Black's Law Dictionary - PDF Free Download (2022)

Pronunciation Guide

m as in motion, malice

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

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

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

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

ow as in allow, oust

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

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

r as in revolt, terror

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

Black's Law Dictionary® Ninth Edition

Black's Law Dictionary®

Ninth Edition

Bryan A. Garner Editor in Chief

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

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Black's Law Dictionary Ninth Edition

EDITOR IN CHIEF

Bryan A. Garner President, LawProse, Inc.

Distinguished Research Professor ofLaw

Southern Methodist University

Dallas, Texas

ASSOCIATE EDITOR

ASSOCIATE EDITOR

Tiger Jackson

Jeff Newman

LawProse, Inc. Dallas, Texas

LawProse, Inc. Dallas, Texas

CONTRIBUTING EDITORS

Karolyne H. Cheng

Herbert J. Hammond

Brian Melendez

Dallas, Texas

Dallas, Texas

Minneapolis, Minnesota

Ann Taylor Schwing

Fred Shapiro

Joseph F. Spaniol Jr.

Minneapolis, Minnesota

New Haven, Connecticut

Bethesda, Maryland

PRONUNCIATION EDITOR

Charles Harrington Elster San Diego, California

PANEL OF PRACTITIONER CONTRIBUTORS Page vi

PANEL OF ACADEMIC CONTRIBUTORS Page ix

v

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

Daniel Alexander Los Angeles, California

Suzanne Antley San Diego, California

Leslie Karyn Arfine Ridgefield, COllllecticut

John R. Armstrong II Irville, California

Brad D. Bailey Evergreell, Colorado

William P. Baker Baltimore, Maryland

Judith M. Bambace San Diego, California

Daniel P. Barer Los Angeles, California

Ben A. Baring Jr. Houston, Texas

Chad Baruch Dallas, Texas

Isabel Barzun New York, New York

Eric S. Basse Bremerton, Washington

Laurie T. Baulig Lancaster, Pennsylvania

HughC. Beck Littleton, Ohio

Adron W. Beene San Jose, California

Bill C. Berger Denver, Colorado

Xanthe M. Berry Oakland, California

Nathan V. Bishop East Hills, New York

Michael R. Blum San Francisco, California

Deborah 1. Borman Chicago, Illinois

Sara E. Boulev Salt Lake City, Utah

Kevin J. Breer Westwood, Kansas

Mark A. Bregman Scottsdale, Arizona

Beth A. Brennan lVIissoula, lvlolltana

Joyce Murphy Brooks Charlotte, North Carolina

Diana Brown

Bernadette S. Curry

Houston, Texas

Fairfield, California

Lynne Thaxter Brown Fresno, California

James Andrew Browne San Frallcisco, California

Julie A. Buffington Dallas, Texas

Jonathan A. Darcy Philadelphia, Pennsylvania

Elaine Maier Deering Boca Ratoll, Florida

A. Charles Dell'Ario Oaklalld, California

B. Chad Bungard Fredericksburg, Virgillia

Beverly Ray Burlingame Dallas, Texas

C. David Dietz St. Paul, Minnesota

Michael J. Dimino Washillgtoll, D.C.

Fritz Byers

Richard S. Dodd II

Toledo, Ohio

Reston, Virginia

H. Thomas Byron III Washington, D.C.

Christopher A. Camardello Minneapolis, Minnesota

David 1. Cargille New York, New York

Robert J. Carty Jr. Houston, Texas

Leah Domstead Dallas, Texas

Preston Saul Draper Norman, Oklahoma

John C. Duncan Norman, Oklahoma

Gerald F. Dusing Covington, Kentucky

Thomas 1. Casey Lallsing, Michigan

Bradley Charles

Steve C. Eggimann Minneapolis, Minnesota

Daniel P. Elms

Grand Rapids, Michigan

liChen

Dallas, Texas

Ann Erickson Gault

Dallas, Texas

Pontiac, Michigan

Jordan B. Cherrick St. Louis, Missouri

Peter Clapp

Michael T. Fackler Jacksonville, Florida

Michael E. Faden

Richmond, California

Kristina A. Clark Washington, D.C.

Randall B. Clark Boston, Massachusetts

A. Craig Cleland Atlanta, Georgia

Michael Scott Coffman Salt Lake City, Utah

Elizabeth J. Cohen Chicago, Illinois

Rockville, Maryland

John D. Faucher Thousand Oaks, California

Bruce Ellis Fein Washington, D.C.

Janet Rosenblum Fipphen Fairfield, Connecticut

Angela Fisher Knoxville, Tennessee

Neil Fried Arlington, Virginia

Charles Dewey Cole Jr. New York, New York

Samuel Scott Cornish New York, New York

Emily Cote

Elizabeth Klein Frumkin Cambridge, Massachusetts

Mark W. Gaffney Pelham Manor, New York

Duane H. Gall

San Jose, California

Jefferson Coulter Seattle, Washington

Denver, Colorado

Nicole S. Gambrell Dallas, Texas

Baldemar Garcia Jr.

Jim Covington Springfield, Illinois

vi

Laredo, Texas

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

AnneW. Gill Castle Rock, Colorado

Alexander C.D. Giza Culver City, California

Kevin W. Grierson Norfolk, Virginia

Ellen B. Gwynn Tallahassee, Florida

Matthew C. Hans St. Louis, Missouri

Yaakov Har-Oz Beit Shemesh, Israel

William H. Hart Minneapolis, Minnesota

Molly Hatchell Austin, Texas

Scott M. Heenan Cincinnati, Ohio

Marie Hejl A ustin, Texas

Susan Hoffman San Luis Obispo, California

Jeffrey A. Hogge Elk Grove, California

Brian John Hooper

Stuart B. Katz

Morris D. Linton

Chappaqua, New York

Paul D. Keeper Austin, Texas

Washington, D.C.

Darlene Azevedo Kelly Oakhurst, California

H. Dennis Kelly Fort Worth, Texas

Clark D. Kimball Rochester, New York

James A. King

Virginia Beach, Virginia

Maryanne Burnes Hutchinson Braintree, Massachusetts

AmyB. Ikerd Coldwater, Ohio

Peter O. Israel Los Angeles, California

Dianne L. Izzo Austin, Texas

Matthew A. Jacober St. touis, Missouri

Robert A. James San Francisco, California

Eric K. Johnson Murray, Utah

David R. Johnstone Washington, D.C

Richard B. Katskee Washington, D.C

Chicago, lllinois

Columbus, Ohio

Fairfax, Virgillia

Anthony J. Marks

Cherry Hill, New Jersey

Melissa Lin Klemens Washington, D.C.

William M. Klimon Washington, D.C.

Los Angeles, California

Catherine M. Masters Chicago, Illinois

Jeffrey Matloff Bellevue, Washington

Michael J. Mauro

Helena Klumpp Deerfield, Illinois

Jonathan H. Koenig Wauwatosa, Wisconsin

Thomas J. Koffer New York, New York

Christina M. Kotowski San Francisco, California

Mike Kueber

Stamford, Connecticut

OlgaL May San Diego, California

Jeffrey T. McPherson St. Louis, Missouri

John W. McReynolds Dal/as, 7exas

Edward R. Mevec

San Antonio, Texas

Houston, Texas

Dal/as, Texas

David P. Lyons

Andrew D. Klein

Nanda P.B.A. Kumar

Robert N. Hughes

Minneapolis. Minnesota

Robert N. Markle

Arlington, Virginia Washington, D.C

Thomas G. Lovett IV Margaret I. Lyle

Henry W. Huffnagle Han. Lynn N. Hughes

Salt Lake City, Utah

David W. Long

Philadelphia, Pennsylvania

Buchanan, New York

Andrew E. Miller Los Angeles, California

Matthew C. Miller

Robert J. Lally Cleveland, Ohio

Kansas City, Missouri

Han, Harriet Lansing St. Paul, Minnesota

Geoffrey Larson Minneapolis, Minnesota

James Hays Lawson Louisville, Kentucky

Han. Steve Leben Topeka, Kansas

Daphna H, Mitchell New York, New York

Michael S. Mitchell New Orleans, Louisiana

Andrew W. Moeller Amherst, New York

Thomas J. Moses San Francisco, California

Michelle Thomas Leifeste Boulder, Colorado

Andrew D. Levy Baltimore, Maryland

R. Eric Nielsen Bethesda, Maryland

Siobhan Nurre San Jose, California

Consuelo Marie Ohanesian

Janet Li Foster City, California

Dryden J. Liddle Alameda, California

Raymond J. Liddy San Diego, California

Jacob R. Lines

Phoenix, Arizona

Erin J. O'Leary Orlando, Florida

Kymberly K. OItrogge Drippings Springs, Texas

William S. Osborn

Tucson, Arizona

vii

Dallas, Texas

Black's Law Dictionary (9th ed.)

PANEL OF PRACTITIONER CONTRIBUTORS

James C. Owens

James F. Schaller II

Renee Maria Tremblay

Toledo, Ohio

Washington, D.C.

Christine C. Pagano

Ottawa, Ontario, Canada

Edward Schiffer

Oakland, California

Craig J. Trocino

San Francisco, California

Daniel J. Schultz

Paul I. Perlman Buffalo, New York

Tempe, Arizona

Arthur R. Petrie II

David W. Schultz

Newport Beach, California

Rebecca B. Phalen

Mandeville, Louisiana

Arthur A. Vingiello

Houston, Texas

Baton Rouge, Louisiana

Herbert R. Schulze

Kristin P. Walinski

Truckee, California

Atlanta, Georgia

Richmond, Virginia

Benjamin G. Shatz

David Pickle Washington, D.C.

Richard S. Walinski

Los Angeles, California

Denise Wimbiscus Shepherd

Mark D. Plaisance Baker, Louisiana

Solon, Ohio

Matthew Eliot Pollack Topsham, Maine

Baton Rouge, Louisiana

San Francisco, California

Riverswood, Illinois

Columbus, Ohio Tumwater, Washington

Marshall Simmons

Philip Weltner II

Dallas, Texas

Houston, Texas

Atlanta, Georgia

Fred A. Simpson

Robert M. Redis White Plains, New York

James M. Reiland

Garner K. Weng

Houston, Texas

San Francisco, California

Adam Snyder

Eric R. Werner

Wadsworth, Illinois

Chicago, Illinois

Fort Worth, Texas

Randall J. Snyder

Tracy 1. Reilly

Donald C. Wheaton Jr.

Bismarck, North Dakota

Dallas, Texas

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

Chicago, Illinois

Chevy Chase, Maryland

Daniel R. White

Scott A. Stengel Washington, D.C.

Susan L. Ronn

Los Angeles, California

Heather E. Stern

Kohimarama Auckland, New Zealand

Joseph E. Root

Malcolm E. Whittaker

Los Angeles, California

Scott Patrick Stolley

Hamden, Connecticut

Victor R. Stull

Hon. Janice M. Rosa Erie County, New York

Glenn F. Rosenblum Philadelphia, Pennsylvania

Joseph M. Russell

Hon. Bruce Donald Willis

Redlands, California

Plymouth, Minnesota

Michelle Dimond Szambelan Spokane, Washington

Craig M. Wolff Yarmouth, Maine

Craig D. Tindall

James B. Ryan

Sara T.S. Wolff

Phoenix, Arizona

San Diego, California

Patrick M. Ryan

Yarmouth, Maine

Albert J. Wollerman

Nick Tishler Niskayuna, New York

San Francisco, California

Conrad R. Wolan Elmira, New York

Tony Tanke Davis, California

Chicago, Illinois

Houston, Texas

Jamison Wilcox

Dallas, Texas

Montara, California

St. Clair Shores, Michigan

Carla 1. Wheeler

William C. Spence

Armando Rodriguez-FeD

Dallas, Texas

M.John Way

Southfield, Afichigan

Houston, Texas

Steve Putman

MarkR. Wasem Christine E. Watchorn

Jordan M. Sickman

Christina E. Ponig

Toledo, Ohio

Alison Wallis Harvey, Louisiana

Richard A. Sherburne Jr. Anne M. Sherry

Jeffrey D. Polsky

Fort Lauderdale, Florida

R. Collins Vallee

Tallahassee, Florida

Peter J. Toren

William C. Wright

New York, New York

West Palm Beach, Florida

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

Arrissa K. Meyer

Jonathan Michael Thomas

Laurie M. Velasco

'The Colony, Texas

Dallas, Texas

Dallas, Texas

Plano, Texas

viii

Black's Law Dictionary (9th ed.)

PANEL OF ACADEMIC CONTRIBUTORS

Hans W. Baade The University of Texas

Lynn A. Baker 7he University of Texas

Thomas E. Baker Florida International University

Barbara Aronstein Black Columbia University

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

Edward H. Cooper University ofMichigan

Daniel Robert Coquillette Boston College

David Crump University ofHouston

Darby A. Dickerson Stetson University

James Joseph Duane Regent University School ofLaw

David G. Epstein Southern Methodist University

(the late) E. Allan Farnsworth Columbia University

Martha A. Field Harvard University

Monroe H. Freedman Hofstra University

Richard D. Freer Emory University

S. Elizabeth Gibson University ofNorth Carolina

Richard J. Graving South Texas College

Alan Gunn University ofNotre Dame

Egon Guttman American University

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

R.H. Helmholz University ofChicago

Heidi M. Hurd University ofIllinois

Julian Conrad Juergensmeyer Georgia State University

Sanford H. Kadish University ofCalifornia at Berkeley

Gideon Kanner Loyola Law School

Joseph R. Kimble Thomas M. Cooley Law School

Edward J. Kionka Southern Illinois University

Douglas Laycock The University ofMichigan

Saul Litvinoff Louisiana State University

JohnS. Lowe Southern Methodist University

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

Thomas William Mayo Southern Methodist University

Lucy S. McGough Louisiana State University

Joseph w. McKnight Southern Methodist University

John K. McNulty University ofCalifornia at Berkeley

Ernest Metzger University ofAberdeen

James E. Moliterno College of William & Mary

James A.R. Nafziger Willamette University

John B. Oakley UniversityafCalifornia

John V. Orth University afNorth Carolina

Alan N. Resnick Hofstra University

O.F. Robinson University ofGlasgow

Jean Rosenbluth Urliversityof Southern California

Paul Frederick Rothstein Georgetown University

Ronald Daniel Rotunda George Mason University

Stephen A. Saitzburg The George Washington University

Frederic S. Schwartz Okahoma City University School ofLaw

Charles Silver The University of Texas

Lawrence M. Solan Brooklyn Law

Marc 1. Steinberg Southern Methodist University

Michael F. Stu dey The University of Texas

Symeon Symeonides Willamette University

Peter Meijes Tiersma Loyola Law School

Mark V. Tushnet Georgetown University

William D. Underwood Baylor University

David Walker University ofGlasgow

Robert Weisberg Stanford Law School

Mary Whisner University of Washington

Peter Winship Southern Methodist University

Charles W. Wolfram Cornell Law School

Richard C. Wydick University ofCalifornia at Davis

A.N. Yiannopoulos Tulane University

Judith T. Younger

Tony Honore

University ofA1innesota

Oxford University

ix

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

xiii

xv

xvii

xxv

xxxi

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

1

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

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

E. F. G. H.

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

xi

1761

1815

1881

1895

1899

1903

1905

1907

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

xiii

PREFACE TO THE NINTH EDITION

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

xiv

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

xv

PREFACE TO THE EIGHTH EDITION

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

xvi

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

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

xvii

PREFACE TO THE SEVENTH EDITION

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

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

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

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

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PREFACE TO THE SEVENTH EDITION

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

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

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PREFACE TO THE SEVENTH EDITION

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

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

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

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

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

xxiii

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

P&L

Panduit test

per annum

PIE ratio

per capita

percentage lease

per diem

peremptory

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

Rule 11

rule absolute

rulemaking

rule ofn

ruleof78

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

eight-hour law

8-K

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

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

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

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

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

4

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

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

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

abnormally dangerous activity

5

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

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

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

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

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

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

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

8

absolute presumption. See conclusive presumption under PRESUMPTION.

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

9

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

abstract

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

abstract compromis

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

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

10

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

(2).

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

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

abuse of the elderly

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

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

acceptance au besoin

14

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

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

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

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

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

accessory

15

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

6. Copyright. The right to obtain information about

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

2. ACCESSION (4).

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

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

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

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

accommodation

17

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

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

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

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

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

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

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

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

accommodation acceptance

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

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

accommodation surety. See voluntary surety under SURETY.

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

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

18

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

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

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

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

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

19

account

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

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

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

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

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

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

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

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

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

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

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

accountable

21

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

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

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

(4).

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

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

acknowledgment of paternity

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

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

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

act of possession

39

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

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

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

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

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

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

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

40

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

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

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

(3).

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

41

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

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

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

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

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

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

admission tax

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

54

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

tacit admission. See implied admission.

true admission. See judicial admission.

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

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

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

55

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

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

affirmance

67

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

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

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

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

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

68

affirmance day general

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

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

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

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

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

69

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

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

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

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

against the weight of the evidence

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

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

against the will

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

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

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

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

70

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

agency

71

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

financing agency. A bank, finance company, or other

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

agency by operation oflaw. See agency by estoppel.

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

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

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

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

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

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

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

agency adjudication

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

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

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

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

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

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

72

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

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

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

(4).

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

agent

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

74

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

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

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

75

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

aggravating factor

age of criminal responsibility. See AGE.

age of discretion. See AGE.

age of majority. See AGE.

age of reason. See AGE.

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

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

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

agnatus

77

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

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

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

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

living-together agreement. See COHABITATION AGREE­ MENT.

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

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

outsourcing agreement. See OUTSOURCING AGREE­ MENT.

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

postnuptial agreement. See POSTNUPTIAL AGREE­ MENT.

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

reconciliation agreement. See RECONCILIATION AGREE­ MENT.

redemption agreement. See STOCK-REDEMPTION AGREEMENT.

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

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

stock-retirement agreement. See STOCK-REDEMPTION AGREEMENT.

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

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

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

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

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

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

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

agreement of imperfect obligation

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

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

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

81

AIH

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

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

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

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

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

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

alias dictus

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

alien amy. See alien friend.

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

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

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

84

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

alliance

87

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

the Laws of England 100 (1768).

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

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

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

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

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

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

allied offense

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

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

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

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

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

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

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

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

alternative relief

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

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

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

92

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

ambiguity

93

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

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

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

ambiguous (am-big­

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

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

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

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

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

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

94

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

amendment

95

adding text, or substituting text. See AMEND

(2).

Cf.

BLANK (2).

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

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

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

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

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

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

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

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

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

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

96

amendment after allowance

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

amendment after appeal. See

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

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

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

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

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

amove

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

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

HEIR (1).

common ancestor. A person to whom the ancestry of

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

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and other good and valuable consideration

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

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

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

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

ancient writing. See ancient document under

DOCU­

MENT.

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

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

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

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

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

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

androlepsy

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

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

102

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

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

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

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

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

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

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

annuity

105

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

apocrisarius

111

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

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

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

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

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

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

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

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

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

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

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

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

appearance de bene esse. See speCial appearance under APPEARANCE.

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

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

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

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

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

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

ASCAP. abbr.

AMERICAN SOCIETY OF COMPOSERS, AUTHORS AND PUBLISHERS.

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

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

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

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

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

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

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assault and battery

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

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

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

indecent assault by contact. See sexual assault (2)

indecent assault by exposure. See INDECENT

EXPOSURE.

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

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

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

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

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

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

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

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

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

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assessment for benefits

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

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

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

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

assessment for benefits. See special assessment under

ASSESSMENT.

assessment fund

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

134

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

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

i

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

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

the claims of creditors or legacies. - Also termed

assignable

135

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

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

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

137

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

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

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

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

assignment for the benefit of creditors

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

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

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

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

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

145

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

146

attachment bond

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

SPIRACY; SOLICITATION (2).

44.J

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

:::

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

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

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

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

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

ASSAULT.

!

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

[Cases: Criminal Law

attempt, vb.

I

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

148

attorney, power of

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

audit opinion. See OPINIOK (2).

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

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

author

151

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

BCD

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

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

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

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

vb.

'

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

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

bench

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

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

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

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

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

ed.,1968).

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

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

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bequest

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

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

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

benefit of priority filing date. See

BENEFIT OF AN

EARLIER FILING DATE.

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

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

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

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

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

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

best mode

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

182

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

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

biens

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

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

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

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

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

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

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

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

185

bill

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

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

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

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

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

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

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

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

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

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

bill

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

186

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

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

187

bill broker

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

nonnegotiable bill of lading. See straight bill of lading.

189

bill of sight

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

(1).

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

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

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

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

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

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

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

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

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

[Cases; Children Out-of-Wedlock

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

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

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

bluewater seaman. See able-bodied seaman under SEAMAN.

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

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

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

197

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

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

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

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

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

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

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

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

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

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

bonded debt

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

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

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

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

207

boon day

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

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

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

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

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

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

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

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

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

209

bote

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

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

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

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

bote less

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

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

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

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

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

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

boycott

211

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

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

boundary by agreement. See agreed boundary under BOUNDARY.

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

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

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

breach of covenant

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

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

budget

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

2.

BUREAU OF TRANSPORTATION STA-

TISTICS.

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

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

222

budget bill

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

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

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

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

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

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

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

Bureau of Alcohol, Tobacco, and Firearms

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

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

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

224

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

225

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

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

burglary

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

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

burgh English (barg ing-glish). See

BOROUGH

ENGLISH.

burgh Engloys (barg ing-gloiz). See

BOROUGH

ENGLISH.

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

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

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

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

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

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

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

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

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

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

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

bystander

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

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

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

c

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

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

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

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

Cable and Satellite Directive. See

DIRECTIVE ON THE

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

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

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

231

calendar

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

calendar

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

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

232

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

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

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

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

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

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

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

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

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

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

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

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

captive insurer. See captive insurance company under INSURANCE COMPANY.

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

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

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

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

due care. See reasonable care.

extraordinary care. See great care.

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

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

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

mo.]

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

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

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

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

c.n

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

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

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

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

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

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cashier

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

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

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

cashier's check

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

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

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

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

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

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

257

certification of labor union

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

certificate of probable cause. See

CERTIFICATE OF

APPEALABILITY.

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

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

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

certificate of reasonable doubt. See CERTIFICATE

OF

APPEALABILITY.

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

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

certification mark. See certification trademark under TRADEMARK.

certification of bargaining agent. See UNION

CERTIFI­

CATION.

certification oflabor union. See TION.

UNION CERTIFICA­

258

certification to state court

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

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

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

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

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

264

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

in the United States 371-72 (2002).

