school. The AMERICAN BAR FOUNDATION is a subsidiary of the A.B.A. that sponsors and funds projects in legal research, education, and social studies.
AMERICAN BAR FOUNDATION see American Bar Association [AMERICAN BAR FOUNDATION].
AMERICAN CIVIL LIBERTIES UNION [ACLU] a national organization, founded in 1920, that seeks to enforce and preserve the rights and civil liberties guaranteed by the federal and state constitutions. Its activities include handling cases, opposing allegedly repressive legislation and publishing reports and informational pamphlets.
AMERICAN DEPOSITORY RECEIPT [ADR] a receipt issued by American banks to domestic buyers as a convenient substitute for direct ownership of stock in foreign companies. ADR's are traded on stock exchanges and in over-the-counter markets like stocks of domestic companies. Rights, offers, stock dividends and similar adjustments to the underlying shares are paid in cash or ADR dividends by the bank.
AMERICAN INDIAN LAW see Indian law.
AMERICAN STOCK EXCHANGE the second largest United States stock exchange, after the New York Stock Exchange. It was formerly known as the NEW YORK CURB EXCHANGE or "Curb" and is abbreviated today as either AMEX or ASE.
AMEX see American Stock Exchange.
AMICUS CURIAE Lat.: friend of the court. A qualified person who is not a party to the action but gives information to the court on a question of law. The function of an amicus curiae is to call attention to some information that might escape the court's attention. An AMICUS CURIAE BRIEF (or AMICUS BRIEF) is one submitted by someone not a party to the lawsuit, to give the court information needed to make a proper decision, or to urge a particular result on behalf of the public interest or of a private interest of third parties who will be indirectly affected by the resolution of the dispute. Thus, a court might permit a group of retarded citizens to participate in a proceeding brought by a prisoner rights group to challenge a statute authorizing theexpenditure of funds for the construction of prisons and mental health facilities, since invalidation of the statute would adversely affect the interests of retarded citizens.
AMNESTY a pardon extended to a group of persons excusing them for offenses against the government. See also executive clemency.
EXAMPLE: In an attempt to end the dissension caused by the Vietnam War, President Carter granted amnesty to all draft evaders on certain conditions. Those individuals entitled to amnesty were absolved of liability for selective service violations.
AMORTIZATION the reduction of a debt by periodic charges to assets or liabilities, such as payments on mortgages.
EXAMPLE: A landlord paves the parking lot for an apartment building. In charging each tenant rental for a parking space, the landlord amortizes the cost of the pavement so that, over a period of time, the tenant actually pays for the work. If the landlord had borrowed the money to fund the improvement, the landlord would amortize the loan by paying it back over a fixed period of time.
In accounting statements, the term usually refers to charges against investments in intangibles such as patents, copyrights, goodwill, organization, expenses, etc. Compare depreciation.
AMOUNT REALIZED see realization [GAIN OR LOSS REALIZED].
ANCIENT DEMESNE manors that were in the actual possession of the Crown during the reign of William the Conqueror and that were recorded as such in the Domesday Book. This type of tenure was abolished in England by the Law of Property Act (1922). See demesne.
ANCILLARY JURISDICTION the jurisdiction under which a federal court is permitted to decide an entire controversy (including matters which it would not have authority to consider were they raised independently) if the controversy contains other issues that the law specifically authorizes federal courts to decide. Thus, when the court has jurisdiction of the principal action, it may also hear any ancillary proceeding, regardless of any other factor that would normally determine jurisdiction. Compare pendent jurisdiction.
AND HIS HEIRS see heirs.
ANIMO Lat.: intentionally.
AMINO TESTANDI with the intention to make a will.
AMINO REVOCANDI with the intention to revoke.
AMINO REVERTENDI with the intention to return.
ANIMUS see animo.
ANNOTATION a comment upon or collection of cases citing a particular case or statute. An annotated statute is one that has the relevant cases interpreting the statute appended to it. Thus, United States Code Annotated (U.S.C.A.) or New Jersey Statutes Annotated (N.J.S.A.) are annotated versions of the official statutes of those jurisdictions. American Law Reports (A.L.R.) is an annotated set of recent cases from the various state and federal courts. The current versions are A.L.R. 4th and A.L.R. Fed.
