charter
or bylaws deSigned to prevent a takeover without the
consent of the board of directors. Cf. SHARK REPEL
LENT; POISON PILL port authority
pork-barrellegislation. See LEGISLATION.
pornography, n. (1842) Material (such as writings,
photographs, or movies) depicting sexual activity or
erotic behavior in a way that is designed to arouse
sexual excitement.  Pornography is protected speech
under the First Amendment unless it is determined to
be legally obscene. See OBSCENITY. [Cases: Obscenity
05.] -pornographic, adj.
child pornography. (1967) Material depicting a person
under the age of18 engaged in sexual activity . Child
pornography is not protected by the First Amend
ment -even if it falls short of the legal standard for
obscenity -and those directly involved in its distri
bution can be criminally punished. [Cases: Obscen
ity C=-:'5.]
virtual child pornography. Material that includes a
computer-generated image that appears to be a minor
engaged in sexual activity but that in reality does not
involve a person under the age of 18. [Cases: Obscen
ity(;:::::'5.]
port. 1. A harbor where ships load and unload cargo.
[Cases: Navigable Waters C=-:"14.j 2. Any place where
persons and cargo are allowed to enter a country and
where customs officials are stationed. -Also termed
(in sense 2) port ofentry.
foreign port. 1. One exclusively within the jurisdic
tion ofanother country or state. 2. A port other than
a home port.
free port. A port located outside a country's customs
frontier, so that goods may be delivered usu. free of
import duties or taxes, without being subjected to
customs-control procedures; FREE-TRADE ZONE.
homeport. The port that is either where a vessel is reg
istered or where its owner resides.
port of call. A port at which a ship stops during a
voyage.
port ofdelivery. The port that is the terminus of any
particular voyage and where the ship unloads its
cargo.
port ofdeparture. The port from which a vessel departs
on the start ofa voyage.
port ofdestination. The port at which a voyage is to
end. This term generally includes any stopping
places at which the ship receives or unloads cargo.
port ofdischarge. The place where a substantial part of
the cargo is discharged.
portable business. (1983) A portfolio oflegal business
that an attorney can take from one firm or geographic
location to another, with little loss in client relation
ships. Also termed portable practice.
port authority. (1870) A state or federal agency that
regulates traffic through a port or that establishes and
maintains airports, bridges, tollways, and public trans
portation. [Cases: Navigable Waters C=>14(2); Shipping
(;:::::'15.]

portfolio 1280
portfolio. (1848) 1. The various securities or other
investments held by an investor at any given time .
An investor will often hold several different types of
investments in a portfolio for the purpose of diversi
fying risk.
market portfolio. A value-weighted portfolio of every
asset in a particular market.
2. The role within the government of a high official
<minister without portfolio>.
portfolio income. See INCOME.
portfolio-pumping. Securities. The practice of pur
chasing additional shares of a stock near the end of a
fiscal period in an attempt to improve an investment
fund's apparent performance. Also termed window
dressing.
portio legitima (por-shee-oh la-jit-i-ma). [Latin "lawful
portion"] Roman & civil law. The portion of an estate
required by law to be left to close relatives; specif., the
portion of an inheritance that a given heir is entitled
to, and of which the heir cannot be deprived by the
testator without special cause. Cf. LEGITlME. PI. por
tiones legitimae.
portion. A share or allotted part (as ofan estate).
portioner (por-sha-nar), n. I. Scots law. One who owns
a portion of a decedent's estate.
heir portioner. 1. One oftwo or more female heirs who,
in the absence ofmale heirs, inherit equal shares of an
estate. 2. One of two or more usu. female heirs in the
same degree who take equal shares per capita.
2. The proprietor ofa small fee. 3. His!. A minister who
serves a benefice with others . The person was called a
portioner because he had only a portion of the tithes or
allowance that a vicar commonly has out of a rectory
or impropriation.
portionibus haereditariis (por-shee-oh-na-bas ha-red-i
tair-ee-is). [Law Latin] Hist. In hereditary portions.
port ofcall. See PORT.
port ofdelivery. See PORT.
port ofdeparture. See PORT.
port ofdestination. See PORT.
port ofdischarge. See PORT.
port of entry. See PORT (2).
portorium (por-tohr-ee-am). [Law Latin] Hist. 1. A tax
or toll levied at a port or at the gates of a city. 2. A toll
for passing over a bridge.
port-risk insurance. See INSURANCE.
portsale. Hist. A pUblic sale of goods to the highest
bidder; an auction.
port-state control. Maritime law. The exercise of author
ity under international conventions for a state to stop,
board, inspect, and when necessary detain vessels
sailing under foreign flags while they are navigating
in the port state's territorial waters or are in one of
its ports . The purpose is to ensure the safety of the vessels as well as to enforce environmental regulations.