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

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

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

268

chartis reddendis

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

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

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

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

personal chattel. See chattel personal.

real chattel. See chattel real.

unique chattel. A chattel that is absolutely irreplaceable

(Video) Black's Law Dictionary

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

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

check-kiting

269

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

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

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

3:

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

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

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

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

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

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

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

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

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

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

child-sexual-abuse accommodation syndrome

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

child-access prevention statute. See

SAFE-STORAGE

STATUTE.

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

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

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

PING.

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

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

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

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

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

277

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

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

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

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

279

civil-damage law

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

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

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

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

civil day

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

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

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

280

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

NALIZATION (1).

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

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

claim

281

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

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

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

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

4.

CORPUS JURIS.

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

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

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

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

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

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

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

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

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

classified tax. See TAX.

class legislation. See local and speciallegislatiorl under

LEGISLATION.

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

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

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

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

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

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

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

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

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

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

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

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

7. SECRETARY (3).

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

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

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

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

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

(3).

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

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

to a limited number closed trial. See TRIAL.

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

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

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

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

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

307

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

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

Commission of Oyer and Terminer

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

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

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

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

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

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

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

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

commission to take testimony. See

COMMISSION TO

EXAMINE A WITNESS.

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

committee

309

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

LETTER OF INTENT.

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

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

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

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

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

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

common-law action

314

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

4. The body oflaw deriving from law courts as opposed

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

common-law assignment. See ASSIGNMENT (2).

common-law bond. See BOND (2).

common-law cheat. See CHEATING.

common-law contempt. See criminal contempt under

CONTEMPT.

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

common-law marriage. See MARRIAGE

(1).

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

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

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

common nuisance. See public nuisance under

NUI­

SANCE.

common occupant. See general occupant under occu­ PANT.

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

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

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

315

commorant

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

JUDG­

MENT.

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

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

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

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

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

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

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

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

Community mark. See Community trademark under TRADEMARK.

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

community-property state

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

318

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

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

319

company

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

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

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

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

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

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

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

REAL-ESTATE INVESTMENT TRUST; MUTUAL FUND.

NESS INVESTMENT COMPANY.

320

company-run dividend-reinvestment plan

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

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

compensatio injuriarum

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

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

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

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

compensatory damages. See DAMAGES.

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

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

confidentiality clause

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

SENTENCE.'

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

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

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

LOSS OF CONSORTIUM; CONJUGAL RIGHTS.

352

conspirator

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

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

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

conspiracy in restraint of trade. See

RESTRAINT OF

TRADE.

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

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

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

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

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

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

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

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

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

359

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

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

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

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

contango

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

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

contemn

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

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

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

prosecution application under

PATENT APPLICATION;

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

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

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

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

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

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

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

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

continuing annuity

enduring . continuing annuity. See survivorship annuity under ANNUITY.

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

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

364

threat ofcontinuing injury. Cf. continuing injury under INJURY.

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

(3).

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

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

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

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

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

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

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

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

contract

:67

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

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

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

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

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

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

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

372

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

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

CON­

TRACT.

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

(>

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

373

contract

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

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

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

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

I

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

(1943).

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

contract

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

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

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

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

void contract. (I7c) 1. A contract that is of no legal effect, so that there is really no contract in existence at alL - A contract may be void because it is techni­ cally defective, contrary to public policy, or illegal. Cf. illegal contract; unenforceable contract. [Cases: Contracts ~98, 136.] "Strictly speaking, a 'void contract' is a contradiction in terms; for the words describe a state of things in which,

375

Contracts Clause despite the intention of the parties, no contract has been made, Yet the expression, however faulty, is a compendi­ ous way of putting a case in which there has been the outward semblance without the reality of contract," William R, Anson, Principles of the Law of Contract 18 (Arthur L. Corbin ed" 3d Am, ed, 1919), "A valid contract is, of course, simply a contract of full force and effect, not vitiated in any way. A so-called void contract, on the other hand, is really a contradiction in terms inasmuch as a contract has already been defined in terms applicable only to a valid contract. However, the term is convenient and is universally used, For purposes of exposition, it is convenient to treat void contracts as falling, broadly speaking, into main categories, On the one hand, are cases where one of the normal requirements for the crealion of a contract is absent, while, on the other hand, are cases where all the normal requirements are satisfied, but the contract is void because the law disap­ proves of its purpose or the terms by which it seeks to achieve that purpose. Typical examples of contracts which are void because one of the normal requirements is absent are contracts in which the acceptance of an offer has not been communicated or in which a promise is given gra­ tuitously. Typical examples of contracts which are void because of their terms or objects are wagering contracts, and contracts prejudicial to family relations." P.S_ Atiyah, An Introduction to the Law of Contract 36-37 (3d ed. 1981).

2. A contract that has been fully performed. - Also

termed discharged contract. "Not only is the term 'void contract' in itself technically inaccurate, but a contract is sometimes said to be void, not because it was destitute of legal effect from its com­ mencement, but because it has been fully performed, and so has ceased to have legal operation. It would be more proper to describe such a contract as 'discharged.''' William R. Anson, Principles of the Law of Contract 20 (Arthur l. Corbin ed., 3d Am_ ed. 1919),

3. Loosely, a voidable contract. "Again the word 'void' has been used, even by judges and the framers of statutes, where 'voidable' is meant. One illustration will suffice. By 17 Geo. III, c, SO, failure to pay certain duties at an auction is stated to make a bidding 'nul and void to all intents,' but this does not entitle a purchaser who has repented of his bargain to avoid the contract by his own wrong, that is by refusal to pay the statutory duty. The contract is voidable at the option of the party who has not broken the condition imposed by law_" William R. Anson, Principles of the Law of Contract 20-21 (Arthur l. Corbin ed" 3d Am, ed. 1919),

voluntary contract. See gratuitous contract (2). wagering contract. 1. A contract the performance of which depends on the happening of an uncertain event, made entirely for sport. See gambling contract. Cf. aleatory contract. [Cases: Gaming (;:J 1,5, 10.] "Although wagering and gaming agreements were gen­ erally enforceable under the English common law, they were condemned in most American states, in part because they were thought to encourage shiftlessness, poverty, and immorality, and in party because they were regarded as too frivolous to be worthy ofjudicial attention, Irwin v. Williar, 110 U,S. 499 (1884) ('In England it is held that the contracts, although wagers, were not void at common law, . ' . while generally, in this country, all wagering contracts are held to be illegal and void as against public policy:)" E. Allan Farnsworth, Contracts § 5,2 n.4, at 326-27 (3d ed, 1999).

2. A contract in which an uncertain event affects or results from a business transaction .• With this type

of wagering contract, a business person is protected from a trade risk. written contract. A contract whose terms have been reduced to writing. "Written contracts are also commonly signed, but a written contract may consist of an exchange of correspondence, of a letter written by the promisee and assented to by the promisor without signature, or even of a memorandum or printed document not signed by either party. Statutes relating to written contracts are often expressly limited to contracts signed by one or both parties. Whether such a limitation is to be implied when not explicit depends on the purpose and context." Restatement (Second) of Contracts § 95 cmt. c (1979) (citations omitted).

yellow-dog contract. See YELLOW-DOG CONTRACT. contract, freedom of. See FREEDOM OF CONTRACT. contract bond. See PERFORMANCE BOND. contract carrier. See private carrier under CARRIER. Contract Clause. See CONTRACTS CLAUSE. contract demurrage. See DEMURRAGE. contractee. Rare. A person with whom a contract is made. contract labor. See INDEPENDENT CONTRACTOR. contract loan. See add-on loan under LOAN. contract not to compete. See noncompetition covenant under COVENANT (1). contract not to sue. See covenant not to sue under COVENANT (1).

contract of affreightment (a-frayt-mant). Maritime law. An agreement for the carriage of goods by water.• A contract of affreightment may employ a bill oflading, a charterparty, or both to ship the goods. - Abbr. COA. Also termed contract ofcarriage. See CHAR­ TERPARTY. [Cases: Shipping (;:J 104.] contractor. (16c) 1. A party to a contract. 2. More specif., one who contracts to do work or prOVide supplies for another. competent contractor. A contractor who has the knowl­ edge, skill, experience, and available equipment to do the work that he or she is employed to do without creating an unreasonable risk of injury to others and who has the personal characteristics necessary to carry out the work. [Cases: Labor and Employment 175, contract system. Hist. The practice of leasing prisoners out to private individuals for the prisoners' labor. contract to pledge. See CONTRACT. contract to satisfaction. See satisfaction contract under CONTRACT.

contract to sell. See contract for sale (2) under CONTRACT.

contractual duty. See DUTY (1). contractual fault. See FAULT. contractual indemnity. See INDEMNITY. contractual obligation. See OBLIGATION. contract uberrimae fidei. See CONTRACT. contract under seal. See CONTRACT. contractus (kan-trak-tds). [Latin] Roman law. A contract; an agreement between two or more parties, usu. to create an actionable bond between them. See CON­ TRAHERE.

"The texts of the Roman law do not supply a definition of contract. The words contractus contrahere like 'contract' in English, are used in various senses, someti mes Wider, sometimes narrower. Labeo gives contractus the meaning of a reciprocal obligation, such as purchase and sale, hire, partnership. But when the Romans speak of obligation arising from contract, they mean obligations arising from convention or agreement. In Roman law it was far from being the case that all agreements which might be expected to produce a legal obligation did so." R.W. lee, The Elements of Roman Law 285 (4th ed, 1956).

contractus bonae fidei, vel stricti juris (kdn-trak-tds boh-nee £I-dee-I, vel strik-tI joor-I). [Latin] Roman law. Contracts of good faith or of strict law; a contract requiring that the parties perform their duties in good faith .• In an action brought on a contractus bonae fidei, the plaintiff had to assert that he had not acted in bad faith. All consensual contracts were considered contractus bonae fidei. The phrase was typically used when a remedy was being sought for a breach. Judges

i

enforced contracts of good faith (e.g., contracts of sale) according to the requirements of good faith and contracts of strict law (e.g., stipulations) according to their strict terms. Sometimes shortened to contrac­ tus bonae fidei. contract zoning. See ZONING. contradictio in adjecto. [Latin) A contradiction in terms; an oxymoron. contradictory judgment. See rUDGMENT. contradictory motion. See MOTION (1). contra executionem (kon-trd ek-si-kyoo-shee-oh-ndm). [Law Latin] Hist. Against execution.• The phrase referred to the presumption in favor of a defendant's objections to the manner of execution against the defendant's property. contrafactio (kon-trd-fak-shee-oh). [Law Latin] Hist. The act of counterfeiting.• The word appeared frequently in the phrase contrafactio sigilli regis ("counterfeiting the king's seal"). contra fidem tabularum nuptialium (kon-trd fI-d3-5.] fraudulent conversion. Conversion that is committed by the use of fraud, either in obtaining the property or in withholding it. [Cases: Trover and Conversion 7.] innocent conversion. See technical conversion. involuntary conversion. The loss or destruction of property through theft, casualty, or condemnation. negligent conversion. See technical conversion. technical conversion. The taking of another's personal property by one who acts in good faith and mistak­ enly believes that he or she is lawfully entitled to the property. Also termed innocent conversion; negli­ gent conversion. conversionary act. See ACT. conversion divorce. See DIVORCE. conversion premium. Securities. The surplus at which a security sells above its conversion price. conversion price. Securities.lhe contractually specified price per share at which a convertible security can be converted into shares of common stock. conversion ratio. 1. The number of common shares into which a convertible security may be converted. 2. The ratio of the face amount of the convertible security to the conversion price. conversion rule. See SPECIFIC-PURPOSE RULE. conversion security. See SECURITY. conversion statute. A law under which a state official or court oversees the sale or transfer of control of an organization in order to protect public assets. conversion value. A convertible security's value as common stock. • For example, a bond that can be converted into ten shares of stock worth $40 each has a conversion value of $400. See BOND CONVERSION. converter, n. One who wrongfully possesses or disposes of another's property; esp., one who engages in a series of acts ofwillful interference, without lawful justifica­ tion, with an item of property in a manner inconsis­ tent with another's right, whereby that other person is deprived of the use and possession of the property. [Cases: Trover and Conversion innocent converter. A person who takes another's chattel tortiously but in good faith and without knowledge that he or she has no entitlement to it. convertible arbitrage. See kind arbitrage under ARBI­ TRAGE.

convertible bond. See BOND (3). convertible collision insurance. See INSURANCE. convertible debenture. See DEBENTURE.

convertible debt. 1. See DEBT. 2. See convertible security under SECURITY. convertible divorce. See conversion divorce under DIVORCE.

convertible insurance. See INSURANCE. convertible security. See SECURITY. convertible stock. See convertible security under SECURITY.

convertible subordinated debenture. See DEBENTURE. convey, vb. (14c) To transfer or deliver (something, such as a right or property) to another, esp. by deed or other writing; esp., to perform an act that is intended to create one or more property interests, regardless of whether the act is actually effective to create those interests. conveyance (bn-vay-ants), n. (iSc) 1. The voluntary transfer of a right or of property. absolute conveyance. A conveyance in which a right or property is transferred to another free of condi­ tions or qualifications (Le., not as a security). Cf. con­ ditional conveyance. conditional conveyance. A conveyance that is based on the happening of an event, usu. payment for the property; a mortgage. Cf. absolute conveyance. derivative conveyance. See secondary conveyance. innocent conveyance. Hist. A leaseholder's conveyance of the leaseholder's property interest that is, some­ thing less than a fee simple.• The conveyance is of an equitable interest. [Cases: Landlord and Tenant (;=74.] mesne conveyance (meen). An intermediate convey­ ance; one occupying an intermediate position in the chain of title between the first grantee and the present holder. original conveyance. See primary conveyance. present conveyance. A conveyance made with the intent that it take effect at once rather than in the future. primary conveyance. A conveyance that creates an estate.• Examples of primary conveyances include feoffment, gift, grant, lease, exchange, and parti­ tion. - Also termed original conveyance. Cf. second­ ary conveyance. "Of conveyances by the common law, some may be called original, or primary conveyances; which are those by means whereof the benefit or estate is created or first arises: others are derivative or secondary; whereby the benefit or estate, originally created, is enlarged, restrained, transferred, or extinguished." 2 William Blackstone, Com­ mentaries on the Laws of England 309 (1766).

secondary conveyance. A conveyance that follows an earlier conveyance and that serves only to enlarge, confirm, alter, restrain, restore, or transfer the interest created by the primary conveyance. Also termed derivative conveyance; derivative deed. Cf. primary conveyance.

voluntary conveyance. A conveyance made without valuable consideration, such as a deed in favor of a relative. 2. The transfer of a property right that does not pass by delivery of a thing or merely by agreement. 3. The transfer of an interest in real property from one living person to another, by means of an instrument such as a deed. 4. The document (usu. a deed) by which such a transfer occurs. [Cases: Deeds (;=3.] 5. A means of transport; a vehicle. 6. Bankruptcy. A transfer of an interest in real or personal property, including an aSSignment, a release, a monetary payment, or the creation of a lien or encumbrance. - Also termed (in sense 6) bond for deed. See FRAUDULENT CONVEYANCE; PREFERENTIAL TRANSFER.

conveyancer (bn-vay-an-s 1.] "Copartner need not exist alongside partner. The joint relationship (i.e., that the existence of one partner implies the existence of one or more other partners) is clear to all native speakers of English .... Because copartner adds nothing to the language of the law, it should be avoided."' Bryan A. Garner, A Dictionary of Modem Legal Usage 223 (2d ed. 1995).

copartnership. See PARTNERSHIP. • The terms copart­ nership and partnership are equally old - each having first appeared in the 1570s.

coparty. (1906) A litigant or participant in a legal trans­ action who has a like status with another party; a party on the same side of a lawsuit. - Also termed joint party. See CODEFENDANT; COPLAINTIFF. copayment. A fixed amount that a patient pays to a healthcare provider according to the terms of the patient's health plan. - Often shortened to copay. [Cases: Insurance C=>2523.] copending, adj. Patents. (Of serial applications filed in the same patent prosecution) before the U.S. Patent and Trademark Office at or near the same time and concerning the same invention .• A continuation or divisional application that is copending with its parent application benefits from the parent's earlier filing date. [Cases: Patents C=> 1l0.] copending patent. See PATENT (3). copia libelli deliberanda. See DE COPIA LIBELLI DELIBER­ ANDA.

coplaintiff. (l8c) One of two or more plaintiffs in the same litigation. - Also termed joint plaintiff. Cf. CODE­ FENDANT.

coprincipal. (l7c) 1. One of two or more participants in a criminal offense who either perpetrate the crime or aid a person who does so. [Cases: Criminal LawC=>59.] 2. One of two or more persons who have appointed an agent whom they both have the right to control. copulative condition. See CONDITION (2). copy, n. (14c) 1. An imitation or reproduction of an original. • In the law of evidence, a copy is generally admissible to prove the contents of a writing. Fed. R. Evid. 1003. See BEST-EVIDENCE RULE. [Cases: Criminal Law C=>398(l); Evidence C=> 174.1.] archival copy. See ARCHIVAL COPY. attested copy. See certified copy. certified copy. (I8c) A duplicate of an original (usu. official) document, certified as an exact reproduction usu. by the officer responsible for issuing or keeping the original. - Also termed attested copy; exempli­ fied copy; verified copy. [Cases: Criminal Law C=>430; Evidence C=>338.] conformed copy. (1937) An exact copy of a document bearing written explanations of things that were not or could not be copied, such as a note on the document indicating that it was signed by a person whose signa­ ture appears on the original. examined copy. A copy (usu. of a record, public book, or register) that has been compared with the original or with an official record of an original. [Cases: Criminal Law C=>445; Evidence C=>367.] exemplified copy. See certified copy. true copy. A copy that, while not necessarily exact, is sufficiently close to the original that anyone can understand it. verified copy. See certified copy.

2. Copyright. The physical form in which a creative work is fixed and from which the work can be repro­ duced or perceived, with or without the aid of a special device. 17 USCA § 101. [Cases: Copyrights and Intellec­ tual Property C~ 1.J 3. Copyright. An expressive work that is substantially similar to a copyrighted work and not produced COincidentally and independently from the same source as the copyrighted work .• Proof of copying in an infringement action requires evidence of the defendant's access to the original work and substan­ tial Similarity of the defendant's work to the originaL See substantial similarity under SIMILARITY. [Cases: Copyrights and Intellectual Property C=>S3(l).] "The noun 'copy' ordinarily connotes a tangible object that is a reproduction of the original work; the courts have generally found no reason to depart from this usage in the law of copyright." 1 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 4.08[B], at 4·47 (Supp. 1995).

copycat drug. See generic drug under DRUG. copyhold. Hist. A base tenure requiring the tenant to provide the customary services of the manor, as reflected in the manor's court rolls.• Copyhold tenure descended from pure villeinage; over time, the customs of the manor, as reflected on the manor's rolls, dictated what services a lord could demand from a copyholder. This type of tenure was abolished by the Law of Property Act ofl922, which converted copyhold land into freehold or leasehold land. Also termed copyhold tenure; customary estate; customary freehold; tenancy by the verge; tenancy par la verge; tenancy by the rod. See base tenure under TENURE; VILLEINAGE. "Out of the tenure by Villeinage, copyhold tenure devel· oped.... By the end of the fifteenth century, to hold by copy of the court roll, to be a 'copyholder,' was a definite advantage, and, in most cases the holders had for many generations been personally free. The fusing of several different types of payment had also gone on, so that there was little difference between a holder in socage who had commuted the services for a sum of money and a copy· holder who had done the same, except the speCific dues of heriot and merchet. In Coke's time, a very large part of the land of England was still held by copyhold." Max Radin, Handbook of Anglo·American Legal History 371 (1936). "[L)and held on an unfree tenure could be transferred only by a surrender and admittance made in the lord's court. The transaction was recorded on the court rolls and the transferee given a copy of the entry to prove his title; he thus held 'by copy of the court roll,' and the tenure became known as 'copyhold.'" Robert E. Megarry & M.P. Thompson, A Manual of the Law of Real Property 22 (6th ed. 1993).

privileged copyhold. Hist. A copyhold subject only to the customs ofthe manor and not affected by the non­ conforming dictates of the current lord. copyholder. Hist. A tenant by copyhold tenure. Also termed tenant by the verge; tenant par la verge. "The lord still held a court, and that court kept records of all transactions affecting the lands. These records were called the rolls of the court. When, for instance, a tenant sold his interest to a third party, the circumstances of the sale would be recorded, and the buyer would receive a copy of the court rolls in so far as they affected his holding. Inasmuch as he held his estate by copy of court roll, he came to be called a copyholder." G.c. Cheshire, Modern Law of Real Property 24 (3d ed. 1933).

copyhold tenant. See customary tenant under TENANT. copyleft. Slang. A software license that allows users to modify or incorporate open-source code into larger programs on the condition that the software containing the source code is publicly distributed without restric­ tions. copylefted software. Slang. Free software whose distri­ bution terms forbid the addition of restrictions if the software is redistributed in its original or a modified form.• Not actually a legal term, this phrase is popu­ larly used as the antithesis ofcopyright by Internet free­ software promoters. See FREEWARE. copyright, n. (ISc) 1. The right to copy; specifically, a property right in an original work of authorship (including literary, musical, dramatic, choreographic, pictorial, graphic, sculptural, and architectural works; motion pictures and other audiovisual works; and sound recordings) fixed in any tangible medium of expression, giving the holder the exclusive right to reproduce, adapt, distribute, perform, and display the work. [Cases: Copyrights and Intellectual PropertyG= I.] 2. The body of law relating to such works. _ Copy­ right law is governed by the Copyright Act of 1976. 17 USCA §§ 101-1332. [Cases: Copyrights and Intellectual Property C~ 101.] - Abbr. c. - copyright, vb. - copy­ righted, adj. "[C)opyright is a monopoly of limited duration, created and wholly regulated by the legislature; and ... an author has, therefore, no other title to his published works than that given by statute." Ethan S. Drone, A Treatise on the Law of Property in Intellectual Productions 2 (1879). "The development of copyright law in England was shaped by the efforts of mercantile interests to obtain monopoly control of the publishing industry similar to those of the guilds that were instrumental in shaping patent and trademark law .... American copyright law came to dis· tinguish between the 'common law' right of an author to his unpublished creations, and the statutory copyright that might be secured upon publication. Until recently, therefore, an author had perpetual rights to his creation, which included the right to decide when, if, and how to publish the work, but that common law right terminated upon publication at which time statutory rights become the sole rights, if any, to which the author was entitled. This distinction was altered by the Copyright Act of 1976, which shifts the line of demarcation between common law and statutory copyright from the moment of publication to the moment of fixation of the work into tangible form." Arthur R. Miller & Michael H. DaviS, Intellectual Property in a Nutshell 280-82 (2d ed. 1990). "What is copyright? From copyright law's beginnings dose to three centuries ago, the term has meant just what it says: the right to make copies of a given work at first it meant simply written work - and to stop others from making copies without one's permission." Paul Goldstein, Copyright's Highway 3 (1994). "Before the 1976 Copyright Act swept virtually all copy· rightable subject matter within the exclusive domain of federal protection, the term 'copyright' implied a statutory right created by Congress in order to 'Promote the Progress of Science.' Our first copyright act, in 1790, protected only maps, charts, and books. Protection gradually was extended to musical compositions and graphic works. In the middle of the nineteenth century, photography was developed and then protected, followed at the end of the century by motion pictures (although they were protected