ANNUAL REPORT a formal financial statement issued yearly. The annual report of publicly owned corporations must comply with SEC reporting requirements, which include balance sheet, income statement, and cash flow reports audited by an independent certified public accountant.
ANNUITANT one who receives the benefits of an annuity.
ANNUITY a fixed sum payable periodically, subject to the limitations imposed by the grantor—generally, either for life or for a number of years.
ANNUL to make void; to dissolve that which once existed, as to annul a marriage. Annulment wipes out or invalidates the entire marriage, whereas divorce only ends the marriage from that point on and does not affect the former validity of the marriage.
ANSWER the defendant's principal pleading in response to the plaintiff's complaint. It must contain a denial of all the allegations the defendant wishes to dispute, as well as any affirmative defenses by the defendant and any counterclaim against the plaintiff.
ANTENUPTIAL AGREEMENT see prenuptial agreement.
ANTICIPATORY BREACH breaking a contract before the actual time of required performance. It occurs when one person repudiates his contractual obligation before it is due, by indicating that he will not or cannot perform his contractual duties.
EXAMPLE: Steven contracted with a fuel oil company to supply heating oil to it. The contract called for twelve monthly deliveries over a year period. After three months, Steven realized the contract would be too costly for him to continue supplying the oil. He informed the company that he would not deliver the oil at the next delivery date. His action constitutes an anticipatory breach of his contract with the fuel oil company.
Where anticipatory repudiation is by conduct rather than by declaration, it may be called VOLUNTARY DISABLEMENT.
ANTI-DISCRIMINATION ACT see Robinson-Patman Act.
ANTI-DUMPING LAW see dumping.
ANTILAPSE STATUTES statutes that allow the heirs of a devisee or legatee who predeceases the testator to inherit what the testator had bequeathed to the deceased devisee or legatee. Under common law, a bequest lapsed upon the death of the specified recipient, so that, in particular, when a parent died before the testator/ grandparent, the grandchildren were disinherited.
ANTITRUST LAWS statutes that promote free competition by outlawing such things as monopolies, price discrimination, and collaboration, for the purpose of restraint of trade, between two or more business enterprises in the same market. The two major U.S. antitrust laws are the SHERMAN ACT and the CLAYTON ACT.
A POSTERIORI Lat.: from the most recent point of view. Relates to knowledge gained through actual experience or observation, rather thanthrough logical conclusions. Compare a priori. APPARENT AUTHORITY a reference to the doctrine that a principal is responsible for the acts of his or her agent where the principal by words or conduct suggests to a third person that the agent may act in the principal's behalf, and where the third person believes in the authority of the agent.
EXAMPLE: A business organization that sells athletic equipment used Tim, a local sports star, to advertise and promote their products. His actions made it seem that he was part of the business, and the business did nothing to qualify that image. A manufacturer contracted with Tim to supply the business with various types of equipment under their belief that Tim was a part of that business. Although the business may not want that equipment, they are forced to purchase it. Tim's apparent authority as agent of the business organization was due to the organization's acquiescence, and this false impression obliges them to act in accordance with the contract.
APPEAL a request to a higher court to review and reverse the decision of a lower court. On appeal, no new evidence is introduced; the higher court is limited to considering whether the lower court erred on a question of law or gave a decision plainly contrary to the evidence presented during trial. Unless special permission is granted by the higher court to hear an interlocutory appeal, an appeal cannot be made until the lower court renders a final judgment.
APPEARANCE the required coming into court of a plaintiff or defendant in an action either by himself or herself (PRO SE) or through an attorney. An appearance involves a voluntary submission to the jurisdiction of the court.
EXAMPLE: Sue is arrested for possessing more than 25 grams of marijuana. Once she employs an attorney, the attorney files a notice of appearance with the court stating that he or she is Sue's attorney and will represent her in the forthcoming trial.
GENERAL APPEARANCE a party's appearance at a proceeding for any reason other than for questioning the court's jurisdiction.
SPECIAL APPEARANCE an appearance for the sole purpose of questioning the jurisdiction of the court over the defendant and the authority of the court to compel his appearance for any other purpose.
EXAMPLE: A seller agrees to provide a buyer with certain goods. One clause in the contract states that, if the goods are defective, the buyer can only sue in the seller's home state. The goods turn out to be defective, but the buyer files suit in a court in the buyer's home state. The seller makes a special appearance in the court only for the purpose of challenging that court's jurisdiction based on the clause in the contract. By such an appearance, the seller does not acknowledge the court's right to entertain the buyer's suit against him.
COMPULSORY APPEARANCE an appearance compelled by service of process.
VOLUNTARY APPEARANC an appearance by one who has not been required to appear by service or process.
APPEARANCE DE BENE ESSE see de bene esse.
APPELLANT the party to a lawsuit who appeals the decision to a higher court. See plaintiff [PLAINTIFF IN ERROR]. Compare appellee.
APPELLATE COURT [APPEALS COURT] a court having authority to review the law applied by a lower court in the same case. In most instances, the trial court first decides a lawsuit, with review of its decision then available in an appellate court.
APPELLATE JURISDICTION see jurisdiction.
APPELLEE the party prevailing in the lower court who argues, on appeal, against setting aside the lower court's judgment. In some state courts this party is referred to as the respondent. See defendant [DEFENDANT IN ERROR]. Compare appellant.
APPOINTED COUNSEL see public defender; right to counsel.
APPOINTMENT OF RECEIVER the placing, by court order, of contested property in the hands of a receiver in order to protect someone's ownership or trust interests in said property or funds. For instance, the creditor of a bankrupt can have the bankrupt's assets placed in the custody of a receiver to stop the bankrupt from selling the assets for cash or to preventother creditors from seizing the assets.
APPOINTMENT, POWER OF see power of appointment.
APPORTION to divide fairly or proportionately, according to the parties' respective interests.
APPRAISAL RIGHTS a statutory remedy available in many states to minority stockholders [SHAREHOLDERS] who object to an extraordinary action taken by the corporation (such as a merger). This remedy requires the corporation to repurchase the stock of dissenting stockholders at a price equivalent to its value immediately prior to the extraordinary corporate action.
APPRAISE to estimate the value of property. Compare assess.
APPRECIATE 1. increase in value; 2. to understand the significance of something; in criminal law, used in some statutes as part of the insanity test, to signify that the defendant understands the wrongfulness of his or her conduct.
APPRECIATION the excess of the fair market value of property over the taxpayer's basis in such property.
UNREALIZED APPRECIATION the amount of appreciation in property that has not yet been subject to tax. See realization.
APPROPRIATE 1. to set apart for, or assign to, a particular purpose or use; 2. to wrongfully use or take the property of another.
APPROPRIATION the designation of funds for a specific government expenditure. APPURTENANT attached to something else. In property law, the term refers especially to the attachment of a restriction (e.g., an easement or covenant) to a piece of land, which benefits or restricts the owner of such land in his use and enjoyment. To illustrate: if A allows B the right-of-way over A's land so that B has access to the highway, this is an easement appurtenant to B's land. See easement [EASEMENT APPURTENANT].
A PRIORI Lat.: from the former, from the first. Modern usage has deviated significantly from the Latin. An a priori conclusion or judgment is one that is necessarily true, that is neither proved by nor capable of being disproved by experience, and that is known to be true by a process of reasoning independent of all factual evidence.
The term is commonly used to indicate a judgment that is widely believed to be certain, or that is introduced presumptively, without analysis or investigation. Thus to accuse someone of having assumed a fact or conclusion a priori is often to disparage him or her for having failed to support a judgment through evidence or analysis. Compare a posteriori.
ARBITER Lat.: referee. A person (other than a judicial officer) appointed by the court to decide a controversy according to the law. Unlike an arbitrator, the arbiter needs the court's confirmation of his decision for it to be final.
ARBITRAGE a financial transaction involving the simultaneous purchase of currency, securities or goods in one market and their sale in a different market with a profitable price or yield differential. True arbitrage positions are completely HEDGED—that is, the performance of both sides of the transaction is guaranteed at the time the position is assumed—and are thus without risk of loss.