387

copyright notice as photographs). As the twentieth century comes to a close, digital technology and multimedia forms of authorship serio ously challenge the gradual, compartmentalized approach to granting new rights and new subject matter ...." 1 William F. Patry, Copyright Law and Practice 1 (1994).

ad interim copyright. Hist. A limited five-year U.S. copyright granted to the author of a foreign edition of an English-language book or periodical if, within six months after its publication abroad, the author deposited one complete copy of that edition in the U.S. Copyright Office and requested ad interim copyright protection .• An ad interim copyright was granted as an exception to the 1909 Copyright Act's manufacturing clause, which limited copyright pro­ tection for English-language books and periodicals to those printed in the U.S. If the copyright owner published the work in the U.S. during the period of ad interim protection and complied with the Act's manufacturing requirements, full copyright protec­ tion related back to the date of first publication. Oth­ erwise' the work went into the public domain at the end of five years. common-law copyright. A property right that arose when the work was created, rather than when it was published.• Under the Copyright Act of 1976, which took effect on January 1, 1978, common-law copy­ right was largely abolished for works created after the statute's effective date. But the statute retained the common law's recognition that the property right arose when the work was created rather than when it was published. The common-law copyright still applies in a few areas: notably, a common-law copy­ right received before January 1, 1978 remains entitled to protection. 17 USCA § 301. - Also termed right offirst publication. copyrightability test. A judicial test for determining whether a contributor to a joint work is an author for legal purposes, based on whether the contributor's effort is an original expression that could qualify for copyright protection on its own .• This test has been adopted by a majority of courts. Cf. DE MINIMIS TEST. [Cases: Copyrights and Intellectual Property 207.1.] Cordon rule. A rule of the U.S. Senate requiring any committee that is reporting a bill amending current law to show in its report what wording the bill would strike from or insert into the current statute.• The rule is named for Senator Guy Cordon (1890-1969) of Oregon, who proposed it. The analogous rule in the U.S. House of Representatives is the Ramseyer rule. See RAMSEYER RULE. core earnings. See operating earnings under EARNINGS. core proceeding. Bankruptcy. 1. A proceeding involv­ ing claims that substantially affect the debtor-creditor relationship, such as an action to recover a preferential transfer. • In such a proceeding, the bankruptcy court, as opposed to the district court, conducts the trial or hearing and enters a final judgment. Cf. RELATED PROCEEDING. 2. In federal courts, an action involv­ ing subject matter that is clearly within the confines of federal bankruptcy law and the management of the bankrupt's estate.• A federal bankruptcy court may also hear noncore matters that have an independent basis for subject-matter jurisdiction, such as a federal question. For a nonexclusive list of core proceedings, see 28 USCA § 157(b)(2). [Cases: Bankruptcy C=>2043­ 2063.] core rights. 1. Human rights that are generally recog­ nized and accepted throughout the world .• These rights include freedom from extrajudicial execution, torture, and arbitrary arrest and detention. Core rights are embodied in many human rights conventions, includ­ ing the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights. 2. Fundamental rights claimed within a social, cultural, or other context. • These are not universally recognized rights. For example, the ability to vote may be a fundamental right of citizens in one country but only a privilege limited to selected people in another. corespondent. (1857) 1. A coparty who responds to a petition, such as a petition for a writ of certiorari. 2. In some states, a coparty who responds to an appeal. 3. Family law. In a divorce suit based on adultery, the person with whom the spouse is accused of having committed adultery. See RESPONDENT. [Cases: Divorce C=>26,72.]

389 core work product. See opinion work product under WORK PRODUCT.

corium forisfacere (kor-ee-am for-is-fay-sa-ree). [Law Latin "to forfeit skin"] Hist. To whip (a person, esp. a servant) as punishment. - Also termed corium perdere. corium redimere (kor-ee-am ri-dim-ar-ee). [Latin] Hist. To redeem one's skin .• This referred to a person who paid restitution for an offense. cornage (kor-nij). [fr. Anglo-French corne "horn"] Hist. 1. A type of grand-sergeanty military tenure in which the tenant was bound to blow a horn to alert others whenever an enemy approached. 2. A form of tenure entitling a landowner to rent based on the number of horned cattle owned by the tenant.• Cornage may have developed into a type of serjeanty or knight­ service tenure that obligated the tenant to blow a horn to warn of invaders, esp. along the border with Scotland. Also termed (in senses 1 & 2) horn tenure. See KNIGHT-SERVICE; SERJEANTY. 3. A tribute of corn due only on special occasions, as distinguished from a regularly provided service .• This term has often been spelled coraage or coraagium, stemming perhaps from a spelling error in the 1569 edition of Bracton's De Legibus et Consuetudinibus Angliae. Cornelian law. See LEX CORNELIA. corner, n. 1. The common end of two survey lines; an angle made by two boundary lines. [Cases: Boundar­ iesG"-::'7.] existent corner. A corner whose location can be verified by an original landmark, a surveyor's field notes, or other reliable evidence. lost corner. A point in a land description, such as a landmark or natural object, whose position cannot be reasonably determined from traces of the original marks or other acceptable evidence. _ The location can be determi ned hy reference to one or more inde­ pendent points remaining in the deSCription. obliterated corner. A corner that can be located only with evidence other than that put in place by the original surveyor. 2. The acquisition of control over all or a dominant quantity of a commodity with the purpose of artifi­ cially enhancing the price, carried out by purchases and sales of the commodity - and of options and futures ­ in a way that depresses the market price so that the participants are enabled to purchase the commodity at satisfactory prices and withhold it from the market for a time, thereby inflating its price. _ A corner accom­ plished by confederation, with the purpose of raising or depressing prices and operating on the market, is a criminal conspiracy if the means are unlawful. corner influence. Property. In an appraisal, the addi­ tional value of a corner lot, esp. one zoned for commer­ cial purposes, attributable to factors such as increased light and air, easier ingress and egress, greater acces­

coronatore eligendo

sibility by pedestrian and automotive traffic, and more space for displays and advertisements. cornering the market. The act or process of acquiring ownership or control ofa large portion ofthe available supply ofa commodity or security, permitting manipu­ lation of the commodity's or security's price. Corn Products doctrine. Tax. The principle that a capital asset should be narrowly defined to exclude inventory­ related property that is integrally tied to the day-to-day operations of a business. Corn Prods. Refining Co. v. c.I.R., 350 U.S. 46, 76 S.Ct. 20 (1955). [Cases: Internal Revenue 3230.1.J corody (kor- or kahr-a-dee). Hist. An allowance of money, accommodation, food, or clothing given by a religious house to any person who Signed over personal or real property or both in exchange or to a royal servant at the Crown's request .• The amount of property required from a person who purchased a corady depended on the person's age and remaining life expectancy. The Crown was entitled to a corody for a retired royal servant only from houses that the Crown had founded. Theoreticallv, the cost of a retired royal servant's care would come from the royal purse. But since the royal purse did not always open, royal servants were not always accepted as corodiaries. Cf. LIFE-CARE CONTRACT. - Also spelled carrody. ­ corodiary (kd-roh-dee-air-ee), corrodiary, n. "Corrody is a partition for one's sustenance. Be it bread, ale, herring, a yearly robe, or sum of money for the robe. 50 of a chamber, and stable for my horses, when the same is coupled with other things ...." 5ir Henry Finch, Law, or a Discourse Thereof 162 (1759).

corollary (kor- or kahr-a-Ier-ee), n. (14c) A proposition that follows from a proven proposition with little or no additional proof; something that naturally follows. corona (kCl-roh-na). [Latin] Hist. The Crown .• This term formerly appeared in criminal pleadings, e.g., placita coronae ("pleas of the Crown"). coronation case. Hist. Any of the many lawsuits for breach of contract resulting from the postponement ofthe coronation ofEdward VII because of his illness. • In one case, for example, the defendant had agreed to hire a ship for watching the naval review by King Edward VII and for a day's cruise around the fleet. The court held that the contract was not frustrated by the cancellation ofthe naval review - the day's cruise around the fleet was still possible, and indeed, the ship could have been used for many other purposes. coronator (kor- or kahr-Cl-nay-tar). [fro Latin corona "crown"] A coroner. See CORONER (2). "The formal title of custos (or occasionally conservator) placitorum corone continued to be used throughout the Middle Ages, but the more convenient shorter forms wronarius, which was confined to a short period around 1200, and CORONATOR rapidly gained greater currency. The English form was 'coroner' or 'crowner.'" R.F. Hunnisett, The Medieval Coroner 1 n.! (1961).

coronatore eligendo. See DE CORO:>lATORE

ELIGENDO.

coronatore exonerando

coronatore exonerando. See

390 DE CORONATORE EXONE­

RANDO.

coroner (kor- or kahr-3728.] common-law corporation. See corporation by prescrip­ tion. conglomerate corporation. See CONGLOMERATE. controlled corporation. 1. A corporation in which the majority of the stock is held by one individual or firm. [Cases: Internal Revenue C=>3643.]2. A corpo­ ration in which a substantial amount (but less than a majority) of the stock is held by one individual or firm. _ Some states presume control with as little as 10%. [Cases: Corporations C=> 1.4, 1.5.] controlled foreign corporation. Tax. A foreign corpo­ ration in which more than 50% of the stock is owned by U.S. citizens who each own 10% or more of the voting stock. - These shareholders (known as u.s. shareholders) are required to report their pro rata share of certain passive income of the corporation. IRC (26 USCA) §§ 951-964. - Abbr. CFC. [Cases: Internal Revenue C=>4119.] cooperative corporation. An entity that has a corporate existence, but is primarily organized for the purpose of providing services and profits to its members and not for corporate profit. - The most common kind of cooperative corporation is formed to purchase real property, such as an apartment building, so that its shareholders may lease the apartments. See COOPERA­ TIVE (1). [Cases: Landlord and Tenant G=>350, 352.] corporation aggregate. 1. See CORPORATION. 2. Hist. A corporation made up of a number of individuals. Cf. corporation sole. "The first division of corporations is into aggregate and sole. Corporations aggregate consist of many persons united together into one society, and are kept up by a per­ petual succession of members, so as to continue forever: of which kind are the mayor and commonalty of a city, the head and fellows of a college, the dean and chapter of a cathedral church." 1 William Blackstone, Commentaries on the Laws of Eng/and 457 (1765). "The corporation aggregate is the typical corporation, which, at any given time, normally contains a number of individuals as members. This number may be great or small, varying from the hundreds of thousands of

corporation burgesses of a large borough to the two members of a private joint-stock company. It is even said that a corpora­ tion aggregate would not necessarily cease to exist if all its members died, leaving no successors; and this is, probably, sound doctrine." EdwardJenks, The Book ofEnglish Law 118 (P.B. Fairest ed., 6th ed. 1967).

corporation by estoppel. A business that is deemed, by operation of law, to be a corporation because a third party dealt with the business as if it were a corpora­ tion, thus preventing the third party from holding a shareholder or officer of the corporation individually liable. See ESTOPPEL. [Cases: Corporations (:::::;34.] corpora.tion by prescription. A corporation that, though lacking a charter, has acquired its corporate status through a long period of operating as a corpo­ ration.• Such an entity may engage in any enterprises that are not manifestly inconsistent with the purposes for which it is assllmed to have been created. - Also termed common-law corporation. [Cases: Corpora­ tions corporation de facto. See de facto corporation. corporation de jure. See de jure corporation. corporation for profit. See for-profit corporation. corporation qualified to do business. See admitted corporation. corporation sole. A series of sllccessive persons holding an office; a continuous legal personality that is attrib­ uted to successive holders of certain monarchical or ecclesiastical positions, such as kings, bishops, rectors, vicars, and the like.• This continuous personality is viewed, by legal fiction, as having the qualities of a corporation. Cf. corporation aggregate (2). "It would have been quite possible to explain in the same way the devolution of the lands of the Crown, or of a bishopriC, or of a rectory, from the sovereign, bishop. or rector, to his successor; but English law has preferred to introduce for this purpose the fiction, peculiar to itself, of a 'corporation sole.'" Thomas E. Holland, The Elements of jurisprudence 350-51 (13th ed. 1924). "But English Law knows another kind of corporation, the 'corporation sole', in which the group consists, not of a number of contemporary members, but of a succession of single members, of whom only one exists at any given time. This kind of corporation has been described by eminent legal writers as a 'freak'; but it is a freak which undoubt· edly has a legal existence. It has been said that the Crown is the only common law lay corporation sole; though the Master of Trinity College, Cambridge, has been claimed as another example, and statutory examples, such as the Public Trustee and the Treasury Solicitor, are conspicuous. But the examples of ecclesiastical corporations sole are numerous. Every diocesan bishop. every rector of a parish, is a corporation sole, and can acquire and hold land (and now also personal property) even during the vacancy of the see or living, for the benefit of his successors, and can bind his successors by his lawful conveyances and con· tracts. But, obviously, the distinction between the bishop or rector, in his personal and in his corporate character, is even harder to grasp than that between the members of a corporation aggregate and the corporation itself .. " EdwardJenks, The Book of English Law 118-19 (P.B. Fairest ed., 6th ed. 1967).

dead corporation. See dissolved corporation.

392 de facto corporation (di fak-toh). An incompletely formed corporation whose existence operates as a defense to personal liability of the directors, officers, and shareholders who in good faith thought they were operating the business as a duly formed corpo­ ration. Also termed corporation de facto. [Cases: Corporations (:::::;28.] de jure corporation (di juur-ee). A corporation formed in accordance with all applicable laws and recognized as a corporation for liability purposes. - Also termed corporation de jure. [Cases: Corporations dissolved corporation. A corporation whose charter has expired or been revoked, relinquished, or volun­ tarily terminated. Also termed dead corporation. Corporations C~617-619.1 domestic corporation. (1819) 1. A corporation that is organized and chartered under the laws of a state. ­ The corporation is considered domestic by the char­ tering state. Cf. foreign corporation. 2. Tax. A corpo­ ration created or organized in the United States or under federal or state law. IRC (26 USCA) § (4). [Cases: Internal Revenue C=>3623; Taxation 3485.]

dormant corporation. 1. An inactive corporation; a legal corporation that is presently not operating. 2. A corporation whose authority to do business has been revoked or suspended either by operation of law (as by failure to pay franchise taxes) or by an act of the government official responsible for the corporation's authority. dummy corporation. (1899) A corporation whose only function is to hide the principal's identity and to protect the principal from liability. ecclesiastical corporation (i-klee-zee-as-t26; Homicide (::::>511.] "[Tlhe definition of 'corpus delicti' often becomes impor­ tant. (a) Essentially it signifies merely the fact of the specific loss or injury sustained, e.g., death of a victim or burning of a house. (b) To this is added also, by most courts, the criminal agency of some person (i.e., not mere accident). (c) A few courts also include evidence of the accused's identity with the deed; but this is absurd, for it virtually signifies making 'corpus delicti' synonymous with the whole charge. - Many courts treat this rule with a pedantic and unpractical strictness." John H. Wigmore, A Students' Textbook of the Law of Evidence 310 (1935). "One of the important rules of evidence in criminal cases is that which requires proof of the corpus delicti. Literally defined this term means 'the body of the offense,' or 'the substance of the crime.' In popular language it is used to describe the visible evidence of the crime, such as the dead body of a murdered person. Properly used, however, it is applicable to any crime and relates particularly to the act element of criminality; that is, that a certain prohibited act has been committed or result accomplished and that it was committed or accomplished by a criminal human agency." Justin Miller, "The Criminal Act," in Legal Essays in Tribute to Orrin Kip McMurray at 469, 478 (1935). "The phrase 'corpus delicti' does not mean dead body, but body of the crime, and every offense has its corpus delicti. Its practical importance, however, has been very largely limited to the homicide cases. It concerns the usability in a criminal case of a confession made by the defendant outside of court." Rollin M. Perkins & Ronald N. Boyce, Criminal Law 140 (3d ed. 1982).

2. Loosely, the material substance on which a crime has been committed; the physical evidence of a crime, such as the corpse of a murdered person.• Despite the common misunderstanding, a victim's body could be evidence of a homicide but the prosecutor does not have to locate or present the body to meet the corpus delicti requirement. corpus delicti rule. (1926) Criminal law. The doctrine that prohibits a prosecutor from proving the corpus delicti based solely on a defendant's extrajudicial state­ ments.• The prosecution must establish the corpus delicti with corroborating evidence to secure a convic­ tion. [Cases: Criminal Law (::::>412(6),517.3.] corpus juris (kor-p;Js joor-is). [Latin "body of law"] (1832) The law as the sum or collection oflaws . - Abbr. C,J. corpus juris Angliae (kor-p;Js joor-is ang-glee-ee). The entire body of English law, comprising the common law, statutory law, equity, and special law in its various forms. Corpus Juris Canonici (kor-p;Js joor-is b-nOn-;J-sI). [Latin] Hist. The body of the canon law, compiled from the decrees and canons of the Roman Catholic Church. • The Corpus Juris Canonici emerged during the 12th century, beginning with the publication of Gratian's Decretum (c. 1140). In addition to the Decretum, it includes Raymond of Pefiaforte's Liber Extra (1234), the Liber Sextus of Pope Boniface VIII (1298), the Cle­ mentines of Pope Clement V (1313), the Extravagantes Joannis of Pope John XXII (1325), and Extravagantes Communes published by Pope John's successors (1499­ 1502). In 1582, the entire collection was edited by a commission of church dignitaries and officially named the Corpus Juris Canonici. It remained the Catholic Church's primary body oflaw until the promulgation of the Code of Canon Law in 1917, now replaced by that of 1983. "After Gratian, later papal enactments, called 'decretals,' were collected and issued by the authority of various popes .... A revised edition of such 'decretals' ... was presented to Pope Gregory IX in 1234 - only a short while, therefore, after the final form of Magna Carta in 1225 ­ and issued by him with statutory force. The revision freely made changes in the text of the enactments and the resulting compilation in four 'books' was regarded as a 'Code,' corresponding to the 'Code' of Justinian, just as the Decretum of Gratian corresponded to the Digest.... All these compilations and collections were, from the six­ teenth century on, known as the Corpus Juris Canonici, the 'Body of Canon Law,' and formed the basis of the law administered in the Church courts." Max Radin, Handbook of Anglo-American Legal History 33-34 (1936).

Corpus Juris Civilis (kor-p;Js joor-is s;J-vil-is or s;J-vI-lis). The body of the civil law, compiled and codified under the direction of the Roman emperor Justinian in A.D. 528-556.• The collection includes four works - the Institutes, the Digest (or Pandects), the Code, and the Novels. The title Corpus Juris Civilis was not original, or even early, but was modeled on the Corpus Juris Canonici and given in the 16th century and later to editions of the texts of the four component parts of the Roman law. See ROMAN LAW. Cf. JUSTINIAN CODE.

corpus possess;onis

corpus possession is (kor-pds pd-zes[h]-ee-oh-nis)_ [Latin] Roman law_ The physical aspect of possession_ See animus possidendi under ANIMUS_ corpus pro corpore (kor-pds proh kor-pd-ree). [Latin] Hist. Body for body. _ This phrase commonly expressed the liability of a surety in a civil action (a mainpernor). See MAINPRISE. correal (kor-ee-dl or kd-ree-dl), adj. [fr. Latin correus "codebtor"] Roman law. Of or relating to liability that is joint and several. _ A correal debtor who paid an entire obligation had no right ofaction against a codebtor. See CORREUS; SOLIDARY. "If Aulus, having first obtained from Titius the promise of a hundred aurei, turned to Seius and said, Spondesne mihi, Sei, cosdem centum aUl"eos dal"e? (Do you engage, Seius, to give me the same one hundred aurei?), then if Seius answered, Spondeo, there was one single obligation for a hundred aurei, binding in full on each of the two debtors. Aulus could demand a hundred from Titius or a hundred from Seius, and in case of non-payment could sue either one, taking his choice between them, for the full amount. If either paid the hundred, whether willingly or by compulsion, the other was released: for there was but one debt, and that was now discharged. This kind of obligation is called correal obligation (correal, from con, and I"eus or I"ei, connected parties, parties associated in a common debt or credit)." James Hadley, Introduction to Roman Law 258 (1881).

correality (kor-ee-al-;Hee), n. The quality or state of being correal; the relationship between parties to an obligation that terminates when an entire payment is made by one of two or more debtors to a creditor, or a payment is made by a debtor to one of two or more creditors, "But there were circumstances. apart from indivisibility, in which each of the parties might be liable in full. .. Several were liable or entitled. each in solidum, under an obliga­ tion, but the thing was due only once. Satisfaction by, or to, one of those liable, or entitled. ended the whole obligation, and action by one of the joint creditors, or against one of the debtors, not only 'novated' the obligation between the actual parties. but destroyed it altogether as against the others. This relation is commonly called correality (correi debendi vel credendi)," w.w. Buckland, A Manual of Roman Private Law 349-50 (2d ed. 1939).

correal obligation. See OBLIGATION.

corrected policy. See INSURANCE POLICY.

correction, n. (14c) 1. Generally, the act or an instance

of making right what is wrong <mark your correc­ tions in red ink>. 2. A change in business activity or market price follOWing and counteracting an increase or decrease in the activity or price . See DOWN REVERSAL. 3. (usu. pI.) The pun­ ishment and treatment of a criminal offender through a program of imprisonment, parole, and probation . - correct, vb. cor­ rective (for senses 1 & 2), correctional (for sense 3), adj. correction, house of. See house of correction under HOUSE. correctional institution. See PRISON.