ARBITRARY AND CAPRICIOUS see abuse of discretion.
ARBITRATION submitting a controversy to an impartial person, the arbitrator, chosen by the two parties in the dispute to determine an equitable settlement. Where the parties agree to be bound by the determination of the arbitrator, the process is called BINDING ARBITRATION. In labor law, arbitration has become an important means of settling disputes, and the majority of labor contracts provide for arbitration of disputes over the meaning of contract clauses.
COMPULSORY ARBITRATION in whichthe parties are forced to agree, is generally not provided for in federal law. The states, however, have increasingly provided for compulsory arbitration in areas beyond the control of federal law, such as police and firefighters' contracts.
ARBITRATION CLAUSE a clause in a contract providing for arbitration of disputes arising under the contract. Arbitration clauses are treated as separable parts of the contract so that the illegality of another part of the contract does not nullify such agreement and a breach or repudiation of the contract does not preclude the right to arbitrate.
ARBITRATOR an impartial person chosen by the parties to solve a dispute between them, who is empowered to make a final determination concerning the issue(s) in controversy, who is bound only by his own discretion, and from whose decision there is no appeal.
ARGUENDO Lat.: for the sake of argument. EXAMPLE: Ace Chemical Company is accused of dumping toxic wastes in a canal outside the city. Although the company does not want to admit that it polluted the canal, for public relations reasons it is willing to pay the cleanup costs. In approaching the city to determine the dollar figure for those costs, the company will state, "Assuming, arguendo, thatwe did pollute the canal, how much will the cleanup cost?" By "assuming arguendo," the company avoids admitting guilt and moves on to the more important questions of cleanup.
ARGUMENT a course of reasoning intended to establish a position and to induce belief.
ARM'S LENGTH a relatively equal bargaining position between contracting parties, in which the agreement reached is seen as free of one-sidedness, duress, unconscionability, or overreaching by either party.
ARRAIGN to bring a defendant to court to answer the charge under which an indictment has been handed down.
ARRAIGNMENT an initial step in the criminal process in which the defendant is formally charged with an offense, given a copy of the complaint, indictment, information, or other accusatory instrument, and informed of his or her constitutional rights, including the pleas he or she may enter. Where the appearance is shortly after the arrest, it may properly be called a presentment since often no plea is taken. Compare preliminary hearing.
ARRANGEMENTS see bankruptcy [CHAPTER 11 REORGANIZATION].
ARRAY see challenge [CHALLENGE TO JURY ARRAY].
ARREARS that which is unpaid although due to be paid. A person in arrears is behind in payment. ARREST to deprive a person of liberty by legal authority; in the technical criminal law sense, to seize an alleged or suspected offender to answer for a crime.
ARREST OF JUDGMENT the court's withholding of judgment because of some error in the record.
ARREST RECORD see criminal record.
ARSON the willful and malicious burning of another's house; sometimes expanded by statute to include acts similar to burning (such as exploding) or the destruction of property other than dwellings.
ARTICLES OF IMPEACHMENT a formal statement of the grounds upon which the removal of a public official is sought, similar to an indictment in an ordinary criminal proceeding. In the federal system, articles of impeachment are voted by the House of Representatives, with the trial occurring before the Senate.
ARTICLES OF INCORPORATION the document that creates a private corporation, according to the general corporation laws of the state.
ARTIFICE a fraud or a cunning device used to accomplish some wrong; usually implies craftiness or deceitfulness.
ARTIFICIAL PERSON see corporation.
ART, WORDS OF see words of art.
AS A MATTER OF LAW see operation of law.
ASE see American Stock Exchange.
AS IS a commercial term denoting agreement that buyer shall accept delivery of goods in the condition in which they are found on inspection prior to purchase, even if they are damaged or defective.
ASPORTATION see caption; trespass [TRESPASS DE BONIS ASPORTATIS].
ASSAULT an attempt or apparent attempt to inflict bodily injury upon another by using unlawful force, accompanied by the apparent ability to injure that person if not prevented. An assault need not result in a touching so as to constitute a battery. Thus, no physical injury need be proved to establish an assault. An assault may be either a civil or criminal offense. Some jurisdictions have defined criminal assault to include battery—the actual physical injuring.