396

correctional system. A network of governmental agencies that administer a jurisdiction's prisons and parole system. corrective advertising. Advertising that informs con­ sumers that earlier advertisements contained a decep­ tive claim, and that provides consumers with corrected information. - This type of advertising may be ordered by the Federal Trade Commission. corrector of the staple. Hist. A clerk who records mer­ chants' transactions at a staple. See STAPLE (2). correi credendi (kor-ee-I kri-den-dI). [Latin] Roman law. Joint creditors. - Also termed correi stipulandi (stip­ ya-Ian-dr). See STIPULATIO. "The mode for stipu/atio is stated in the Institutes. Of several stipulators (correi credendi, active correality) each asks the debtor and he answers once for all. Of several promisors (correi debendi, passive correality) the creditor asks each and they answer together." w.w. Buckland, A Manual of Roman Private Law 350 (2d ed. 1939).

correi debendi (kor-ee-l di-ben-dI). [Latin] Roman & Scots law. Joint debtors. - Also termed correi promit­ tendi (proh-mi-ten-dI). See STlPULATIO. "Correi Debendi - The name given by the Roman law to persons jointly bound.... In the Scotch law. if bound sever­ ally, and not jointly and severally, each IS bound only for his share, whatever be the responsibility of the others." Hugh Barclay, A Digest of the Law of Scotland 196 (3d ed.

1865).

correi stipulandi. See CORREI CREDENDI. correlative (kd-rel-;l-tiv), adj. (16c) 1. Related or corre­ sponding; analogous. 2. Having or involving a recipro­ calor mutually interdependent relationship . correlative-rights doctrine. (1938) 1. Water law. The principle that adjoining landowners must limit their use ofa common water source to a reasonable amount. lOL] [Cases: Waters and Water Courses "Under the correlative rights doctrine .. , rights to ground­ water are determined by land ownership. However, owners of land overlying a single aquifer are each limited to a reasonable share of the total supply of groundwater. The share is usually based on the acreage owned." David H. Getches, Water Law in a Nutshell 249 (3d ed. 1997).

2. Oil & gas. The rule that a lessee's or landowner's right to capture oil and gas from the property is restricted by the duty to exercise that right without waste or neg­ ligence.• This is a corollary to the rule of capture. Cf. RULE OF CAPTURE (4). [Cases: Mines and Minerals C:=> 47.] correspondence audit. See AUDIT. correspondent. n. (17c) 1. The writer of a letter or letters. 2. A person employed by the media to report on events. 3. A securities firm or financial institution that performs services for another in a place or market that the other does not have direct access to. cor­ respond, vb. correspondent bank. See BANK. corresponding promise. See PROMISE. corresponding secretary. See SECRETARY.

cost

397 correus (kor-ee-. [Cases: Witnesses (;:::>41O-416.J 2. Formal confirmation or rat­ ification . corroborate, vb. corroborative (k;Hob-d-rd-tiv), adj. - corrobo­ rator (kd-rob-24.5.] corrupt-practices act. (1897) A federal or state statute that regulates campaign contributions and expendi­ tures as well as their disclosure. [Cases: Elections 317.1.] corsnaed, n. See ordeal of the morsel under ORDEAL corsned, n. See ordeal ofthe morsel under ORDEAL. corvee seigneuriale (kor-vay sen-yuu-ree-ahl). [FrenchJ Hist. Services due the lord of the manor. - Often short­ ened to corvee. cosen, vb. See COZEN. cosening, n. See COZENING. cosign, vb. (1967) To sign a document along with another person, usu. to assume obligations and to supply credit to the principal obligor. - cosignature, n . cosigner. See COMAKER. cosinage (k;)z-;m-ij). Hist. A writ used by an heir to secure the right to land held by a great-great-grandfather or certain collateral relatives. - Also spelled cosenage; cousinage. Also termed consanguineo; de consan­ guineo; de consanguinitate. Cf. AIEL; BESAYEL "[Tlhere is the closest possible affinity between the Mort d'Ancestor and the action of Cosinage. If I claim the seisin of my uncle, I use the one; if I claim the seisin of a first cousin, I use the other. But procedurally, the two stand far apart." 2 Frederick Pollock & Frederic William Maitland, History of English Law Before the Time of Edward f 569 (2d ed.1899).

cosmetic damages. See DAMAGES. cost, n. (13c) 1. The amount paid or charged for some­ thing; price or expenditure. Cf. EXPENSE. aboriginal cost. 'The cost of an asset incurred by the first company to use it for public utilities. acquisition cost. (I926) 1. An asset's net price; the original cost of an asset. - Also termed historical cost; original cost. 2. See LOAD.

after cost. A delayed expense; an expense, such as one for repair under a warranty, incurred after the prin­ cipal transaction. applied cost. A cost appropriated to a project before it has been incurred. average cost. The sum of the costs of beginning inven­ tory and the costs of later additions divided by the total number of available units. average variable cost. The average cost per unit of output, arrived at by dividing the total variable expenses of production by the total units of output. Cf.

LONG-RUN INCREMENTAL COST.

avoidable cost. A cost that can be averted if produc­ tion is held below a certain level so that additional expenses will not be incurred. carrying cost. 1. Accounting. The variable cost of stocking one unit of inventory for one year.• Carrying cost includes the opportunity cost of the capital invested in the inventory. - Also termed cost ofcarrying. 2. A current charge or noncapital expen­ diture made to prevent the causing or accelerating of the termination of a defeasible estate, as well as the sums spent on repairs required by the duty to avoid permissive waste. common cost. See indirect cost. cost of completion. (1852) Contracts. An element of damages based on the expense that would be incurred by the nonbreaching party to finish the promised per­ formance. [Cases: Damages (:::::>120, 121.] direct cost. (1818) The amount of money for material, labor, and overhead to produce a product. distribution cost. Any cost incurred in marketing a product or service, such as advertising, storage, and shipping. fixed cost. (1894) A cost whose value does not fluctu­ ate with changes in output or business activity; esp., overhead expenses such as rent, salaries, and depre­ ciation. Also termed fixed charge;fixed expense. flotation cost. (usu. pl.) A cost incurred in issuing addi­ tional stock. historical cost. See acquisition cost. implicit cost. See opportunity cost. indirect cost. (1884) A cost that is not specific to the production of a particular good or service but that arises from production activity in general, such as overhead allocations for general and administrative activities. Also termed common cost. manufacturing cost. The cost incurred in the produc­ tion of goods, including direct and indirect costs. marginal cost. (1891) The additional cost incurred in producing one more unit of output. mitigation cost. A party's expenditures to reduce an existing harm so that further damage might be halted, slowed, or diminished. [Cases: Damages C='42, 45.]

mixed cost. A cost that includes fixed and variable costs. net book cost. The cost of property when it was first acquired or devoted to pUblic use, minus accumulated depreciation. Also termed rate-base value. net cost. The cost of an item, arrived at by subtracting any financial gain from the total cost. opportunity cost. (1894) The cost of acquiring an asset measured by the value of an alternative investment that is forgone . Also termed implicit cost. original cost. See acquisition cost (1). prime cost. The true price paid for goods on a bona fide purchase. prophylactic cost. A party's expenditures to prepare property to withstand or prevent potential future harm.• These costs are not related to any existing property damage and are usu. not recoverable under insurance contracts. [Cases: Insurance (:::::>2277.] replacement cost. (1928) The cost of a substitute asset that is equivalent to an asset currently held.• The new asset has the same utility but mayor may not be identical to the one replaced. social cost. 'Ine cost to society of any particular practice or rule . sunk cost. (1916) A cost that has already been incurred and that cannot be recovered. tangible cost. Oil & gas. A particular expense asso­ ciated with drilling, such as the costs incurred for materials and land. - Drilling and testing costs are considered intangible. transaction cost. (usu. pI.) A cost connected with a process transaction, such as a broker's commission, the time and effort expended to arrange a deal, or the cost involved in litigating a dispute. unit cost. The cost of a single unit of a product or service; the total manufacturing cost divided by the number of units. variable cost. (1953) The cost that varies in the short run in dose relationship with changes in output. 2. (pl.) The charges or fees taxed by the court, such as filing fees, jury fees, courthouse fees, and reporter fees. Also termed court costs. 3. (pl.) The expenses of litigation, prosecution, or other legal transaction, esp. those allowed in favor of one party against the other. • Some but not all states allow parties to claim attor­ ney's fees as a litigation cost. - Also termed (in sense 3) litigation costs. [Cases: Costs (:::::>2, 146-194, 194.16; Federal Civil ProcedureC--'-J2721-2748.] accruing costs. Costs and expenses incurred after judgment. costs ofincrease. See COSTS OP INCREASE.

399

cost-of-living clause

costs ofthe day. Costs incurred in preparing for trial. costs to abide event. Costs incurred by a success­ ful party who is entitled to an award of those costs incurred at the conclusion of the matter; esp., appel­ late court's order for payment of costs to the party who finally prevails in a proceeding that has been returned to a lower court. [Cases: Costs ~69.1 interlocutory costs. Costs incurred during the pendency of an appeal. taxable cost. A litigation-related expense that the prevailing party is entitled to as part of the court's award. [Cases: Costs C=)2; Federal Civil Procedure ~2735.1

cost accounting. See cost accounting method under ACCOUNTING METHOD.

cost accounting method. See ACCOUNTING METHOD. cost and freight. A mercantile-contract term allocat­ ing the rights and duties of the buyer and the seller of goods with respect to delivery, payment, and risk ofloss, whereby the seller must (1) clear the goods for export, (2) arrange for transportation by water, and (3) pay the costs of shipping to the port of destination. - When the goods are safely stowed on the receiving ship while docked, the seller's delivery is complete; the risk of loss then passes to the buyer. This term is used only when goods are transported by sea or inland waterway. - Abbr. CF; CFR; C&F; CandF. Cf. COST, INSURANCE, AND FREIGHT; FREE ON BOARD. [Cases: Sales ~77(2), 202(5).] cost approach. (1949) A method of appraising real property, based on the cost of building a new structure with the same utility, assuming that an informed buyer would pay no more for the property than it would cost to build a new structure having the same usefulness. Cf. MARKET APPROACH; INCOME APPROACH. [Cases: Taxation C=348(4).] . cost basis. See BASIS (2). cost-benefit analysis. (1963) An analytical technique that weighs the costs of a proposed decision, holding, or project against the expected advantages, economic or otherwise. cost bill. See bill ofcosts under BILL (2). cost bond. See BOND (2). cost-book mining company. An association of persons organized for the purpose of working mines or lodes, whose capital stock is divided into shares that are trans­ ferable without the consent of other members. - The management ofthe mine is entrusted to an agent called a purser. [Cases: Mines and Minerals ~ 101.] cost depletion. Oil & gas. The recovery of an oil-and-gas producer's basis (i.e., investment) in a producing well by deducting the basis proportionately over the producing life of the well. Treas. Reg. § 1.611-2. Cf. PERCENTAGE DEPLETION.

"Under cost depletion, the taxpayer in an oil and gas property deducts the basis in the property from the income as oil and gas are produced and sold. Cost depletion is

calculated by a formula ... [that] relates the recovery of the taxpayer's investment to the proportion that the current unit sales of oil and gas bear to the total anticipated sales of oil and gas from the property. The investment is recov­ ered ratably over the life of the reserves." John S. lowe. Oil and Gas Law in a Nutshell 353 (3d ed. 1995).

cost, insurance, and freight. A mercantile-contract term allocating the rights and duties of the buyer and the seller of goods with respect to delivery, payment, and risk ofloss, whereby the seller must (1) clear the goods for export, (2) arrange for transportation by water, (3) procure insurance against the buyer's risk of damage during carriage, and (4) pay the costs of shipping to the port of destination. - The seller's delivery is complete (and the risk ofloss passes to the buyer) when the goods are loaded on the receiving ship while docked in the port of shipment. This term is used only when goods are transported by sea or inland waterway. - Abbr. ClF. Cf. COST AND FREIGHT; FREE ON BOARD. [Cases: Sales ~77(2).1 "'C.Lf.' is a mercantile symbol that is commonly used in international sales contracts. It is defined by section 2-320 of the UCC and by the Incoterms 1953 and the Revised American Foreign Trade Definitions 1941. Under all of these definitions the letters 'c.iJ.' mean that the price covers the cost of the goods, the cost of insuring them for the benefit of the order of the buyer, and the cost of carrying\ them to the named pOint, al most always the des· tination. like the other mercantile symbols, the meaning of 'C.I.F.' may be varied by agreement." William D. Hawkland, Uniform Commercial Code Series § 2·320:01 (1984).

elF destination. A contractual term denoting that the

price includes in a lump sum the cost of the goods and the insurance and freight to the named destina­ tion. Also termed ClF place ofdestination. [Cases: Sales~77(2).]

cost justification. (1938) Under the Robinson-Patman Act, an affirmative defense against a charge of price discrimination dependent on the seller's showing that it incurs lower costs in serving those customers who are paying less. 15 USCA § 13(a). cost-of-capital method. A means of measuring a utility's cost of acquiring debt and equity capital. - Regulatory commissions often use this method to determine a fair rate of return for the utility's investors. [Cases: Gas 14.4(10); Public Utilities ~ 129.] cost of carrying. See carrying cost under COST (1). cost of completion. See COST (1). cost-of-living adjustment. An automatic increase or decrease in the amount of money, usu. support or maintenance, to be paid by one party to another, the adjustment being tied to the cost-of-Iiving-adjustment figures maintained and updated by the federal govern­ ment. Abbr. COLA. cost-of-living clause. (1953) A provision (as in a contract or lease) that gives an automatic wage, rent, or benefit increase tied in some way to cost-of-living rises in the economy. - A cost-oC-living clause may also cover a decrease, though this is rare. See INFLATION. [Cases: Landlord and Tenant ~200.7.]

400

cost-of-living index

cost-of-living index. See CONSUMER PRICE INDEX. cost-plus contract. See CONTRACT. cost-push inflation. See INFLATION. costs de incremento. See COSTS OF INCREASE. costs of collection. (1833) Expenses incurred in receiv­ ing payment of a note; esp., attorney's fees incurred in the effort to collect a note. [Cases: Bills and Notes (>534.J costs of increase. Costs of court awarded in addition to what a jury awards.• Juries usu. awarded the success­ ful party only a small sum for costs. A party wishing to recoup the additional costs had to file an affidavit of increase setting forth what further costs were incurred by taking the matter through trial. - Also termed costs de incremento. See affidavit of increase under AFFIDA­ VIT. [Cases: Costs (>66; Federal Civil Procedure (> 2721-2748.J costs ofthe day. See COST (3). costs to abide event. See COST (3). cosurety. A surety who shares the cost of perform­ ing suretyship obligations with another. See SURETY. [Cases: Principal and Surety (>62, 191-200.J cosuretyship. The relation between two or more sureties who are bound to answer for the same duty of the principal, and who are jointly responsible for any loss resulting from the principal's default. cotarius (k;l-tair-ee-~s). [Law Latin] Hist. A socage­ tenure serf who holds land by paying rent and provid­ ing some personal services to the lord .• Both cotarius and coterellus serfs were also known as cottagers. Cf. COT ERELLUS.

cotenancy. See TENANCY. coterellus (kot-~-rel-~s). [Law LatinJ Hist. A serf who inhabits a cottage; a servile tenant whose person, issue, and goods are at the disposal of the lord. - Also spelled coterell. Cf. COTARIUS. "Coterellus .... A cottager. Considered by Spelman and others, the same with cotarius. But Cowell makes the dis­ tinction that the cotarius had free socage tenure, and paid a stated firm (rent) in provisions or money, with some occa­ sional customary service; whereas the coterellus seemed to have held in mere Villenage, and had his person and issue and goods disposed at the pleasure of the lord." 1 Alexander M. Burrill, A Law Dictionary and Glossary 387 (2d ed. 1867).

coterminous (koh-t~r-m~-n~s), adj. (18c) 1. (Of ideas or events) coextensive in time or meaning <Judge Smith's tenure was coterminous with Judge Jasper's>. 2. CON­ TERMINOUS (1).

cotland (kot-l~nd). Hist. Land held by a cottager, whether in socage or villeinage tenure. cotortfeasor (koh-tort-fee-z~r). One who, together with another, has committed a tort. See TORTFEASOR. [Cases: Torts (> 134.] cotrustee. One of two or more persons in whom the administration of a trust is vested .• The cotrustees form a collective trustee and exercise their powers

jointly. - Also termed joint trustee. See TRUSTEE. [Cases: Trusts (>238.J cotset (kot-set). Hist. A villein who provides labor to a lord in exchange for a cottage and plot ofland. - Also termed cotsetus. cottier (kot-ee-~r). 1. Hist. A serf who lives in a cottage; a cottager. • Over time, cottier has come to refer to a day laborer or a rural dweller. 2. Hist. Irish law. A tenant who leases a house and a small (usu. two acre or less) plot ofland. couchant and levant (kow-ch~nt / lev-~nt), adj. See LEVANT AND COUCHANT.

council. (12c) 1. A deliberative assembly . common council. 1. In some cities, the lower branch of a city council. [Cases: Municipal Corporations (>82.] 2. In some cities, the city's governing board. [Cases: Municipal Corporations (>80.J general council. A body of elected persons who repre­ sent all the citizens of a territory or members of an organization. select council. In some cities, the upper branch of a city council. 2. An administrative or executive body . councillor. See COUNCILOR. Council of Economic Advisers. A three-member council in the Executive Office of the President respon­ sible for analyzing the national economy and advising the President on economic matters .• Created by the Employment Act of 1946, it now functions under Reorganization Plan No.9 of 1953. Its members are appointed by the President with the advice and consent of the Senate. - Abbr. CEA. Council of the North. Hist. A body used by the Tudors to administer the northern parts of England (esp. Yorkshire) during the 16th and 17th centuries.• The council probably predated the Tudors, but Henry VIII revived it. In addition to enforcing Crown policy in the northern territories, the appointees (many of whom were lawyers) exercised wide criminal and civil juris­ diction. The Council disbanded ca. 1640. Council on Environmental Quality. A three-member council in the Executive Office of the President respon­ sible for developing and recommending national policy on environmental quality.• The council was created by the National Environmental Policy Act of 1969. Its members are appointed by the President with the advice and consent of the Senate. 42 USCA § 4321 et seq. & § 4371 et seq. - Abbr. CEQ. [Cases: Environ­ mental Law (>571.J councilor, n. (i5c) A person who serves on a council, esp. at the local level. - Also spelled councillor. - council­ lorship, n. counsel, n. (13c) 1. Advice or assistance 53.] "This word ... is in our old law-books used synonymously with declaration .... But when the suit embraces two or more causes of action (each of which of course requires a

count different statement), or when the plaintiff makes two or more different statements of one and the same cause of action, each several statement is called a count, and all of them, collectively, constitute the declaration." 1 John Bouvier, A Law Dictionary 245 (1839).

common count. IIist. In a plaintiff's pleading in an action for debt, boilerplate language that is not founded on the circumstances of the individual case but is intended to guard against a possible variance and to enable the plaintiff to take advantage of any ground of liability that the proof may disclose.• In the action for indebitatus assumpsit, the common count stated that the defendant had failed to pay a debt as' promised. See indebitatus assumpsit under ASSUMPSIT.

general count. A count that states the plaintiffs claim without undue particularity. money count. Rist. A count, usu. founded on a simple contract, giving rise to a claim for payment of money. "Simple contracts, express or implied, resulting in mere debts. are of so frequent occurrence as causes of action, that certain concise forms of counts were devised for suing upon them. These are called the 'indebitatus' or 'money counts.'" 2 Stewart Rapalje & Robert L. lawrence, A Dierion· ayy of AmeriCCln and English Law 833 (1883).

multiple counts. (1941) Several separate causes of action or charged offenses contained in a single pleading or indictment. [Cases: Indictment and Information ~ 125, 126; Pleading omnibus count (ahm-ni-b<Js). A count that combines into one count all money claims, claims for goods sold and delivered, claims for work and labor, and claims for an account stated. separate count. (18c) One of two or more criminal charges contained in one indictment, each charge constituting a separate indictment for which the accused may be tried. [Cases: Indictment and Infor­ mation ~97.] several count. One of two or more counts in a pleading, each ofwhich states a different cause ofaction. [Cases: 53.] Pleading special count. (18c) A section ofa pleading in which the plaintiff's claim is stated with great particularity­ llSU. employed only when the pleading rules require specificity. [Cases: Pleading ~ 18, 50.] 3. A canvassing. See CANVASS (2).4. Hist. The plain­ tiff's declaration, or initial pleading, in a real action. See DECLARATION (7). 5. Patents. The part of a patent application that defines the subject matter in a priority contest (I.e., an interference) between two or more appli­ cations or between one or more applications and one or more patents. See INTERFERENCE (3). ICases: Patents (;:::·lO6(2).] count, vb. (l7c) 1. In pleading, to declare or state; to narrate the facts that state a claim. 2. Rist. To plead orally; to plead or argue a case in court. counted vote. See VOTE (4).

402

counter. Hist. An advocate or professional pleader; one who counts (Le., orally recites) for a client. • Counters had coalesced into an identifiable group practicing before the Common Bench by the beginning of the 13th century. They were the leaders of the medieval legal profession, and over time came to be known as serjeants at law. - Also spelled countor; contor; counteur. See SERJEANT-AT-LAW.

counteraction. See COUNTERCLAIM. counteraffidavit. See AFFIDAVIT. counterbond. See BOND (2). counterclaim, n. (18c) A claim for relief asserted against an opposing party after an original claim has been made; esp., a defendant's claim in opposition to or as a setoff against the plaintiff's claim. - Also termed counteraction; countersuit; cross-demand. Cf. CROSS­ CLAIM. [Cases: Federal Civil Procedure ~775-784; Pleading ~ 138; Set-off and Counterclaim counterclaim, vb. counterdaimant, n. "Under [Fed. R. Civ. P.] Rule 13 the court has broad discre­ tion to allow claims to be joined in order to expedite the resolution of all controversies between the parties in one suit. Rule 13(c) specifically provides that the counterclaim­ ant is not limited by recovery sought by the opposing party but may claim relief in excess of that amount. Further, the general legal rule is that it is immaterial whether a counterclaim is legal or equitable for purposes of determin­ ing whether it properly is brought under Rule 13.... The expectation is that this liberal joinder policy will further the elimination of circuity of action and multiple litigation." 6 Charles Alan Wright et aI., FedeYCII PYClctice and Procedure § 1403, at 15-16 (2d ed. 1990).

compulsory counterclaim. (1938) A counterclaim that must be asserted to be cognizable, usu. because it relates to the opposing party's claim and arises out of the same subject matter.• If a defendant fails to assert a compulsory counterclaim in the original action, that claim may not be brought in a later, separate action (with some exceptions). See Fed. R. Civ_ P. 13(a). [Cases: Federal Civil Procedure C-'--::;775; Judgment (;:::585(4); Set-off and Counterclaim] ~60.1 permissive counterclaim. (I924) A counterclaim that need not be asserted to be cognizable, usu. because it does not arise out of the same subject matter as the opposing party's claim or involves third parties over which the court does not have jurisdiction.• Permis­ sive counterclaims may be brought in a later, separate action. See Fed. R. Civ. P. 13(b). counter-complaint. See COMPLAINT. counterdeed. See DEED. counterfeisance (kown-t<Jr-fee-z<Jnts). Archaic. The act of counterfeiting. counterfeit, vb. (l4c) To unlawfully forge, copy, or imitate an item, esp. money or a negotiable instru­ ment (such as a security or promissory note) or other officially issued item of value (such as a postage stamp or a food stamp), or to possess such an item without authorization and with the intent to deceive or defraud by presenting the item as genuine.• Counterfeiting includes producing or selling an item that displays a

countez

403

reproduction of a genuine trademark, usu. to deceive buyers into thinking they are purchasing genuine mer­ chandise. See 18 USCA §§ 470 et seq. [Cases: Counter­ feiting Trademarks ~ 1432.] - counterfeiting, n. - counterfeit, n. - counterfeit, adj. "Literally a counterfeit is an imitation intended to pass for an original. Hence it is spurious or false, and to counterfeit is to make false. For this reason the verbs counterfeit and forge are often employed as synonyms and the same is true to some extent of the corresponding nouns. No error is involved in this usage but it is important to distinguish between the words as far as possible when used as the labels of criminal offenses, In the most restricted sense, [c]ounterfeiting is the unlawful making of false money in the simiJitude of the genuine, At one time under English statutes it was made treason. Under modern statutes it is a felony," Rollin M. Perkins & Ronald N. Boyce, Criminal Law 431-32 (3d ed, 1982),

Counterfeit Access Device and Computer Fraud and Abuse Act of 1984. A federal statute that criminalizes various computer-related activities such as accessing without permission a computer system belonging to a bank or the federal government, or using that access to improperly obtain anything of value. 18 USCA § 1030. [Cases: Telecommunications :;:; 1342, 1348.] counterfeiter. A person who forges or otherwise makes a copy or an unauthorized imitation of something (esp. a document, currency, or another's Signature) with the intent to deceive or defraud. counterfeiting, n. The unlawful forgery, copying, or imi­ tation of an item, esp. money or a negotiable instru­ ment (such as a security or promissory note) or other officially issued item of value (such as a postage stamp), or the unauthorized possession of such an item, with the intent to deceive or defraud by claiming or passing the item as genuine. See 18 USCA §§ 470 et seq. [Cases: Counterfeiting . - counterfeit, vb. counter­ feit, n. - counterfeit, adj. counterfeit mark. See counterfeit trademark under TRADEMARK.

counterfeit recording. Copyright. An unauthorized copy of a copyright-protected recording's sounds, artwork, label, trademark, or packaging. - Also termed bootleg recording. [Cases: Copyrights and Intellectual Property counterfeit trademark. See TRADEMARK. counterfoit (kown-t~r-foyl), n. A detachable part of a writing on which the particulars of the main part are summarized.• The most common example is a check stub, on which the date, the payee, and the amount are typically noted. counterletter. Civil law. A document in which the parties to a simulated contract record their true intentions. La. Civ. Code art. 2025 .• For example, the record owner of real property may acknowledge in a counterletter that another person actually owns the property; the counterletter may then be used when the property is to be reconveyed after a period. A counterletter can have no effect against a third party acting in good faith. See simulated contract under CONTRACT.

countermand (kown-t~r-mand), n. (16c) 1. A contradic­ tory command that overrides or annuls a previous one. 2. An action that has the effect of voiding something previously ordered; a revocation. - countermand (kown-t~r-mand or kown-), vb. counteroffer, n. (I8c) Contracts. An offeree's new offer that varies the terms of the original offer and that ordi­ narily rejects and terminates the original offer.• A late or defective acceptance is considered a counteroffer. See MIRROR-IMAGE RULE. [Cases: Contracts counteroffer, vb. counterofferor, n. counterpart. (l5c) 1. In conveyancing, a correspond­ ing part of an instrument . 2. One oftwo or more copies or duplicates of a legal instrument . "Formerly 'part' was used as the opposite of 'counterpart,' in respect to covenants executed in duplicate, but now each copy is called a 'counterpart.'" 2 Stewart Rapalje & Robert L. Lawrence, A Dictionary ofAmerican and English law 927 (1883), "Counterparts are not nowadays written on the same parchment, but that which is executed by the grantor of an interest is called the 'original,' while that which is executed by the party to whom the interest passes for example, a lessee is called the 'counterpart.'" G.c. Cheshire, Modern Law of Real Property 674 (3d ed. 1933).

counterpart writ. See WRIT. counterpromise, n. (l8c) A promise made in exchange for another party's promise . See bilat­ eral contract under CONTRACT. [Cases: Contracts 55.]- counterpromise, vb. counter-roll. Hist. A record kept by an officer as a check on another officer's record, esp. the rolls maintained by a sheriff and a coroner. countersign, vb. (l6c) To write one's own name next to someone else's to verify the other signer's identity. [Cases: Signatures - countersignature, n. countersuit. See COl.iNTERCLAIM. countertrade. A type of international trade in which purchases made by an importing nation are linked to offsetting purchases made by the exporting nation. "Countertrade is barter in modern clothes. It developed rapidly as a form of doing business with the USSR and Eastern European nations in the 1970s and 19805, before the major economic and political reforms tended to diminish its emphasis as a means of doing business," Ralph H. Folsom & Michael W. Gordon, International Business Transactions § 2,1, at 46 (1995).

countervailable subsidy. See SUBSIDY. countervailing duty. See DUTY (4). countervailing equity. See EQUITY. counter will. See mutual will under WILL. counteur. See COUNTER. countez (kawn-teez). [Law French] Hist. A direction given by a clerk of a court to a crier, after a jury was sworn, to count the jury members.

404

Counting House of the King's Household "Of this ignorance we may see daily instances, in the abuse of two legal terms of ancient French; one, the prologue to all proclamations, 'oyez, or hear ye,' which is generally pronounced most unmeaningly, '0 yes:' the other, a more pardonable mistake, viz., when ajury are all sworn, the officer bids the crier number them, for which the word in law-french is, 'countez;' but we now hear it pronounced in very good English, 'count these.'" 4 William Blackstone, Commentaries on the Laws of England 334 n.S (1769).

Counting House of the King's Household. See BOARD OF GREEN CLOTH.

countor. See COUNTER. country. 1. A nation or political state; STATE (1). 2. The territory of such a nation or state. county. (14c) The largest territorial division for local gov­ ernment within a state, generally considered to be a political subdivision and a quasi-corporation .• Every county exists as a result of a sovereign act oflegislation, either constitutional or statutory, separating it from the rest of the state as an integral part of its territory and establishing it as one of the primary divisions of the state for purposes of civil administration. - Abbr. co. [Cases: Counties C=::' 1.] "A county is a part of the realm, inti rely governed by one sheriff under the king, but all subject to the general govern· ment of the realm; and therefore every county is as it were an intire body of itself, so that upon a feoffment of lands in many towns in one county, livery of seisin made in one parcel in anyone of the towns in the name of all, sufficeth for all the lands in all the other towns within the same county: but upon a feoffment of lands in divers counties, there must be livery of seisin in every county." Sir Henry Finch, Law, or a Discourse Thereof 79 (1759).

foreign county. Any county separate from that of a county where matters arising in the former county are called into question, though both may lie within the same state or country. county agent. See juvenile officer under OFFICER (1). county attorney. An attorney who represents a county in civil matters and, in some jurisdictions, prosecutes criminal offenders. county auditor. See AUDITOR. county bond. See BOND (3). county commissioner. See COMMISSIONER. county court. See COURT. county judge. See JUDGE. county officer. See OFFICER (1). county palatine (pal-~-trn or -tin). Hist. A county in which the lord held certain royal privileges, such as the right to pardon a felon or to have indictments recite that offenses were committed against the lord's - rather than the king's - peace.• In England, there were three such counties: Chester, Durham, and Lancaster. The separate legal systems in these counties were slowly eliminated; the last vestiges of a separate system were abolished by the Courts Act (1971). Cf. proprietary gov­ ernment under GOVERNMENT. "The counties palatine were Chester, Durham, and Lan· caster. Whatever may be the precise date at which these counties became 'Palatine,' it seems likely that there was

in Saxon times a jurisdiction equivalent to that of the Palatine earl, and originating in usurpation and necessity. The Central Government was too far away both before and after the Conquest to control effectually the administration of the Marches, which were always turbulent and lawless districts." A.T. Carter, A History of English Legal Institutions 192 (4th ed. 1910).

county property. Property that a county is authorized to acquire, hold, or sell. [Cases: Counties C=::' 103.] county purpose. An objective pursued by a county; esp., one that a county levies taxes for. [Cases: Counties C=::' 190.1.] county seat. The municipality where a county's principal offices are located. - Also termed county town. [Cases: Counties C=::'25.] county supervisor. See county commissioner under COM­ MISSIONER.

county town. See COUNTY SEAT. county warrant. See WARRANT (3). coup d'etat (koo day-tah). [French "stroke of state"] A sudden, usu. violent, change of government through seizure of power. coupon (koo-pon). An interest or dividend certificate that is attached to another instrument, such as a bond, and that may be detached and separately presented for payment of a definite sum at a specified time. - Also termed interest coupon. coupon bond. See BOND (3). coupon interest rate. See coupon rate under INTEREST RATE.

coupon note. See NOTE (1). coupon rate. See INTEREST RATE. coupon security. See SECURITY. coupon yield. See YIELD. Cour de Cassation. See COURT OF CASSATION. courier. A messenger, esp. one who delivers parcels, packages, and the like .• In international law, the term denotes a messenger duly authorized by a sending state to deliver a diplomatic pouch. course ofbusiness. (17c) The normal routine in managing a trade or business. - Also termed ordinary course of business; regular course of business; ordinary course; regular course. [Cases: Customs and Usages C=::'9.] course of dealing. (16c) An established pattern of conduct between parties in a series of transactions (e.g., multiple sales of goods over a period of years).• If a dispute arises, the parties' course of dealing can be used as evidence of how they intended to carry out the transaction. Cf. COURSE OF PERFORMANCE; trade usage under USAGE. [Cases: Contracts C=::' 170.] "A course of dealing is distinguishable from a course of performance. As defined by the [UCC], 'course of dealing' relates to conduct under other transactions which occurred with regularity prior to the formation of the present contract, while 'course of performance' relates to the conduct of the parties under the contract in question subsequent to its formation. However, in meaning the

two expressions are essentially equivalent." Ronald A. Anderson, Uniform Commercial Code § 1-205:86 (1997).

course of employment. (I7c) Events that occur or cir­ cumstances that exist as a part of one's employment; esp., the time during which an employee furthers an employer's goals through employer-mandated direc­ tives. Cf. SCOPE OF EMPLOYMENT; ZONE OF EMPLOY­ MENT.

course of performance. (l8c) A sequence of previous performance by either party after an agreement has been entered into, when a contract involves repeated occasions for performance and both parties know the nature of the performance and have an opportunity to object to it.• A course of performance accepted or acquiesced in without objection is relevant to deter­ mining the meaning of the agreement. Cf. COURSE OF DEALING; trade usage under USAGE. [Cases: Contracts (::::J 170.] "[(lommon law courts have recognized the necessity of learning how people usually talk and what they usually mean by their language before one interprets their con­ tracts .... '[Clourse of performance' refers to a pattern of performance of the contract that is the subject of the dispute, as contrasted to 'course of dealing' which refers to the pattern of performance in prior contracts between the same parties." Claude Rohwer & Gordon D. Schaber, Contracts in a Nutshell 171-73 (4th ed. 1997). ''The phrase 'course of performance' relates to the way the parties have acted in performance of the particular contract in question. The judicial inquiry on this point is limited to the way the parties have acted in carrying out the particular contract that is in controversy, as distinguished from a general pattern of dealing that may embrace many other contracts or transactions between the parties." Ronald A. Anderson, Uniform Commercial Code § 1-205:74 (1997).

course of trade. See trade usage under USAGE. court, n. (12c) 1. A governmental body consisting of one or more judges who sit to adjudicate disputes and administer justice . "A court ... is a permanently organized body, with inde­ pendent judicial powers defined by law, meeting at a time and place fixed by law for the judicial public administration of justice." 1 Williamj. Hughes, Federal Practice, Jurisdiction & Procedure § 7, at 8 (1931).

2. "The judge or judges who sit on such a governmen­

tal body . 3. A legislative assembly . 4. The locale for a legal proceeding . 5. The building where the judge or judges convene to adjudi­ cate disputes and administer justice . - Also termed (in sense 5) courthouse. admiralty court. See ADMIRALTY (1). appeals court. See appellate court. appellate court. (18c) A court with jurisdiction to review decisions of lower courts or administrative agencies. - Also termed appeals court; appeal court; court of appeals; court of appeal; court of review. [Cases: Courts C='203-254.J

"Appellate courts are among the most important institu­ tions of governance in the United States. Through their review of trial court and administrative agency decisions they ensure that those bodies function lawfully and that litigants receive justice under law. Moreover, they provide authoritative interpretations of statutory and constitu­ tional provisions and control the shaping of the common law in response to ever-changing circumstances; they are thus major sources of law." Daniel John Meador & Jordana Simone Bernstein, Appellate Courts in the United States v (1994).

Archdeacon's court. See COURT OF ARCHDEACON. Article I Court. See legislative court. Article III Court. See ARTICLE III COURT. Bail Court. See BAIL COURT. Bankruptcy Court. See BANKRUPTCY COURT. baronial court. Hist. A feudal court established by the owner of extensive lands held directly of the king under military tenure. base court. Archaic. An inferior court. basement court. See BASEMENT COURT. bishop'S court. See BISHOP'S COURT. borough court. See BOROUGH COURT. business court. (1914) A court that handles exclusively commercial litigation. _ In the late 20th century, business courts emerged as a way to unclog the general dockets and to dispose of commercial cases more efficiently and consistently. Also termed com­ mercial court; commercial division. byrlaw court. See BYRLAW COURT. Central Criminal Court. See CENTRAL CRIMINAL COURT.

children's court. See juvenile court (1). church court. See ecclesiastical court. circuit court. (17c) I. A court usu. having jurisdiction over several counties, districts, or states, and holding sessions in all those areas. See CIRCUIT; CIRCUIT-RID­ ING. 2. UNITED STATES COURT OF APPEALS. city court. See municipal court. civil court. (16c) A court with jurisdiction over non­ criminal cases. - Abbr. Civ. Ct. claims court. See court ofclaims. closed court. See CLOSED COURT. Commerce Court. Rist. A federal court that had the power to review and enforce determinations of the Interstate Commerce Commission.• The Commerce Court existed from 1910 to 1913. commercial court. 1. See business court. 2. English law. A court that hears business disputes under simpli­ fied procedures designed to expedite the trials .• This court was created in 1971 as part of the Queen's Bench Division of the High Court of Justice. commissary court. 1. A court of general ecclesiasti­ cal jurisdiction presided over by four commission­ ers appointed by the Crown from the Faculty of

406

court

Advocates. 2. Scots law. A sheriff or county court that appoints and confirms the executors of decedents who have personal property in Scotland. 3. Hist. Scots law. A supreme court in which matters ofprobate and divorce were decided .• This court was established in Edinburgh in 1563 to hear cases that had previ­ ously come under the jurisdiction of the ecclesiastical commissary court. It was absorbed by the Court of Session in 1836. commissioner's court. In certain states, a court having jurisdiction over county affairs and often function­ ing more as a managerial group than as a judicial tribunal. common pleas court. See COURT OF COMMON PLEAS.

commonwealth court. 1. In some states, a court of general jurisdiction. [Cases: Courts (:::::> 118.] 2. In Pennsylvania, a court that hears suits against the state and reviews decisions of state agencies and officials. [Cases: Courts (:::::>242(1).] competent court. See court ofcompetent jurisdiction. conciliation court. See small-claims court. consistory court. See CONSISTORY COURT. constitutional court. (1823) 1. A court named or described and expressly protected in a constitution; esp., ARTICLE III COURT. 2. A court whose jurisdic­ tion is solely or primarily over claims that legislation (and sometimes executive action) is inconsistent with a nation's constitution.• Germany, for example, has state constitutional courts and a Federal Constitu­ tional Court. consular court (kon-sd-ldr). A court held by the consul of one country within the territory of another. • Consular courts are created by treaty, and their jurisdiction is usu. limited to civil cases. The last of the U.S. consular courts (Morocco) was abolished in 1956. [Cases: Ambassadors and Consuls (:::::>6.] coroner's court. English law. A common-law court that holds an inquisition if a person died a violent or unnatural death, died in prison, or died suddenly when the cause is not known.• The court also has jurisdiction over treasure trove. corporation court. In some jurisdictions, a court that serves an incorporated municipality. See municipal court. county court. (16c) 1. A court with powers and jurisdic­ tion dictated by a state constitution or statute .• The county court may govern administrative or judicial matters, depending on state law. - Also termed parish court; (in Latin) curia comitatus. [Cases: Counties 38; Courts (:::::> 182.] 2. See probate court. court above. (l7c) A courtto which a case is appealed.­ Also termed higher court; upper court. court a quo (ay kwoh). A court from which a case has been removed or appealed.

court below. (17c) A trial court or intermediate appel­ late court from which a case is appealed. - Also termed lower court. court christian. See ecclesiastical court. court de facto. See de facto court. court merchant. Hist. A court of limited jurisdiction that decided controversies arising between merchants, dealers, shipmasters, supercargoes, and other, usu. transient, people connected with trade .• Cases were usu. tried before a jury of merchants. court not of record. An inferior court that is not required to routinely make a record of each proceed­ ing and usu. does not. [Cases: Courts (:::::>49.] court of appeals. (17c) 1. An intermediate appellate court. - Also termed (as in California and England) court of appeal. See appellate court. 2. In New York and Maryland, the highest appellate court within the jurisdiction. [Cases: Courts (:::::>226, 237(1).] court ofchivalry. See HIGH COURT OF CHIVALRY. court of claims. A court with the authority to hear claims made against a state (or its political subdivi­ sion) for cases in which the state has waived sovereign immunity. - Also termed claims court. See UNITED STATES COURT OF FEDERAL CLAIMS. [Cases: States (:::::> 184.] court ofcompetent jurisdiction. A court that has the power and authority to do a particular act; one rec­ ognized by law as possessing the right to adjudicate a controversy. - Also termed competent court. court ofdomestic relations. See family court. court ofequity. (16c) A court that (1) has jurisdiction in equity, (2) administers and decides controversies in accordance with the rules, principles, and precedents of equity, and (3) follows the forms and procedures of chancery. Cf. court oflaw. [Cases: Courts (:::::>42(7).] court offinal appeal. 1. See court of last resort. 2. Eccles. law. (cap.) JUDICIAL COMMITTEE OF THE PRIVY COUNCIL.

court offirst instance. See trial court. court ofgeneral jurisdiction. (18c) A court having unlimited or nearly unlimited trial jurisdiction in both civil and criminal cases. - Also termed general­ jurisdiction court. [Cases: Courts (:::::> 117.5-158.1.] court of impeachment. See COURT FOR THE TRIAL OF IMPEACHMENTS.

court of inquiry. 1. Hist. In English law, a court appointed by the monarch to ascertain whether it was proper to use extreme measures against someone who had been court-martialed. 2. Hist. In American law, an agency created under articles of war and vested with the power to investigate the nature of a transac­ tion or accusation of an officer or soldier. 3. In some jurisdictions, a procedure that allows a magistrate to examine witnesses in relation to any offense that the magistrate has a good-faith reason to believe was committed.

407

court

court ofinstance. See trial court. court oflast resort. (17c) The court having the authority to handle the final appeal of a case, such as the U.S. Supreme Court. court oflaw. (16c) 1. Broadly, any judicial tribunal that administers the laws of a state or nation. 2. A court that proceeds according to the course of the common law, and that is governed by its rules and principles. Cf. court ofequity. court oflimited jurisdiction. A court with jurisdiction over only certain types ofcases, or cases in which the amount in controversy is limited. [Cases: Courts ~ 159-19il court ofordinary. See probate court. court oforiginal jurisdiction. (I8c) A court where an action is initiated and first heard. [Cases; Courts 117.5-15S.1,206.] court ofrecord. (ISc) 1. A court that is required to keep a record of its proceedings.• The court's records are presumed accurate and cannot be collaterally impeached. See OF RECORD (2). [Cases; Courts (;:::::
2. A court that may fine and imprison people for contempt. "A court of record is, strictly speaking, a court which has power to fine and imprison." Lancelot Feilding Everest, Everest and Strode's Law of Estoppel 13 (1923).

court ofreview. See appellate court.

court ofspecial jurisdiction. See limited court.

court ofspecial session. (1813) A court that has no

stated term and is not continuous, but is organized only for hearing a particular case. [Cases: Courts (;:::::) 64.]

court of summary jurisdiction. See magistrate's court. criminal court. A court with jurisdiction over criminal matters. Crown Court. See CROWN COURT. Dean ofGuild Court. See DEAN OF GUILD COURT. de facto court (di fak-toh). 1. A court functioning under the authority of a statute that is later adjudged to be invalid. - Also termed court defacto. [Cases: Courts

~59.l2.