AGGRAVATED ASSAULT an assault where serious bodily injury is inflicted on the person assaulted; an assault with a dangerous or deadly weapon.
ASSEMBLY, UNLAWFUL see unlawful assembly.
ASSESS 1. to determine the value of something;2. to fix the value of property on the basis of which property taxes will be calculated. Compare appraise.
ASSESSMENT OF DEFICIENCY in general, the amount of tax determined to be due after an appellate review within the Internal Revenue Service and a Tax Court adjudication (if requested).
JEOPARDY ASSESSMENT an immediate assessment of the deficiency by the Internal Revenue Service without appellate review and Tax Court hearing, which is permitted if, in the opinion of the Internal Revenue Service, the assessment and collection of a deficiency would be jeopardized by delay.
ASSET anything owned that has monetary value; any interest in real property or personal property that can be used for payment of debts. EXAMPLE: Jane wants to borrow a sizeable amount of money to build a summer house in the mountains. Although banks are generally unwilling to lend money for such projects, they will lend to Jane because she has substantial assets, including ownership of several buildings and a large number of stocks. Such assets are generally pledged as collateral. With respect to real property, Jane might give the bank a mortgage as a form of collateral. Assets appear as one of three major balance sheet categories and are counterbalanced by liabilities and net assets. In corporations, net assets are usually referred to as shareholder's equity or book value.
CURRENT ASSETS for accounting purposes, property that can be easily converted into cash, such as marketable securities, accounts receivable (goods or services sold but not paid for) and inventories (raw materials, work in process and finished goods intended for future sale).
FIXED ASSETS in accounting, property used for production of goods and services, such as plant and machinery, buildings, land, mineral resources. Other categories of assets include intangibles, such as goodwill, patent rights and acquisition costs in excess of fair market value, and tangibles, such as long-term investments in other companies, long-term receivables, insurance owned.
ASSET VALUE see net asset value.
ASSIGN to transfer one's interest in property, contract or other rights to another.
ASSIGNED COUNSEL see public defender; right to counsel.
ASSIGNED RISK in automobile insurance, a class of persons to whom insurance companies will not issue policies voluntarily, usually because their record of prior accidents has made them a high risk, and who therefore are assigned by state law to insurance companies and must pay higher rates. Many states have FINANCIAL RESPONSIBILITY LAWS that prohibit such persons from driving unless adequate insurance has been obtained.
ASSIGNMENT the transfer to another of one's interest in a right or property.
ASSIGNMENT FOR BENEFIT OF CREDITORS a debtor's transfer of his property to another party to be held in trust and applied to the debts of the assignor (debtor).
ASSIGNMENT OF A LEASE the transfer of the lessee's entire interest in the lease, by which the assignee of the lease becomes primarily liable for any rent required to be paid under the lease, and the assignor (original lessee) remains secondarily liable for the rent if the assignee does not pay it.
ASSIGNMENT OF ERROR the appellant's declaration or complaint against the trial judge that he committed an error in the lower court proceedings. Assignments of error establish the issues to be argued on appeal.
ASSIGNMENT OF INCOME a taxpayer's direction that income earned by him or her be paid to another person, so that it will be considered the other person's income for federal tax purposes. An effective assignment of income would be to transfer a share of dividend-paying stock before the dividend declaration date—in such a case the dividend would be taxed to the transferee; an ineffective assignment of income would be to transfer the share after the dividend declaration date—here the dividend would be taxed to the transferor.
ASSIGNS [ASSIGNEES] all those who take from another by deed upon the transfer of real property, or under a will, or, in the absence of a valid will, those who inherit the property of the intestate by operation of law. See descent.
ASSISTED SUICIDE see euthanasia [ACTIVE EUTHANASIA].
ASSIZE ancient writ issued from a court of assize to the sheriff for the recovery of property; actions of the special court that issues the writ. See Court of Assize and Nisi Prius.
ASSOCIATE JUSTICE a member of the United States Supreme Court, other than the Chief Justice; the title held by a judge, other than the presiding judge, on the highest court of some states.