A court established and acting under the authority of a de facto government. dependency court. A court having jurisdiction over matters involving abused and neglected children, foster care, the termination of parental rights, and (sometimes) adoption. diocesan court (dI-ahs-i-sin). Eccles. law. A court exer­ cising general or limited jurisdiction (as determined by patent, local custom, or legislation) of matters arising within a bishop's diocese .• Diocesan courts include the consistorv court, the courts of the com­ missaries, and the co~rts of archdeacons. district court. (I8c) 1. A trial court having general jurisdiction within its judicial district. Abbr. D.C. [Cases: Courts 191.] 2. Scots law. A local court, usu. staffed by lay magistrates, with jurisdiction over petty crimes. divided court. See DIVIDED COURT. divisional court. An English court made up of two or more judges from the High Court of Justice sitting in special cases that cannot be disposed of by one judge.• Each division of the High Court has a divi­ sional court, e.g., the Divisional Court of the Family Division. With the exception of the Divisional Court of the Chancery Division, which has jurisdiction to review land-registration appeals from the county court, almost all judicial appeals are from decisions of a magistrates' court. The Divisional Court of the Queen's Bench DiVision hears appeals from the Crown Court or the magistrates' court by way of case stated in criminal prosecutions, which is the most frequent use of a divisional court. domestic court. (1801) 1. A court having jurisdiction at the place of a party's residence or domicile. 2. See family court. domestic-relations court. See family court. drug court. A court that hears cases against nonvio­ lent adults and juveniles, who are often first-time offenders and who are usu. charged with posses­ sion of a controlled substance or with committing a minor drug-related crime .• Drug courts focus on treatment rather than on incarceration. Cf. problem­ solVing court. [Cases: Chemical Dependents 12; Sentencing and Punishment (:..-::::02051.] ecclesiastical court (i-klee-zee-as-ti-k;:!l). 1. A religiOUS court that hears matters concerning a particular religion. 2. In England, a court having jurisdiction over matters concerning the Church of England (the established church) as well as the duties and rights of the people serving it, but whose modern jurisdiction is limited to matters of ecclesiastical discipline and church property. Also termed church court; court christian; spiritual court; (in Latin) christianitatis curia; curia christianitatis. [Cases: Religious Societ­ ies 14.] 'The ecclesiastical courts exercised a jurisdiction which played a part of the development of the English legal system, and their work was not confined to controlling

the clergy and doctrines of the Church. The jurisdiction of these courts was of particular significance before the Reformation, but, in certain matters and especially in matrimonial causes and the law of succession to property on death (testate and intestate succession), it remained of importance till the middle of the nineteenth century." 1 A.K.R. Kiralfy, Potter's Historica!lntroduction to English Law and Its Institutions 211 (4th ed. 1958).

examining court. (ISc) A lower court (usu. preSided over by a magistrate) that determines probable cause and sets bail at a preliminary hearing in a criminal case. family court. (1923) A court having jurisdiction over matters involving divorce, child custody and support, paternity, domestic violence, and other family-law issues. Also termed domestic-relations court; court ofdomestic relations; domestic court. [Cases: Courts ~) 174.]

federal court. (ISc) A court having federal jurisdiction,

including the u.s. Supreme Court, circuit courts of appeals, district courts, bankruptcy courts, and tax courts. - Also termed United States court. foreign court. (16c) I. The court of a foreign nation. 2. The court of another state. forty-days court. See COURT OF ATTACHMENTS. franchise court. See FRANCHISE COURT. full court. (16c) A court session that is attended by all the court's judges; an en bane court. Also termed

full bench. General Court. See GENERAL COURT. general-jurisdiction court. See court ofgeneral juris­ diction. High Commission Court. See COURT OF HIGH COM­ MISSION.

High Court. 1. See HIGH COURT OF JUSTICE. 2. See HIGH COURT OF JUSTICIARY.

High Court ofAdmiralty. See HIGH COURT 01' ADMI­ RALTY.

High Court of Chivalry. See HIGH COURT OF CHIVALRY.

High CaurtofDelegates. See COURT OF DELEGATES. High Court of Errors and Appeals. See COURT OF ERRORS AND APPEALS.

High CaurtafJustice. See HIGH COURT OF JUSTICE. High Court ofJusticiary. See HIGH COURT OF JUSTI­ CIARY.

higher court. See court above. highest caurt. (l6c) The court oflast resort in a particu­ lar jurisdiction; a court whose decision is final and cannot be appealed because no higher court exists to consider the matter. - The U.S. Supreme Court, for example, is the highest federal court. hot court. (1972) A court, esp. an appellate court, that is familiar with the briefs filed in the case, and there­ fore with the issues, before oral argument. _ Typi­ cally, a hot court controls the oral argument with its

questioning, as opposed to listening paSSively to set presentations of counsel.

housing court. A court dealing primarily with land­ lord-and-tenant matters, including disputes over maintenance, lease terms, and building and fire codes. [Cases: Courts

hundred court. Hist. In England, a larger court baron, held for all inhabitants of a particular hundred rather than a manor, in which the free suitors were the judges (jurors) and the steward the register. ­ A hundred court was not a court of record, and it resembled a court-baron in all respects except for its larger territorial jurisdiction. The last hundred court was abolished in 1971. Also termed hundred moot. See COURT BARON. impeachment court. See COURT FOR THE TRIAL OF IMPEACHME:siTS. inferior court. (I7c) I. Any court that is subordinate to the chief appellate tribunal within a judicial system. 2. A court of special, limited, or statutory jurisdiction, whose record must show the existence of jurisdic­ tion in any given case to give its ruling presumptive validity. - Also termed lower court. inquisitorial court. A court in which the inquisitorial system prevails. ''We should remember that in the 'inquisitorial court' the roles of prosecutor, defender, and judge are combined in one person or group of persons. It is no accident that such a court commonly holds its sessions in secret. The usual explanation for this is that the methods by which it extracts confessions cannot stand public scrutiny. But the reason runs deeper. The methods employed by an inquisitorial court, even if open to the public, could scarcely be a secret of meaningful observation by an outsider. It is only when the roles of prosecutor, defender, and judge are sepa­ rated that a process of decision can take on an order and coherence that will make it understandable to an outside audience and convince that audience that all sides of the controversy have been considered." Lon L. Fuller, Anatomy of the Law 35-36 (1968).

instance court. 1. See trial court. 2. Hist. The admiralty court in England that exercised original jurisdiction in all cases except those involving prizes. insular court. A federal court with jurisdiction over U.S. island territories, such as the Virgin Islands. [Cases: Federal Courts C::=> 1021-1024.] intermediate court. An appellate court that is below a court oflast resort.

International Court ofJustice. See INTERNATIONAL COURT OF JUSTICE.

International Criminal Court. See

I~TERNATIO~AL

CRIMINAL COURT.

International Trade Court. See UNITED STATES COURT OF INTERNATIONAL TRADE. J.P. court. See justice court. justice court. (16c) A court, presided over by a justice of the peace, that has jurisdiction to hear minor criminal cases, matters involving small amounts of money, or certain specified claims (such as forcible-entry-and­

detainer suits). - Also termed justice-of-the-peace court; J.P. court. [Cases: Justices of the Peace C::=' 31.] juvenile court. (1903) 1. A court having jurisdiction over cases involving children under a specified age, usu. 18. _ Illinois enacted the first statewide juvenile­ court act in 1899. Today every state has a specialized juvenile or family court with exclusive original delin­ quency jurisdiction. - Also termed children's court. 174.] 2. A court having special [Cases: Courts jurisdiction over orphaned, delinquent, dependent, and neglected children. _ This type ofjuvenile court is created by statute and derives its power from the specific wording of the statute, usu. haVing exclusive original jurisdiction over matters involving abuse and neglect, adoption, status offenses, and delin­ quency. Generally, juvenile courts are special courts of a paternal nature that have jurisdiction over the care, custody, and control of children (as defined by the statute). The jurisdiction of the juvenile court is exercised as between the state (for the child) and the parents of the child and is not concerned with a custody controversy that does not affect the morale, health, or welfare ofthe child. A juvenile court is not a criminal court. The primary concern of a juvenile court is the child's immediate welfare. See UNIFORM JUVENILE COURT ACT. [Cases: Infants kangaroo court. (1849) 1. A self-appointed tribunal or mock court in which the principles of law and justice are disregarded, perverted, or parodied. - Kangaroo courts may be assembled by various groups, such as prisoners in a jail (to settle disputes between inmates) and players on a baseball team (to "punish" team­ mates who commit fielding errors). 2. A court or tribunal characterized by unauthorized or irregu­ lar procedures, esp. 80 as to render a fi:tir proceeding impossible. 3. A sham legal proceeding. - The term's origin is uncertain, but it appears to be an American­ ism. It has been traced to 1853 in the American West. "Kangaroo" might refer to the illogical leaps between "facts" and conclusions, or to the hapless defendant's quick bounce from court to gallows. King's Court. See CURIA REGIS. land court. A court having jurisdiction over land­ related matters including: (1) exclusive original juris­ diction of applications for registration ofland titles and related questions, writs of entry and petitions to clear title to real estate, petitions to determine the validity and extent of municipal zoning ordinances, bylaws, and regulations, and proceedings for fore­ closure and redemption from tax titles; (2) original concurrent jurisdiction of declaratory judgment pro­ ceedings, shared with the supreme judicial, superior, and probate courts; and (3) original concurrent equity jurisdiction in land-related matters, except for cases of specific performance ofland contracts. - Land courts today exist in the United States in Massachusetts and Hawaii. [Cases: Courts landed-estates court. Hist. English law. A statutorily established tribunal to dispose of encumbered real

estate more promptly and easily than could be accom­ plished through the ordinary judicial machinery. ­ This type of court was first established in Ireland by acts of 11 & 12 Vict., ch. 48 and 12 & 13 Vict., ch. 77. The purpose of the court was to enable the owner, or any lessee of an unexpired term of 63 years or less, of encumbered land to apply to commissioners to direct a sale. The court served as a court of record and was called the Incumbered Estates Court. A later act abolished that court and created a new perma­ nent tribunal called the Landed Estates Court. 21 & 22 Vict., ch. 72. legatine court. A court held by a papal legate and having ecclesiastical jurisdiction. legislative court. (1828) A court created by a statute, as opposed to one created by a constitution. - Also termed (in federal law) Article I court. [Cases: Courts levy court. Hist. A court in the District of Columbia that exercised many of the functions typical of county commissioners or county supervisors in the states, such as constructing and repairing roads and bridges. limited court. A court haVing special jurisdiction conferred by statute, such as a probate court. - Also termed court ofspecial jurisdiction. [Cases: Courts (~:::159-197.]

liquidation court. Any court in which a liquidation proceeding takes place. local court. A court whose jurisdiction is limited to a particular territory, such as a state, municipal, or county court. lord mayor's court. Hist. A court oflaw and equity that had jurisdiction in civil cases arising within the city of London and acted as the appellate court from the Chamberlain Court. _ It was abolished by the Court Act of 1971. lower court. 1. See court below. 2. See inferior court. magistrate's court (maj-i-strayts or -strits). (1904) 1. A court with jurisdiction over minor criminal offenses. _ Such a court also has the power to bind over for trial persons accused of more serious offenses. - Also termed police court. 2. A court with limited jurisdiction over minor criminal and civil matters. - Sometimes spelled (esp. in England) mag­ istrates' court. -- Also termed (in England) court of petty sessions; court ofsummary jurisdiction. [Cases: Justices of the Peace C::>31.j maritime court. See ADMIRALTY (1). mayor's court. A municipal court in which the mayor presides as the judge, with jurisdiction over minor criminal (and sometimes civil) matters, traffic offenses, and the like. [Cases: Municipal Corpora­ tions C::>635.] military court. A court that has jurisdiction over members of the armed forces and that enforces the

Code of Military Justice. See CODE OF MILITARY JUSTICE. [Cases: Military Justice =)870.] military court of inquiry. A military court that has special and limited jurisdiction and that is convened to investigate specific matters and, traditionally, to determine whether further procedures are warranted. 10 USCA § 935. [Cases: Armed Services ~41.] moot court. See MOOT COURT. municipal court. (17c) A court having jurisdiction (usu. civil and criminal) over cases arising within the municipality in which it sits. _ A municipal court's civil jurisdiction to issue a judgment is often limited to a small amount, and its criminal jurisdiction is limited to petty offenses. - Also termed city court. [Cases: Courts 4.] 4. Parliamentary law. Evidence of a delegate's entitle­ ment to be seated and vote in a convention or other deliberative assembly.• Before the meeting begins, the evidence usu. takes the form of a certificate or proof of election or appointment, which the delegate presents to a credentials committee so that the committee can list the delegate on its roster. During the meeting, the evidence usu, takes the form of a badge or card that the credentials committee issues to each delegate on its roster. See credentials committee under COMMIT­ TEE. - credential, vb. credentials committee. See COMMITTEE. credibility, n. (l6c) The quality that makes something (as a witness or some evidence) worthy of belief. [Cases: Criminal Law Evidence C;:>588.] - credible, adj. credible evidence. See EVIDENCE.

crastino (kras-ta-noh). [Law Latin] Hist. Tomorrow; on the morrow.• The return day of writs, so-called because the court terms always began on a saint's day; writs were therefore returnable the day after. CRAT. abbr. Charitable-remainder annuity trust. See charitable remainder annuity trust under TRUST. creancer (kree-an-sJr). [Law French] Hist. A creditor. Also spelled creansour. create a blank. Parliamentary law. To amend a motion by striking out one or more terms and replacing them with blanks rather than different terms. See amendment by striking out and inserting under AMENDMENT (3).• This form allows a vote on several competing proposals at one time, rather than the usual process ofvoting sepa­ rately upon each proposal. See BLANK (2). creationism. The teaching of the biblical version of the creation of the universe .• The United States Supreme Court held unconstitutional a Louisiana law that forbade the teaching of the theory of evolution unless biblical creation was also taught. The Court found the law violated the Establishment Clause of the First Amendment because it lacked a "clear secular purpose." Edwards v. Aguillard, 482 U.S. 578, 107 S.Ct 2573 (1987).

CREATIONISM.

creative sentence. See alternative sentence under SENTENCE.

creative work. See work of authorship under WORK (2). creativity. Copyright, The degree to which a work displays imaginativeness beyond what a person ofvery ordinary talents might create .• Labor and expense are not elements of creativity; for that reason, they are not protected by copyright. Feist Pubs. Inc. v. Rural Tel. Servo Co., 499 U.S. 340, 111 S.Ct. 1282 (1991). Cf. ORIG­ INALITY, SWEAT-OF-THE-BROW DOCTRINE. [Cases: Copyrights and Intellectual Property C=> 12.] "Where creativity refers to the nature of the work itself, originality refers to the nature of the author's contribution to the work. Thus, a public domain painting may evince great creativity, but if a copyright claimant adds nothing of his own to it, by way of reproduction or otherwise, then copyright will be denied on the basis of lack of original­ ity. Conversely, a work may be entirely the product of the claimant's independent efforts, and hence original, but may nevertheless be denied protection as a work of art if it is completely lacking in any modicum of creativity." 1 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 2.08[B][2], at 2-88 (Supp. 1995).

credible witness

credible witness. See WITNESS. credit, n. (l6c) 1. Belief; trust . 4. The availability of funds either from a financial institution or under a letter of credit . bank credit. Credit that a bank makes available to a borrower. consumer credit. Credit extended to an individual to facilitate the purchase of consumer goods and services. [Cases: Consumer Credit (;= 1.] installment credit. Consumer credit scheduled to be repaid in two or more payments, usu. at regular inter­ vals.• The seller ordinarily exacts finance charges. non installment credit. Consumer credit arranged to be repaid in a single payment. • Examples include doctors' and plumbers' bills. revolving credit. A consumer-credit arrangement that allows the borrower to buy goods or secure loans on a continuing basis as long as the outstanding balance does not exceed a specified limit. - Also termed open credit; revolving charge account. Cf. revolver loan under LOAN. [Cases: Consumer Credit (;=34.] 5. LETTER OF CREDIT . 6. A deduction from an amount due; an accounting entry reflecting an addition to revenue or net worth . Cf. DEBIT. 7. TAX CREDIT . accumulated-earnings credit. Tax. A deduction allowed in arriving at a corporation's accumulated taxable income .• It offsets the base on which the tax is assessed by reducing the taxable base by the greater of $250,000 or the accumulated earnings retained for the reasonable needs of the corporation, reduced by the net capital gain. IRC (26 USCA) § 535. See accu­ mulated-earnings tax under TAX. credit, vb. (17c) 1. To believe . 2. To enter (as an amount) on the credit side of an account . creditable. 1. Worthy of being believed; credible . 2. Capable ofbeing ascribed or credited . 3. Reputable; respectable . credit balance. Accounting. The status of an account when the sum of the credit entries exceeds the sum of the debit entries. credit bureau. (1874) An organization that compiles information on people's creditworthiness and publishes it in the form of reports that are used chiefly by mer­ chants and service-providers who deal directly with customers.• The practices of credit bureaus are regu­ lated by federal (and often state) law. Most bureaus are

424 members ofthe Associated Credit Bureaus ofAmerica. Cf. CREDIT-REPORTING BUREAU. [Cases: Credit Report­ ing Agencies 1-4.] credit card. An identification card used to obtain items on credit, usu. on a revolving basis. See revolving credit under CREDIT. Cf. DEBIT CARD. [Cases: Consumer Credit C-::8.] credit-card cramming. 1. A credit-card issuer's practice of charging consumers for optional goods or services that the consumers have not agreed to payor do not understand.• For example, the credit-card crammer may offer the consumer a free service for a limited period without making it clear that if the service is not canceled when the period ends, it will be automatically renewed for a fee. [Cases: Consumer Credit C:;8.J 2. A single act ofcharging a consumer's credit card without authorization, particularly for goods or services that the consumer did not agree to or receive. [Cases: Consumer Credit credit-card crime. (1970) The offense of using a credit card to purchase something with knowledge that (1) the card is stolen or forged, (2) the card has been revoked or canceled, or (3) the card's use is unauthorized. [Cases: Consumer Credit (;= 20.] credit freeze. See FREEZE. credit insurance. See INSlJRANCE. credit life insurance. See LIFE INSURANCE. credit line. See LINE OF CREDIT. credit memorandum. A document issued by a seller to a buyer confirming that the seller has credited (Le., reduced) the buyer's account because of an error, return, or allowance. credit mobilier. A company or association that carries on a banking business by making loans on the security of personal property. creditor. (15c) 1. One to whom a debt is owed; one who gives credit for money or goods. Also termed debtee. 2. A person or entity with a definite claim against another, esp. a claim that is capable of adjustment and liquidation. 3. Bankruptcy. A person or entity having a claim against the debtor predating the order for relief concerning the debtor. [Cases: Bankruptcy (;= 2822.] 4. Roman law. One to whom any obligation is owed, whether contractual or otherwise. Cf. DEBTOR. attaching creditor. A creditor who has caused an attachment to be issued and levied on the debtor's property. [Cases: Attachment C=> 16.] bond creditor. A creditor whose debt is secured by a bond. catholic creditor. Scots law. A person who has a security interest in more than one piece of the debtor's property. certificate creditor. A creditor of a municipal corpora­ tion who receives a certificate of indebtedness rather than payment because the municipality cannot pay the debt. Cf. warrant creditor.

425

conditional creditor. Civil law, A creditor who has either a future right of action or a right of action in expectancy. creditor at large. A creditor who has not established the debt by reducing it to judgment, or who has not oth­ erwise secured a lien on any of the debtor's property. See unsecured creditor. domestic creditor. A creditor who resides in the same state or country as the debtor or the debtor's property. double creditor. A creditor who has a lien on two funds. Cf. single creditor. execution creditor. A judgment creditor who has caused an execution to issue on the judgment. [Cases: Execution (;:::::0'17,] foreign creditor. A creditor who resides in a different state or country from that of the debtor or the debtor's property. gap creditor. Bankruptcy. A creditor who extends credit to, lends money to, or has a claim arise against the debtor in the period between the filing of an involun­ tary bankruptcy petition and the entry ofthe order for relief. - Under the Bankruptcy Code, a gap creditor's claim receives second priority, immediately below administrative claims. 11 USCA §§ S02(f), S07(a)(2). [Cases: BankruptcyC:;:>2833.] general creditor. See unsecured creditor. hypothetical creditor. Bankruptcy. An actual or code­ created judicial-lien creditor or bona fide purchaser who establishes a bankruptcy trustee's status under the Bankruptcy Code's priority scheme, claiming property through the debtor at the time of the bank­ ruptcy filing. II USCA § S44. - Also termed hypo­ theticallien creditor. [Cases: Bankruptcy C:;>2704, 270S.] joint creditor. A creditor who is entitled, along with another creditor, to demand payment from a debtor. judgment creditor. See JUDGMENT CREDITOR. junior creditor. A creditor whose claim accrued after that of another creditor; a creditor who holds a debt that is subordinate to another's. known creditor. A creditor whose identity or claim is either known or reasonably ascertainable by the debtor. - Known creditors are entitled to notice of the debtor's bankruptcy or corporate dissolution, as well as notice of any deadline for filing proofs of claim. lien creditor. A creditor whose claim is secured by a lien on the debtor's property. UCC § 9-102(a)(52). [Cases: Secured Transactions (;:::::0 140.] preferred creditor. A creditor with a superior right to payment, such as a holder of a perfected security interest as compared to a holder of an unsecured claim. [Cases: Secured Transactions 138-140, 168.] principal creditor. A creditor whose claim or demand greatly exceeds the claims of other creditors.

creditor dominii

prior creditor. A creditor who is given priority in payment from the debtor's assets. secondary creditor. A creditor whose claim is subordi­ nate to a preferred creditor's. secured creditor. A creditor who has the right, on the debtor's default, to proceed against collateral and apply it to the payment of the debt. UCC § 9-102-(a) (72). - Also termed secured party. '''Secured party' means (A) a person in whose favor a security interest is created or provided for under a security agreement, whether or not any obligation to be secured is outstanding; (B) a person that holds an agricultural lien: (C) a consignor; (0) a person to which accounts, chattel paper, payment intangibles, or promissory notes have been sold; or (E) if a security interest or agricultural lien is created or provided for in favor of a trustee, agent, col· lateral agent, or other representative, that representative." UCC § 9·1 02(a)(50).

single creditor. In the marshaling of assets, a creditor with a lien on one fund. See RULE OF MARSHALING ASSETS. Cf. double creditor. specialty creditor. A creditor to whom an heir is liable for a decedent's debts to the extent of the land inher­ ited.• Historically, unless the creditor obtained a judgment against the debtor before the debtor's death, the creditor's right of action on the debt was limited to the decedent's lawful heir. If the debtor devised the land to a stranger, the creditor's claim was defeated. See HEIR (1). [Cases: Descent and Distribution C:;:> 126; Executors and Administrators ".r~ ~·VJ. 'There were three exceptions to this rule that a fee simple estate was not liable to the creditors of the deceased. Debts due to the Crown and debts due to judgment creditors were enforceable against the land notwithstanding the death of the owner, and thirdly, if the fee simple tenant had in his lifetime executed a deed whereby he covenanted for himself and his heirs to pay a sum of money, the creditor (called a specialty creditor) could make the heir liable for the debt to the extent of the land which had descended to him. But this privilege of the specialty creditor was not at first enforceable against an equitable fee Simple, and it was strictly limited to a right of action against the heir of the deceased, so that the creditor was defrauded of his money If the deceased devised his land to a stranger." C.C Cheshire, Modern Law of Real Property 738 (3d ed. 1933).

subsequent creditor. A creditor whose claim comes into existence after a given fact or transaction, such as the recording of a deed or the execution of a voluntary conveyance. unsecured creditor. A creditor who, upon giving credit, takes no rights against specific property ofthe debtor, Also termed general creditor. See creditor at large. warrant creditor. A creditor ofa municipal corporation who is given a municipal warrant for the amount of the claim because the municipality lacks the funds to pay the debt. Cf. certificate creditor. [Cases: Municipal Corporations C:;:>896.] creditor beneficiary. See BENEFICIARY. creditor dominii (kred-i-tor da-min-ee-l). [Law Latin] Hist. The creditor who is entitled to ownership of an object; a secured creditor.