ASSOCIATION a group of persons joined together for a certain object.
ASSUMPSIT Lat.: he promised; he undertook. In contract law, the term signifies an express or implied promise or undertaking, made either orally or in writing not under seal. The term refers especially to one of the old forms of action in common law comprising an action in equity and applicable to almost every case in which money had been received that in equity and good conscience ought to have been refunded.
ASSUMPTION OF MORTGAGE see mortgage.
ASSUMPTION OF RISK 1. in torts, an affirmative defense used by the defendant in a negligence suit, claiming that plaintiff had knowledge of an obviously dangerous condition or situation and yet voluntarily exposed himself to the hazard, thereby relieving the defendant of legal responsibility for any resulting injury;2. in contract law, the agreement by an employee to assume the risks of ordinary hazards arising out of his occupation. Contributory negligence arises when plaintiff fails to exercise due care, while assumption of risk arises regardless of the care used and is based fundamentally on consent.
ASSURANCE see covenant [COVENANT OF FURTHER ASSURANCE].
ASSURED see insured.
ASYLUM a shelter for the unfortunate or afflicted—the insane, the crippled, the poor. A POLITICAL ASYLUM is a state that accepts a citizen of another state to shelter him from prosecution by that other state.
AT BAR see bar.
AT EQUITY see equity.
AT ISSUE see issue.
AT LAW that which pertains to or is governed by the rules of law, as distinguished from the rules of equity; according to the rules of the common law. In England, and later in the United States, courts of law developed strict rules establishing the kinds of causes of action that could be maintained and the kinds of remedies that were available. Courts of equity established different rules and remedies, partly to mitigate the rigors of the law courts. ''At law" and "in equity" thus refer to two different bodies of jurisprudence. The term also may be used to mean by operation of law.
ATROCIOUS outrageously wicked and vile. An atrocious act demonstrates depraved and insensitive brutality and exhibits a senselessly immoderate use of extreme violence for a criminal purpose.
ATTACHMENT a legal proceeding by which a defendant's property is taken into custody and held for payment of a judgment in the event plaintiff's demand is later established and judgment is rendered in his favor.
ATTAINDER in common law, the elimination of all civil rights and liberties, and the forfeiture of property, caused by one's conviction for a felony or capital offense. See bill of attainder.
ATTAINDER, BILL OF see bill of attainder.
ATTAINT to pass sentence of attainder or to be under such a sentence; more generally to be stained or degraded by a conviction. In early common law practice this referred to a writ used to challenge a jury verdict.
ATTEMPT an overt act, beyond mere preparation, moving directly toward the actual commission of a criminal offense. The attempt to accomplish a criminal act is often made a crime itself, separate and distinct from the crime that is attempted. See inchoate. Compare conspiracy.
ATTENDANT CIRCUMSTANCES loose facts surrounding an event. In criminal law the definitions of crimes often require the presence or absence of attendant circumstances. For example, statutory rape requires that the minor be under the age of consent, the age of the minor being the attendant circumstance.
ATTEST to affirm as true; to sign one's name as a witness to the execution of a document; to bear witness to. EXAMPLE: Where a person writes a will, that person must understand the nature of what he or she is doing when the will is signed and what the various provisions of the will mean. The laws of most states require that at least two persons attest to, or formally confirm, the writer's ability to meet these requirements. These persons are witnesses to the will.
ATTESTATION the act of authentication by witnessing an instrument of writing, at the request of the party making the instrument, and subscribing it as a witness. Attestation entails witnessing and certification that the instrument exists.
ATTORNEY may refer to an attorney in fact or attorney at law. An ATTORNEY IN FACT is one who is an agent or representative of another given authority to act in that person's place and name. The document giving the attorney authority is called a power of attorney. The general reference to an attorney is usually intended to designate an ATTORNEY AT LAW. This is one of a class of persons admitted by the state's highest court or by a federal court to practice law in that jurisdiction. The attorney is regarded as an officer of the court and is always subject to the admitting court's jurisdiction as to his or her ethical and professional conduct. Violations of those standards of conduct may result in discipline of the attorney in the form of censure, suspension, or disbarment. See also counsel [COUNSELLOR]; district attorney; public defender.
ATTORNEY-CLIENT PRIVILEGE see privileged communication.
ATTORNEY GENERAL the chief law enforcement officer of the federal government or of a state government.
ATTORNEY OF RECORD see of record [ATTORNEY OF RECORD].
ATTORNEY, POWER OF see power of attorney.
ATTORNEY'S FEE the attorney's charge for services in representing a client; also, the additional award made by the court to the successful party in a lawsuit to compensate for the reasonable value of the services of the attorney.
ATTRACTIVE NUISANCE the doctrine in tort law which holds that one who maintains something dangerous on his premises that is likely to attract children is required to reasonably protect the children against the dangers of that attraction. Thus, one has a duty to fence swimming pools, to remove doors from discarded refrigerators, to enclose partially constructed buildings and to be sensitive to other potentially dangerous conditions that attract curious children.
AUCTION see sale [AUCTION SALE].
AUDIT an inspection of the accounting records and procedures of a business, government unit or other reporting entity by a trained accountant, for the purpose of verifying the accuracy and completeness of the records. It may be conducted by a member of the organization (internal audit) or by an outsider (independent audit). EXAMPLE: Since its inception, the welfare agency has been criticized for mismanagement of federal money by the agency directors and for allowing people to file double and sometimes triple claims. The General Accounting Office, an agency of the federal government, agrees to conduct an audit to determine if these allegations are true and to trace where the money had been spent. See audit of return.
AUDIT OF RETURN a review by an agent of the Internal Revenue Service of the tax return filed by the taxpayer and of the books and records supporting the information contained on the tax return. See return, income tax.
AUDITOR 1. a public officer charged by law with the duty of examining and verifying the expenditure of public funds; 2. an accountant who performs a similar function for private parties.
AUTHENTICATE certify; corroborate; to prove genuine. Authentication may be established by witness testimony or by an expert.
AUTHORITY the permission or power delegated to another. This may be express or implied. See de facto [DE FACTO AUTHORITY]. If express, it is usually embraced in a document called a power of attorney. IMPLIED AUTHORITY stems from a relationship such as that of principal and agent. If the agent does not have EXPRESS AUTHORITY by some writing, he or she nonetheless will have apparent authority. If the authority is given to the agent for a consideration, it is said to be an AUTHORITY COUPLED WITH AN INTEREST. Where not to infer an authority would result in an injustice, the law will imply an authority so as not to mislead another. In this circumstance the law speaks of an AUTHORITY BY ESTOPPEL. Where the principal intended the agent to have the right to act on the principal's behalf, the authority is called an ACTUAL AUTHORITY. The term may also refer to the jurisdiction of a court such as "within the court's authority." It is also used to denote judicial or legislative precedent.
AUTHORIZED ISSUE the total number of shares of capital stock that a corporation may issue under its charter.
AUTOMOBILE, DEATH BY see homicide; manslaughter [DEATH BY AUTOMOBILE].
AUTOMOBILE GUEST STATUTE see guest statute.
AUTOPSY the dissection of a cadaver to determine the cause of death. It may involve the inspection of important organs in order to determine the nature of a disease or abnormality.
AVERMENT a positive statement or allegation of facts in a pleading, as distinguished from one based on reasoning or on inference.
AVOID to cancel or make void; to prevent a certain result.
AVOIDANCE see confession and avoidance.
AVOIDANCE OF TAX the method by which a taxpayer reduces his tax liability without committing fraud—e.g., by investing in a tax shelter. Compare evasion of tax.
AVULSION an abrupt change in the course or channel of a stream that forms the boundary between two parcels of land, resulting in an apparent loss of part of the land of one riparian landowner and an apparent increase in the land of the other. The sudden and perceptible nature of this change distinguishes avulsion from accretion: when the change is abrupt, as in avulsion, the boundary between the two properties remains unaltered. When the changes are brought about by accretion—i.e., gradually, as a result of natural causes—the changed boundaries are recognized, and ownership interests are affected.
AWOL see desertion [ABSENT WITHOUT LEAVE].
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