"Creditor dominii .... In commodate the lender is creditor of the subject. and on the bankruptcy of the borrower may vindicate his right of property and recover the subject itself ...." John Trayner. Trayner's Latin Maxims 114 (4th ed. 1894).

creditor's bill. (1826) An equitable suit in which a judgment creditor seeks to reach property that cannot be reached by the process available to enforce a judgment. - Also termed creditor's suit. [Cases: Debtor and Creditor creditor's claim. See CLAIM (5). creditors' committee. (1874) Bankruptcy. A committee comprisjng representatives of the creditors in a Chapter 11 proceeding, formed to negotiate the debtor's plan of reorganization. - Generally, a committee has no fewer than 3 and no more than 11 members and serves as an advisory body. 11 USCA § 1102. [Cases: Bankruptcy (;::::>3024.] creditors' composition. See COMPOSITION (1). creditors' meeting. See MEETING. creditors' scheme of arrangement. See

SCHEME OF

ARRANGEMENT.

creditor's suit. See CREDITOR'S BILL. credit plan. A financing arrangement under which a borrower and a lender agree to terms for a loan's repay­ ment with interest, usu. in installments. open-end credit plan. A plan under which a creditor reasonably expects repeated transactions, prescribes terms for those transactions, and includes a finance charge that may be periodically computed on the out­ standing balance. 15 USCA § 1602(i). credit rating. An evaluation of a potential borrower's ability to repay debt, prepared by a credit bureau at the request of a lender. [Cases: Credit Reporting Agencies (;::::>1-4.] credit report. 1. A credit bureau's report on a person's financial status, usu. including the approximate amounts and locations of a person's bank accounts, charge accounts, loans, and other debts, bill-paying habits, defaults, bankruptcies, foreclosures, marital status, occupation, income, and lawsuits. See CREDIT BUREAU. 2. The report of a credit-reporting bureau, usu. including highly personal information gathered through interviews with a person's friends, neigh­ bors, and coworkers. See CREDIT-REPORTING BUREAU. [Cases; Credit Reporting Agencies credit-reporting bureau. (1904) An organization that, on request, prepares investigative reports not just on people's creditworthiness but also on personal infor­ mation gathered from various sources, including inter­ views with neighbors, friends, and coworkers. - These reports are used chiefly by employers (for prospective employees), insurance companies (for applicants), and landlords (for prospective tenants). - Also termed investigating bureau. Cf. CREDIT BUREAU. [Cases: Credit Reporting Agencies (;::::> 1-4.J

creditrix (kred-;Hriks), n. [fro Latin credere "to lend, entrust"] Civil law. Archaic. A female creditor. credit sale. See SALE. credit service charge. See SERVICE CHARGE

(2).

credit-shelter trust. See bypass trust under TRUST. credit slip. A document that allows a store customer to either purchase another item or receive cash or credit for merchandise the customer has returned to the store. credit union. A cooperative association that offers low­ interest loans and other consumer banking services to persons sharing a common bond - often fellow employees and their family members. - Most credit unions are regulated by the National Credit Union Administration. State-chartered credit unions are also subject to regulation by the chartering state, and they may be regulated by state banking boards. [Cases: Building and Loan Associations C::;) 1-6,24-40.) "Credit unions were the last major thrift institutions developed in the United States .... What distinguished credit unions from mutual savings banks and savings and loan associations was their emphasis on a common bond of workers, church members, or people in a local area, wanting to borrow relatively small amounts at reasonable interest rates from each other. and help each other save to meet these short-term needs. Their goal was to provide a low interest rate alternative _.. to loan sharks and pawn­ brokers." William A. Lovett. Banking and Financial institu· tions Law in a Nutshell 284 (1997).

creditworthy, adj. (1924) (Of a borrower) financially sound enough that a lender will extend credit in the belief default is unlikely; fiscally healthy. - creditwor­ thiness, n. creeping acquisition. See ACQUISITJON. creeping tender offer. See creeping acquisition under ACQUISITION.

C reorganization. See REORGANIZATION (2). crescendo rental. See RENTAL. cretion (kree-sh;m), n. [fro Latin cernere "to decide") Roman law. 1. A method or form ofaccepting an inher­ itance by an heir who is appointed in a testament. Cretion usu. had to be declared within 100 days from the date an heir received notice of the appointment. "In the old law it was the practice to fix a time limit, usually of one hundred days, within which the heir was to make a formal acceptance, with the addition that if he failed to do so, he was to be disinherited and a substitute was to take the inheritance in his place. This formal acceptance was known as cretio from the Latin verb cernere to decide. The practice had fallen into disuse before Justinian, who formally abolished it." R.W. Lee, The Elements of Roman Law 199 (4th ed. 1956).

2. The period within which an heir might decide whether to accept an inheritance. - Also termed (in Latin) cretio (kree-shee-oh). cretionary (kree-sh;m­ er-ee), adj. crew member. See SEAMAN. CRF. abbr. CRIMINAL-REFERRAL

FORM.

crib, n. [Origin unknown] Hist. An enclosure at the side of a court where the apprentices stood to learn the law. - For a full historv ofthis term and its variants, see J.H. Baker, "The Pecu~es," in The Legal Profession and the Common Law 171, 173 (1986). Also spelled cribbe; crubbe. Also termed pecune.

cri de pais. See CRY DE PAIS. crier (krI-ar). (15c) 1. An officer ofthe court who makes public pronouncements as required by the court. Cf. BAILIFF (1). - Also termed court crier. [Cases: Courts C=>58.] 2. An auctioneer. Also spelled cryer. criez la peez (krI-eez 1.'1 pees). [Law French] Hist. Rehearsethe concord (or peace). - This phrase was used to confirm the conveyance of land by fine. The serjeant or countor in attendance read the phrase aloud in court. See FINE (1). crim. con. abbr. CRIMINAL CONVERSATION. crime. (14c) An act that the law makes punishable; the breach of a legal duty treated as the subject-matter of a criminal proceeding. - Also termed criminal wrong. See OFFENSE (1). "Understanding that the conception of Crime, as distin­ guished from that of Wrong or Tort and from that of Sin, involves the idea of injury to the State of collective com­ munity, we first find that the commonwealth, in literal conformity with the conception, itself interposed directly, and by isolated acts, to avenge itself on the author of the evil which it had suffered." Henry S. Maine, Ancient Law 320 (17th ed. 1901). "It is a curious fact that all the minor acts enumerated in the penal code of a state like, say, New York are in law called crimes, which term includes both murder and overparking. It is a strong term to use for the latter, and of course the law has for centuries recognized that there are more serious and less serious crimes. At the common law, however, only two classes were recognized, serious crimes or felonies, and minor crimes or misdemeanors." Max Radin, The Law and You 91 (1948).

administrative crime. (1943) An offense consisting ofa violation of an administrative rule or regulation that carries with it a criminal sanction.

capital crime. See capital offense under OFFENSE (1). commercial crime. (1900) A crime that affects commerce; esp., a crime directed toward the property or revenues of a commercial establishment. - Examples include robbery ofa business, embezzle­ ment, counterfeiting, forgery, prostitution, illegal gambling, and extortion. See 26 CFR § 403.38.

common-law crime. (1827) A crime that is punish­ able under the common law, rather than by force of statute. Cf. statutory crime. complainantless crime. See victimless crime.

computer crime. (1971) A crime involving the use of a computer, such as sabotaging or stealing electroni­ cally stored data. - Also termed cybercrime. [Cases: Telecommunications C=> 1342, 1348.]

consensual crime. See victimless crime. constructive crime. A crime that is built up or created when a court enlarges a statute by altering or straining

the statute's language, esp. to drawing unreasonable implications and inferences from it. - Also termed

implied crime; presumed crime. continuous crime. (1907) 1. A crime that continues after an initial illegal act has been consummated; a crime that involves ongoing elements. - An example is illegal U.S. drug importation. The criminal act is completed not when the drugs enter the country, but when the drugs reach their final destination. 2. A crime (such as driving a stolen vehicle) that continues over an extended period. Cf. instantaneous crime. corporate crime. (l934) A crime committed by a cor­ poration's representatives acting on its behalf. ­ Examples include price-fixing and consumer fraud. Although a corporation as an entity cannot commit a crime other than through its representatives, it can be named as a criminal defendant - Also termed organizational crime. Cf. occupational crime. [Cases: Corporations C=> 526.] credit-card crime. See CREDIT-CARD CRIME.

crime against nature. See SODOMY. crime against the environment. See ENVIRONMENTAL CRIME.

crime malum in se. See MALUM IN SE. crime malum prohibitum. See MALUM PROHIBITUM. crime ofomission. (I8c) An offense that carries as its material component the failure to act.

crime ofpassion. (I8c) A crime committed in the heat of an emotionally charged moment, with no oppor­ tunity to reflect on what is happening. See HEAT OF PASSION.

crime ofviolence. See violent crime.

crime without victims. See victimless crime.

cybercrime. See computer crime.

economic crime. A nonphysical crime committed to

obtain a financial gain or a professional advantage. 'There are two major styles of economic crime. The first consists of crimes committed by businessmen as an adjunct to their regular business activities. Businessmen's responsibilities give them the opportunity, for example, to commit embezzlement, to violate regulations directed at their areas of business activity, or to evade the payment of taxes. This style of economic crime is often called white­ collar crime. The second style of economic crime is the provision of illegal goods and services or the provision of goods and services in an illegal manner. Illegal provi­ sion of goods and services requires coordinated economic activity similar to that of normal business, but all of those engaged in it are involved in crime. The madam operat­ ing a brothel has many concerns identical to the manager of a resort hotel, and the distributor of marijuana must worry about the efficacy of his distribution system just as does a distributor of any other product. This type of economic crime is often called organized crime because the necessity of economic coordination outside the law leads to the formation of criminal groups with elaborate organizational customs and practices." Edmund W. Kitch, "Economic Crime," in 2 Encyclopedia of Crime and justice 670,671 (Sanford H. Kadish ed., 1983).

environmental crime. See ENVIRONMENTAL CRIME.

crime

expressive crime. A crime committed for the sake of the crime itself, esp. out of frustration, rage, or other emotion rather than for financial gain. Cf. instrumen­ tal crime. federal crime. See FEDERAL CRIME. general-intent crime. A crime that involves performing a particular act without intending a further act or a further result. [Cases: Criminal Law C'-:;)20.] hate crime. (1984) A crime motivated by the victim's race, color, ethnicity, religion, or national origin. ­ Certain groups have lobbied to expand the defini­ tion by statute to include a crime motivated by the victim's disability, gender, or sexual orientation. Cf. hate speech under SPEECH. [Cases: Civil Rights 1808; Sentencing and Punishment (.=70, 753.J high crime. (17c) A crime that is very serious, though not necessarily a felony. _ Under the U.S. Constitu­ tion, a government officer's commission of a "high crime" is, along with treason and bribery, grounds for removal from office. U.S. Const. art. II, § 4. See IMPEACHABLE OFFENSE.

honor crime. A crime motivated by a desire to punish a person who the perpetrator believes has injured a person's or group's sense of honor. - The term is most often applied to crimes committed against Muslim women by members oftheir own families for behavior that leads to perceived social harm, esp.loss of family honor. The term also extends to non-Muslims and covers many acts ofviolence, including assault, rape, infanticide, and murder. When the crime involves a death, it is also termed honor killing. implied crime. See constructive crime.

inchoate crime. See inchoate offense under OFFENSE

(1).

index crime. See index offense under OFFENSE (1). infamous crime (in-f"-m,,s). (16c) 1. At common law, a crime for which part of the punishment was infamy, so that one who committed it would be declared ineli­ gible to serve on a jury, hold public office, or testify. - Examples are perjury, treason, and fraud. [Cases: Jury (;=;;45; Officers and Public Employees (;:= 31.] 2. A crime punishable by imprisonment in a peni­ tentiary. - The Fifth Amendment requires a grand­ jury indictment for the prosecution of infamous (or capital) crimes, which include all federal felony offenses. See indictable offense under OFFENSE (1). cr. noninfamous crime. "At common law an infamous crime was one ... inconsis· tent with the common principles of honesty and humanity. Infamous crimes were treason, felony, all offenses found in fraud and which came within the general notion of the crimen falSi of the Civil law, piracy, swindling, cheating, barratry, and the bribing of a witness to absent himself from a trial, in order to get rid of his evidence." Justin Miller, Handbook ofCriminai Law § 8, at 25 (1934).

instantaneous crime. (1887) A crime that is fully completed by a single act, as arson or murder, rather than a series of acts. - The statute of limitations

428

for an instantaneous crime begins to run with its completion. Cf. continuous crime. instrumental crime. A crime committed to further another end or result; esp., a crime committed to obtain money to purchase a good or service. Cf. expressive crime.

international crime. See INTERNATIONAL CRIME. major crime. See FELONY (1). noninfamous crime. A crime that does not qualify as an infamous crime. Cf. infamous crime. occupational crime. A crime that a person commits for personal gain while on the job. Cf. corporate crime. organizational crime. See corporate crime. organized crime. See ORGANIZED CRIME. personal-condition crime. See status crime. personal crime. A crime (such as rape, robbery, or pick­ pocketing) that is committed against an individual's person. political crime. See POLITICAL OFFENSE. predatory crime. A crime that involves preying upon and victimizing individuals. - Examples include robbery, rape, and carjacking. preliminary crime. See inchoate offense under OFFENSE (1).

presumed crime. See constructive crime. quasi-crime. (18c) Hist. 1. An offense not subject to criminal prosecution (such as contempt or violation of a municipal ordinance) but for which penalties or forfeitures can be imposed. _ The term includes offenses that give rise to qui tam actions and forfei­ tures for the violation of a public duty. 2. An offense for which someone other than the actual perpetrator is held liable, the perpetrator being presumed to act on the command of the responsible party. See quasi­ delict (1) under DELICT. serious crime. 1. See serious offense under OFFENSE (1). 2. See FELONY (1). signature crime. (1974) A distinctive crime so similar in pattern, scheme, or modus operandi to previous crimes that it identifies a particular defendant as the perpetrator. [Cases: Criminal Law C=' 369.15.] spontaneous crime. A criminal act that occurs suddenly and without premeditation in response to an unfore­ seen stimulus. - For example, a husband who dis­ covers his wife in bed with another man and shoots him could be said to have committed an effectively spontaneous crime. status crime. (1961) A crime ofwhich a person is guilty by being in a certain condition or of a specific char­ acter. - An example of a status crime is vagrancy. ­ Also termed status offense; personal-condition crime. [Cases: Criminal Law~26.J statutory crime. (1940) A crime punishable by statute. Cf. common-law crime. [Cases: Criminal Law (:::'::, 21.1

429

crimen

street crime. (1966) A crime generally directed against a person in public, such as mugging, theft, or robbery. Also termed visible crime. strict-liability crime. A crime that does not require a mens rea element, such as traffic offenses and illegal sales of intoxicating liquor. [Cases: Criminal Law Cc'=' 21.] substantive crime. See substantive offense under OFFENSE (1). vice crime. A crime of immoral conduct, such as gambling or prostitution. victimless crime. (1964) A crime that is considered to have no' direct victim, usu. because only consenting adults are involved. - Examples are possession of illicit drugs and deviant sexual intercourse between consenting adults. Also termed consensual crime; crime without victims; complainantless crime. "When a man's house has been robbed or his brother murdered, he is likely to take this complaint vigorously to the police and demand action. His presence on the scene dramatizes the need for law enforcement and gives sense and purpose to the work of the police and district attorney. In contrast, the absence of a prosecuting witness surrounds 'crimes without victims' with an entirely different atmo­ sphere. Here it is the police who must assume the initiative. If they attempt to work without the aid of informers, they must resort to spying, and this spying is rendered all the more distasteful because what is spied upon 15 sordid and pitiable." Lon L. Fuller, Anatomy of the Law44 (1968).

violent crime. (18c) A crime that has as an element the use, attempted use, threatened use, or substan­ tial risk of use of phYSical force against the person or property of another. 18 USCA § 16; USSG § 2El.3. Also termed crime of violence. visible crime. See street crime.

war crime. See WAR CRIME.

white-collar crime. See WHITE-COLLAR CRIME.

crime against humanity. Int'llaw. A brutal crime that is not an isolated incident but that involves large and systematic actions, often cloaked with official author­ ity, and that shocks the conscience of humankind. ­ Among the specific crimes that fall within this category are mass murder, extermination, enslavement, depor­ tation, and other inhumane acts perpetrated against a population, whether in wartime or not. See Statute of the International Criminal Court, art. 3 (37 ILM 999). crime against international law. See CRIME AGAINST THE LAW OF NATIONS. crime against peace. Int'llaw. An international crime in which the offenders plan, prepare, initiate, or wage a war ofaggression or a war in violation of international peace treaties, agreements, or assurances. crime against the law of nations. Int'llaw. L A crime punishable under internationally prescribed criminal law or defined by an international convention and required to be made punishable under the criminal law of the member states. 2. A crime punishable under international law; an act that is internationally agreed

to be of a criminal nature, such as genocide, piracy, or engaging in the slave trade. - Also termed crime against international law. crime against the person. See CRIMES AGAINST PER­ SONS. crime-fraud exception. (1973) The doctrine that neither the attorney-client privilege nor the attorney-work­ product privilege protects attorney-client communi­ cations that are in furtherance of a current or planned crime or fraud. Clark v. United States, 289 U.S. 1, 53 S.Ct. 465 (1933); In re Grand Jury Subpoena Duces Tecum, 731 F.2d 1032 (2d Cir. 1984). [Cases: Criminal Law (;:J627.5(6); Federal Civil Procedure (;:::,1604(1); Pretrial Procedure Privileged Communications and Confidentiality ~ 154.] crime insurance. See INSURANCE. crime malum in se. See MALUM IN SE. crime malum prohibitum. See MALUM PROHIBITUM. crimen (krI-man), n. [Latin]l. An accusation or charge of a crime. 2. A crime. PI. crimina (krim-a-na). crimen expilatae hereditatis (krI-mm eks-p.:>-lay-tee ha-red-i-tay-tis). Roman law. A false claimant's willful spoliation of an inheritance. crimen falsi (krI-man fal-51 or fawl-sI). [Latin "the crime of falSifying") 1. A crime in the nature of perjury. - Also termed falsum. 2. Any other ofiense that involves some element of dishonesty or false statement. See Fed. R. Evid. 609(a)(2). [Cases: Wit­ nesses (;:J 337(12).] "The starting point [for perjury] seems to have been the so-called crimen falSi, -- crime of falsifying. In the begin­ ning, perhaps, one convicted of perjury was deemed too untrustworthy to be permitted to testify in any other case, and the idea grew until the term 'crimen falsI' included any crime involving an element of deceit. fraud or corruption." Rollin M. Perkins & Ronald N. Boyce, Criminal Law 26 (3d ed.1982).

crimen feloniae imposuit (kn-m.:>n fa-Ioh-nee-ee im-poz-ya-wit). To accuse or charge with a felony. crimenfurti (kn-man far-tr). [Latin "the crime of stealing") See THEFT. crimen incendii (krI-man in-sen-dee-r). [Latin "the crime of burning"] See ARSON. crimen innominatum (krI-man i-nom-a-nay-tam). [Latin "the nameless crime"] See SODOMY. crimen majestatis (kri-man maj-.:>-stay-tis). [Latin "crime against majesty"] Hist. High treason; any crime against the king's person or dignity; LESE MAJESTY. - Under Roman law, crimen majestatis denoted any enterprise by a Roman citizen or other person against the republic or the emperor. Also termed crimen laesae majestatis. See LESE MAJESTY. 0: PERDUELLIO. crimen plagii (krI-man play-jee-r). [Latin] Roman law. See PLAGIUM. crimen raptus (krI-man rap-tas). [Latin "the crime of rape") See RAPE.

crimen repetundarum (kn-mitn rep-it-t;,n-dair-;,m). [Latin "accusation of (money) to be repaid"] Roman law. 1. A charge ofextortion brought against a Roman provincial governor. 2. Any act of misgovernment or oppression on the part of a magistrate or official. crimen roberiae (kn-mitn rit-beer-ee-ee). [Latin "the crime of robbery"] ROBBERY. crime of omission. See CRIME. crime of passion. See CRIME. crime ofviolence. See violent crime under CRIME. crimes against persons. (1827) A category of criminal offenses in which the perpetrator uses or threatens to use force .• Examples include murder, rape, aggravated assault, and robbery. - Also termed crimes against the person. Cf. offense against the person under OFFENSE

only during periods of intense stress, as in the heat of passion. habitual criminal. See RECIDIVIST. state criminal. 1. A person who has committed a crime against the state (such as treason); a political criminal. 2. A person who has committed a crime under state law. criminal action. See ACTION (4). criminal anarchy. See ANARCHY. criminal anthropology. See CRIMINOLOGY. criminal assault. See ASSAULT. criminal attempt. See ATTEMPT. criminal bankruptcy. See bankruptcy fraud under

(1). crimes against property. (1827) A category of criminal offenses in which the perpetrator seeks to derive an unlawful benefit from or do damage to - another's property without the use or threat offorce .• Examples include burglary, theft, and arson (even though arson may result in injury or death). - Also termed property crimes. Cf. offense against property under OFFENSE (1). crimes against the person. See CRIMES AGAINST

criminal battery. See BATTERY (1). criminal behavior. Conduct that causes social harm and is defined and punished by law. criminal capacity. See CAPACITY (3). criminal charge. See CHARGE (1). criminal code. See PENAL CODE. criminal coercion. See COERCION. criminal conspiracy. See CONSPIRACY. criminal contempt. See CONTEMPT. criminal conversation. Archaic. A tort action for adultery, brought by a husband against a third party who engaged in sexual intercourse with his wife .• Criminal conversation has been abolished in most jurisdictions. - Abbr. crim. con. See HEARTBALM STATUTE. [Cases: Husband and Wife 3.5; Criminal LawC=74.J criminal-referral form. A form once required by federal regulatory authorities (from 1988 to 1996) for reporting every instance when a bank employee or affiliate com­ mitted or aided in committing a crime such as credit­ card fraud, employee theft, or check-kiting.• This form, like the suspicious-transaction report, has since been superseded by the suspicious-activity report. Abbr. CRF. See SUSPICIOUS-ACTIVITY REPORT. criminal registration. See REGISTRATION (1). criminal responsibility. 1. See RESPONSIBILITY (2). 2. See RESPONSIBILITY (3). criminal sanction. See SANCTION. criminal science. (1891) The study of crime with a view to discovering the causes ofcriminality, devising the most effective methods of reducing crime, and perfecting the means for dealing with those who have committed crimes.• The three main branches of criminal science are criminology, criminal policy, and criminal law. criminal sexual conduct in the first degree. See FIRST­ DEGREE SEXUAL CONDUCT.

criminal solicitation. See SOLICITATION (2). criminal statute. See STATUTE. criminal syndicalism. See SYNDICALISM. criminal term. See TERM (5). criminal trespass. See TRESPASS. criminal wrong. See CRIME. criminate, vb. See INCRIMINATE. crimination (krim-27.] physical cruelty. (1874) As a ground for divorce, actual personal violence committed by one spouse against the other. [Cases: Divorce (;:::::>27(3, 6).] cruelty to a child. See child abuse under ABUSE. cruelty to children. See child abuse under ABUSE. Crummey power. The right of a beneficiary of a Crummey trust to withdraw gifts made to the trust up to a maximum amount (often the lesser of the annual exclusion or the value of the gift made to the trust) for a certain period after the gift is made.• The precise characteristics of a Crummey power are established by the settlor of a Crummey trust. Typically, the power is exercisable for 30 days after the gift is made and permits withdrawals up to $5,000 or 5% ofthe value of the trust. A beneficiary may allow the power to lapse without making any demand for distribution. See Crummey trust under TRUST; annual exclusion under EXCLUSION. [Cases: Trusts (:::;)270.J Crummey trust. See TRUST. cry de pais (kn da pay). [Law French] Hist. The cry of the country.• The hue and cry after an offender, as raised by the country (I.e., the people). Also spelled cri de pais. See HUE AND CRY (1). cryer. See CRIER.

435

culpa levis in concreto

CSAAS. abbr. CHILD-SEXUAL-ABUSE-ACCOMMODATION SYNDROME. CSE agency. abbr. CHILD-SUPPORT-ENFORCEMENT AGENCY. CSREES. abbr. COOPERATIVE STATE RESEARCH, EDUCA­ TION, AND EXTENSION SERVICE. CSV. See cash surrender value under VALUE (2). c.t.a. abbr. See administration cum testamento annexo under ADMINISTRATION. Ct. Cl. abbr. Court of Claims. See UNITED STATES COURT OF FEDERAL CLAIMS. cucking stool. See CASTIGATORY.

cui ante divortium (kr [or kWI or kwee] an-tee d27.] curtiles terrae (kar-tI-leez ter-ee). [Law Latin]See COURT LANDS.

curtillium (br-til-ee-969.] Also termed custody interference. custodial interrogation. See INTERROGATION. custodial parent. See PARENT. custodial responsibility. Family law. Physical child custody and supervision, usu. including overnight responsibility for the child .• This term encompasses visitation and sole, joint, and shared custody. Both parents share responsibility for the child regardless of the amount of time they spend with the child. See CUSTODY.

custody

custodial trust. See TRUST. custodian, n. 1. A person or institution that has charge or custody (of a child, property, papers, or other valu­ ables); GUARDIAN. • In reference to a child, a custodian has either legal or physical custody. See CAREGIVER. 2. Bankruptcy. A prepetition agent who has taken charge ofany asset belonging to the debtor. 11 USCA § 101(11). [Cases: Bankruptcy (;:::=>2021.1.] custodianship, n. custodian bank. See BANK. custodia terrae et haeredis. See DE CUSTODIA TERRAE ET HAEREDIS.

custody, n. (15c) 1. The care and control of a thing or person for inspection, preservation, or security. constructive custody. (1822) Custody of a person (such as a parolee or probationer) whose freedom is con­ trolled by legal authority but who is not under direct phYSical controL penal custody. Custody intended to punish a criminal offender. [Cases: Escape physical custody. See PHYSICAL CUSTODY (1). preventive custody. (1976) Custody intended to prevent further dangerous or criminal behavior. protective custody. (1929) 1. The government's con­ finement of a person for that person's own security or well-being, such as a witness whose safety is in jeopardy or an incompetent person who may harm him- or herself or others. [Cases: Witnesses (;:::=>20.] 2. Family law. An arrangement intended to protect a child from abuse, neglect, or danger whereby the child is placed in the safety of a foster family after being removed from a home or from the custody of the person previously responsible for the child>scare. [Cases: Infants (;:::=>226.] 3. An arrangement made by law-enforcement authorities to safeguard a person in a place other than the person's home because of criminal threats to harm the person. 2. Family law. The care, control, and maintenance of a child awarded by a court to a responsible adult. - Custody involves legal custody (decision-making authority) and physical custody (caregiving author­ ity), and an award of custody usu. grants both rights. In a divorce or separation proceeding between the parents, the court usu. awards custody to one of them, unless both are found to be unfit, in which case the court may award custody to a third party, typically a relative. In a case involving parental dereliction, such as abuse or neglect, the court may award custody to the state for placing the child in foster care ifno responsible relative or family friend is willing and able to care for the child. - Also termed child custody; legal custody; managing conservatorship; parental functions. See managing conservator (2) under CONSERVATOR; PAR­ ENTING PLA~. [Cases: Child Custody (;:=:> 1.] divided custody. (1905) An arrangement by which each parent has exclusive physical custody and full control of and responsibility for the child part of the time, with visitation rights in the other parent.

custody decree

- For example, a mother might have custody during the school year, and the father might have custody during the summer vacation. [Cases: Child Custody (:::;' 21O.J

joint custody. (1870) An arrangement by which both parents share the responsibility for and authority over the child at all times, although one parent may exercise primary physical custody. - In most juris­ dictions, there is a rebuttable presumption that joint custody is in the child's best interests. JOint-custody arrangements are favored unless there is so much ani­ mosity between the parents that the child or children will be.adversely affected by a joint-custody arrange­ ment. An award of joint custody does not necessar­ ily mean an equal sharing of time; it does, however, mean that the parents will consult and share equally in the child's upbringing and in decision-making about upbringing. In a joint-custody arrangement, the rights, privileges, and responsibilities are shared, though not necessarily the physical custody. In a joint-custody arrangement, physical custody is usu. given to one parent. In fact, awards of joint physical custody, in the absence of extraordinary circum­ stances, are usu. found not to be in the best inter­ ests of the child. - Also termed shared custody; joint managing conservatorship. [Cases: Child Custody (:::;' 120-155.] "The statutes, and the cases as well, differ over the defini­ tion of joint custody. It is most often defined as meaning only that both parents will share in the decisions concern­ ing the child's care, education, religion, medical treat­ ment and general welfare." Homer H. Clark Jr.. The Law of Domestic Relations in the United States § 19.5. at 815 (2d ed. 1988).

legal custody. 1. CUSTODY (2). 2. CUSTODY (3). 3. The authority to make Significant decisions on a child's behalf, including decisions about education, religiOUS training, and healthcare. [Cases: Child Custody (;= 100-107.J

physical custody. 1. PHYSICAL CUSTODY (2). 2. PHYSICAL CUSTODY (3). residential custody. See PHYSICAl. CUSTODY (2). shared custody. See joint custody. sole custody. (1870) An arrangement by which one parent has full control and sole decision-making responsibility - to the exclusion ofthe other parent on matters such as health, education, religion, and living arrangements. [Cases: Child Custody 1, 100-107,100-107,27.]

split custody. An arrangement in which one parent has custody of one or more children, while the other parent has ~ustody of the remaining children. _ Split custody is fairly uncommon, since most jurisdictions favor keeping siblings together. [Cases: Child Custody 0;>27.] 3. The detention of a person by virtue oflawful process or authority. - Also termed legal custody. [Cases: Arrest (:::;'68(3).] - custodial, adj. custody decree. See DECREE.

442

custody determination. Family law. A court order deter­ mining custody and visitation rights. _ The order typi­ cally does not include any instructions on child support or other monetary obligations. [Cases: Child Custody (;=511,530.] custody evaluation. See HOME-STUDY REPORT. custody hearing. See HEARING. custody interference. See CUSTODIAl. INTERFERENCE. custody of the law. (17c) The condition of property or a person being under the control oflegal authority (as a court or law officer). See IN CUSTODIA tEGIS. custody proceeding. Family law. An action to determine who is entitled to legal or physical custody of a child. _ Legal custody gives one the right to make Significant decisions regarding the child, and physical custody gives one the right to physical care and control of the child. See CUSTODY; custody hearing under HEARING. [Cases: Child Custody C--::::401.] custom, n. (13c) 1. A practice that by its common adoption and long, unvarying habit has come to have the force oflaw. See USAGE. [Cases: Customs and Usages G-~ 1.] - customary, adj. conventional custom. A custom that operates only indirectly through the medium of agreements, so that it is accepted and adopted in individual instances as conventional law between the parties to those agree­ ments. - Also termed usage. See USAGE. general custom. 1. A custom that prevails throughout a country and constitutes one of the sources of the law ofthe land. [Cases: Customs and Usages 2. A custom that businesses recognize and follow. See trade usage under USAGE. legal custom. A custom that operates as a binding rule oflaw, independently of any agreement on the part of those subject to it. - Often shortened to custom. local custom. A custom that prevails in some defined locality only, such as a city or county, and constitutes Also termed a source of law for that place only. particular custom; special custom. [Cases: Customs and Usages (:::;' 1-22.] 2. (pl.) Duties imposed on imports or exports. 3. (pl.) The agency or procedure for collecting such duties. customal, n. See CUSTOMARY. custom and usage. General rules and practices that have become the norm through unvarying habit and common use. Cf. CUSTOM (1); USAGE. [Cases: Customs and Usages (:::;' 1-22.] customary, n. (16c) A record of all the established legal and quasi-legal practices within a community. Also termed custumal; customal. customary court baron. See COURT BARON.

customary dispatch. See DISPATCH.

customary estate. See COPYHOLD.

customary freehold. See COPYHOLD.

customary international law. See INTERNATIONAL LAW.

443

cyberlaw

customary interpretation. See INTERPRETATION. customary law. (16c) Law consisting of customs that are accepted as legal requirements or obligatory rules of conduct; practices and beliefs that are so vital and intrinsic a part of a social and economic system that they are treated as if they were laws. - Also termed consuetudinary law. "In contrast with the statute, customary law may be said to exemplify implicit law. Let us, therefore, describe custom· ary law in terms that will reveal to the maximum this quality of implicitness. A custom is not declared or enacted, but grows or develops through time. The date when it first came into full effect can usually be assigned only within broad limits. Though we may be able to describe in general the class of persons among whom the custom has come to prevail as a standard of conduct, it has no definite author; there is no person or defined human agency we can praise or blame for its being good or bad. There is no authoritative verbal declaration of the terms of the custom; it expresses itself not in a succession of words, but in a course of conduct." Lon L. Fuller, Anatomy of the Law 71 (1968).

customary seisin. See quasi-seisin under SEISIN. customary tenant. See TENANT. customers' goods. See GOODS. customer's man. See registered representative under REP­ RESENTATIVE.

customer's person. See registered representative under REPRESENTATIVE.

customhouse. A building or office, esp. at a port, where duties or customs are collected and where ships are cleared for entering or leaving the port. - Also spelled customshouse. customhouse broker. See BROKER. custom of York. See YORK, CUSTOM OF. Customs and Patent Appeals, Court of. See COURT OF CUSTOMS AND PATENT APPEALS.

customs broker. See customhouse broker under BROKER. Customs Cooperation Council. A specialized inter­ governmental organization for the study of customs questions.• Established in 1952, the Council has its headquarters in Brussels. - Abbr. CCc. Customs Court, U.S. See UNITED STATES CUSTOMS COURT.

customs duty. See DUTY (4). customs frontier. Int'llaw. The territorial boundary at which a country imposes customs duties. customshouse. See CUSTOMHOUSE. customs union. Int'l law. A combination of two or more countries within a single customs area with a common external tariff, though each participating country remains politically independent. • The effect is that tariffs originally levied on the traffic of goods between those countries are abolished or else succes­ sively dismantled according to an agreed-upon scheme, and that common tariffs are imposed on imports from nonmembers.

custos (k;)s-tahs also k;)s-t;)s). [Latin] Hist. A keeper, pro­ tector, or guardian. Custos Brevium (k;)s-tahs bree-vee-;)m). [Law Latin "keeper of the writs"] Hist. A clerk who receives and files the writs returnable to the Courts of King's Bench and Common Pleas.• The office was abolished in 1837. - Also termed Keeper of the Briefs. custos maris (k;)s-tahs mar-is). [Law Latin "warden ofthe sea"] Hist. A high-ranking naval officer; an admiral. ­ Also termed seaward; seward. custos morum (k;)s-tahs mor-dm). [Law Latin] Custodian of morals . • This name was some­ times used in reference to the Court of King's Bench. "[H]e [Viscount Simonds] approved the assertion of Lord Mansfield two centuries before that the Court of King's Bench was the custos morum of the people and had the superintendency of offences contra bonos mores." Patrick Devlin, The Enforcement of Morals 88 (1968).

custos placitorum coronae (k;)s-tahs plas-;)-tor-dm kd-roh-nee). [Law Latin] See CORONATOR. Custos Rotulorum (k;)s-tahs roch-p-lor-dm or rot-Yd­ lor-dm). [Law Latin "keeper of the pleas of the Crown"] Hist. The principal justice of the peace in a county, responsible for the rolls of the county sessions of the peace. - Also termed Keeper of the Rolls. Custos Sigilli. See KEEPER OF THE GREAT SEAL. custos spiritualium (k;)s-tahs spir-i-choo-ay-Iee-;)m or -tyoo-ay-Iee-;)m). [Law Latin "keeper of the spirituali­ ties"] Eccles. law. A member of the clergy responsible for a diocese's spiritual jurisdiction during the vacancy of the see. custos terrae (k;)s-tahs ter-ee). [Law Latin "keeper of the land"] Hist. Guardian, warden, or keeper of the land. custuma (k;)s-chd-md or k;)S-tp-md). [French coustum "toll" or "tribute"] Hist. A duty or impost. custumal, n. See CUSTOMARY. cutoff date. See DATE. cutpurse. Hist. A person who steals by cutting purses; a pickpocket. CVA. abbr. United States Court of Veterans Appeals. See UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS.

CVSG. abbr. A call for the view of the Solicitor General­ an invitation from the U.S. Supreme Court for the Solicitor General's views on a pending petition for writ of certiorari in a case in which, though the government is not a party, governmental interests are involved. Cwth. abbr. COMMONWEALTH (4). CXT. abbr. See common external tariff under TARIFF (2). cybercrime. See computer crime under CRIME. cybedaw (sI-bdr-law). (1994) The field oflaw dealing with the Internet, encompassing cases, statutes, regulations, and disputes that affect people and businesses interact­ ing through computers.• Cyberlaw addresses issues of online speech and business that arise because of the

nature of the medium, including intellectual property rights, free speech, privacy, e-commerce, and safety, as well as questions ofjurisdiction. - Also termed cyber­ space law. "Much of the hoopla about 'cyberspace law' relates more to climbing the steep learning curve of [the Internet'sl tech· nological complexities than to changes in fundamental legal principles. To the extent there was 'new' law, it was almost entirely case·by-case development, in accordance with accepted and well·understood basic legal principles, albeit applied to new technology and new circumstances." Jay Dratler Jr., Cyberlaw § 1.01, at 1·3 (2001).

cyberpatent. See business-method patent and Internet patent under PATENT (3). cyberpayment. A transfer of money over the Internet, usu. through a payment service. - Also termed Internet payment. cyberpiracy. Trademarks. The act of registering a well­ known name or mark (or one that is confusingly similar) as a website's domain name, usu. for the purpose of deriving revenue .• One form of cyber­ piracy is cybersquatting. Another is using a similar name or mark to mislead consumers. For example, a site called Nikee.com that sells Nikee branded athletic shoes and sporting goods would draw customers away the famous Nike brand. [Cases: Trademarks C=o 1490­ 1503.] - cyberpirate, n. cyberspace law. See CYBERLAW. cybersquatting. (1997) The act of reserving a domain name on the Internet, esp. a name that would be associ­ ated with a company's trademark, and then seeking to profit by selling or licensing the name to the company that has an interest in being identified with it .• The practice was banned by federal law in 1999. See ANTI­ CYBERSQUATTING CONSUMER PROTECTION ACT. [Cases: Telecommunications C=o 1333.] cyberstalking. (1995) The act of threatening, harass­ ing, or annoying someone through multiple e-mail messages, as through the Internet, esp. with the intent of placing the recipient in fear that an illegal act or an injury will be inflicted on the recipient or a member of the recipient's family or household. cyberterrorism. See TERRORISM. cybertheft. (1994) The act of using an online computer service, such as one on the Internet, to steal someone else's property or to interfere with someone else's use and enjoyment of property.• Examples of cybertheft are hacking into a bank's computer records to wrong­ fully credit one account and debit another, and interfer­ ing with a copyright by wrongfully sending protected material over the Internet. [Cases: Telecommunications C=o461.15.]

cyclical (sI-kl;l-bl or sik-l;l-bl), ad}. (Of a stock or an industry) characterized by large price swings that occur because of government policy, economic conditions, and seasonal changes. cy pres (see pray or SI). [Law French "as near as"] (1885) 1. The equitable doctrine under which a court reforms a written instrument with a gift to charity as closely to the donor's intention as possible, so that the gift does not fail. • Courts use cy pres esp. in construing charitable gifts when the donor's original charitable purpose cannot be fulfilled. It is also used to distrib­ ute unclaimed portions of a class-action judgment or settlement funds to a charity that will advance the interests of the class. More recently, courts have used cy pres to distribute class-action-settlement funds not amenable to individual claims or to a meaningful pro rata distribution to a nonprofit charitable organization whose work indirectly benefits the class members and advances the public interest. Cf. DOCTRINE OF APPROX­ IMATION. [Cases: Charities C=o37; Deposits in Court C=oll.] "The cy pres doctrine has been much discussed, if not a little severely criticised, and in many cases misunder­ stood .... The cy pres doctrine is one under which Courts of Chancery act, when a gift for charitable uses cannot be applied according to the exact intention of the donor. In such cases the courts will apply the gift, as nearly as possible (cy pres) in conformity with the presumed general intention of the donor; for it is an established maxim in the interpretation of wills, that a court is bound to carry the will into effect if it can see a general intention consistent with the rules of law, even if the particular mode or manner pointed out by the testator cannot be followed." George T. Bispham, The Principles ofEquity§ 104, at 113-14 (11th ed.1931). "Although the reason for the adoption of the cy pres rule by the English chancery court in the middle ages is not known, various hypotheses as to the motives of the court have been suggested. The most plausible theory is that the chancellors, being ecclesiastics and trained in Roman law, resurrected this civil law doctrine in order to save gifts made for religious purposes and thereby subject the property to church control. Justification for the use of the doctrine was laid on the shoulders of the donor, the idea being that since the object of the testator in donating the money to charity was to obtain an advantageous position in the kingdom of heaven, he ought not to be frustrated in this desire because of an unexpected or unforeseen failure." Edith L. Fisch, The Cy Pres Doctrine in the United States 4 (1950).

2. A statutory provision that allows a court to reform a will, deed, or other instrument to avoid violating the rule against perpetuities. See RULE AGAINST PERPETU­ ITIES. [Cases: Perpetuities C=o4(22).] cyrographarius (sI-roh-gp-fair-ee-;ls). [Law Latin] Hist. See CHIROGRAPH (4). cyrographum (sI-rog-r;l-bm). [Law Latin] See CHIRO­ GRAPH (2).

D

D. abbr. 1. DISTRICT. 2. DEFENDANT. 3. DIGEST. D.A. abbr. 1. DISTRICT ATTORNEY. 2. See deposit account under ACCOUNT. dactylography (dak-td-Iog-rd-fee), n. The scientific study of fingerprints as a method of identification. Also termed dactyloscopy. dactylographic (dak-til-d­ graf-ik), a'dj. dactyloscopy. See DACTYLOGRAPHY. DAF. abbr. DELIVERED AT FRONTIER. dailia. See DALUS. dailus. See DALUS. daily balance. (1859) The final daily accounting for a day on which interest is to be accrued or paid. average daily balance. The average amount of money in an account (such as a bank account or credit-card account) during a given period.• This amount serves as the basis for computing interest or a finance charge for the period. daily newspaper. See NEWSPAPER. daisy chain. A series ofpurchases and sales of the same stock by a small group of securities dealers attempting to drive up the stock's price to attract unsuspecting buyers' interest .• Once the buyers have invested (Le., are caught up in the chain), the traders sell for a qUick profit, leaving the buyers with overpriced stock. This practice is illegaL dalus (day-IdS), n. [Law Latin "a dale"] Hist. 1. A dale; a ditch. 2. A measure ofland being a thin strip ofpasture between two plowed furrows. Also termed dailus; dailia. damage, adj. Of or relating to monetary compensation for loss or injury to a person or property . - Also termed damages . Cf. DAMAGES. damage, n. (l4c) Loss or injury to person or property . damage-deer (dam-ij kIeer), n. [fro Latin damna cleri­ corum "clerk's compensation"] Hist. A set fee payable by a plaintiff to the Court of the Common Pleas, King's Bench, or Exchequer before execution on an award of damages.• The fee -later abolished by statute was originally a gratuity to the court clerks for preparing special pleadings. - Also spelled damage cleere. Also termed damna clericorum.

the plaintiff was obliged to pay to the prothonotary, or chief officer of that court, wherein they were recovered before he could have execution for them. But this is taken away by 17 Car. 2, c. 6." Termes de fa Ley 141 (lst Am. ed. 1812).

damage feasant (dam-ij fez-dnt orfee-zdnt), n. [fro French faisant dommage] Hist. Doing damage .• This phrase usu. refers to injury to a person's land caused by another person's animals trespassing on the property and eating the crops or treading the grass. By law, the owner of the damaged property could distrain and impound the animals until compensated by the animals' owner. But the impounder had to feed the animals and could not sell or harm them. The term was introduced during the reign of Edward III. Also spelled damage faisant. ­ Also termed damnum facientes. damage rule. See LEGAL-INJURY RULE. damages, n. pI. (l6c) Money claimed by, or ordered to be paid to, a person as compensation for loss or injury . damage, adj.

"Damages are the sum of money which a person wronged is entitled to receive from the wrongdoer as compensa­ tion for the wrong." Frank Gahan, The Law of Damages 1 (1936).

accumulative damages. Statutory damages allowed in addition to amounts available under the common law. Also termed enhanced damages. actual damages. (18c) An amount awarded to a com­ plainant to compensate for a proven injury or loss; damages that repay actual losses. Also termed com­ pensatory damages; tangible damages; real damages. [Cases: Damages ~) 15.J added damages. See punitive damages. additional damages. Damages usu. provided by statute in addition to direct damages .• Additional damages can include expenses resulting from the injury, con­ sequential damages, or punitive damages. benefit-of-the-bargain damages. (1955) Damages that a breaching party to a contract must pay to the aggrieved party, equal to the amounts that the