Cf. COASTAL-STATE CONTROL; FLAG-STATE CONTROL.
port toll. A duty paid for bringing goods into a port.
portwarden. An official responsible for the administra
tion of a port.
po. se. abbr. PONIT SE SUPER PATRIAM.
posit, vb. 1. To presume true or to offer as true. 2. To
present as an explanation.
position. The extent of a person's investment in a par
ticular security or market.
positional-risk doctrine. The principle by which the
workers'-compensation requirement that the injury
arise out of employment is satisfied if the injured
worker's employment required the worker to be at
the place where the injury occurred at the time it
occurred. Also termed positional risk analysis; posi
tional risk tcst. [Cases: Workers' Compensation (:::::
607.]
position of the United States. (1981) The legal position
of the federal government in a lawsuit, esp. in a case
involving the Equal Access to Justice Act.  Under the
EAJA, the reasonableness of the position in light of
precedent determines whether the government will be
liable for the opposing party's attorney's fees. [Cases:
United States Cr'-::> 147(10).]
positive act. 1. OVERT ACT. 2. ACT (2).
positive condition. See CONDITION (2).
positive covenant. See COVENANT (1).
positive duty. See DUTY (1).
positive easement. See affirmative easement under
EASEMENT.
positive evidence. See direct evidence (1) under
EVIDENCE.
positive externality. See EXTERNALITY.
positive fraud. See actual fraud under FRAUD.
positive justice. See JUSTICE (1).
positive law. (14c) A system of law promulgated and
implemented within a particular political community
by political superiors, as distinct from moral law or
law existing in an ideal community or in some non
political community . Positive law typically consists
of enacted law -the codes, statutes, and regulations
that are applied and enforced in the courts. The term
derives from the medieval use ofpositum (Latin "estab
lished "), so that the phrase positive law literally means
law established by human authority. -Also termed jus
positivum; made law. Cf. NATURAL LAW.
"A judge is tethered to the positive law but should not be
shackled to it." Patrick Devlin, The Enforcement of Morals
94 (1968).
positive misprision. See MISPRISION.
positive notice. See direct notice under NOTICE.
positive prescription. See PRESCRIPTION (5).
positive proof. See PROOF.

1281 possession
positive reprisal. See REPRISAL.
positive right. See RIGHT.
positive servitude. See SERVITUDE (2).
positive testimony. See affirmative testimony under TES
TIMONY.
positive wrong. See WRONG.
positivi juris (pOZ-~-tI-vI joor-is). [Law Latin] Ofpositive
law. See POSITIVE LAW.
positivism. (1846) The doctrine that all true knowl
edge is derived from observable phenomena, rather
than speculation or reasoning. See LEGAL POSITIVISM;
LOGICAL POSITIVISM; positivist jurisprudence under
JURISPRUDENCE.
positivistic, adj. Of or relating to legal positivism. See
LEGAL POSITIVISM.
positivistic jurisprudence. See positivist jurisprudence
under JURISPRUDENCE.
positivist jurisprudence. See JURISPRUDENCE.
posse (pos-ee). [Latin] (16c) 1. A possibility. See IN POSSE.
Cf. IN ESSE. 2. Power; ability. 3. POSSE COMITATUS.
posse comitatus (pos-ee kom-<l-tay-t<ls), n. [Latin "power
ofthe county"] (16c) A group ofcitizens who are called
together to help the sheriff keep the peace or conduct
rescue operations. -Often shortened to posse. [Cases:
Armed Services Sheriffs and Constables C::J
27.)
Posse Comitatus Act. A federal law that, with a few
exceptions, prohibits the Army or Air Force from
directly participating in civilian law-enforcement oper
ations, as by making arrests, conducting searches, or
seizing evidence . The Act was originally enacted in
1878. It does not usu. apply to members of the Navy,
the National Guard, or the Coast Guard. 18 USCA
 1385. Abbr. PCA. [Cases: Armed Services
3(2).]
possess, vb. (14c) To have in one's actual control; to have
possession of.
possessio (p<l-zes[h]-ee-oh), n. [Latin] The de facto
control ofa thing that the holder intends to control.
pedis possessio (pee-dis or ped-is p<l-zes[h]-ee-oh).
[Latin] A foothold; an actual possession of real
property, implying either actual occupancy or enclo
sure or use. See PEDIS POSSESSIO DOCTRINE. Also
termed substantial possession; possessio pedis.
possessio bona fide (p<l-zes[h]-ee-oh boh-n~ fI-dee).
[Latin] Possession in good faith. Cf. possessio mala
fide.
possessio bonorum (p~-zes[h]-ee-oh b~-nor-<lm).
[Latin] Roman law. Possession ofgoods.
possessio civilis (p~-zes[hJ-ee-oh s<l-vI-lis). [Latin]
Roman law. Legal possession; that is, possession
accompanied by an intent to hold it as one's own.
Also termed possession in law. See possessory inter
dict under INTERDICT (1); USUCAPIO; possession in law
under POSSESSION. Cf. possessio naturalis. possessio corporis. See corporeal possession under pos
SESSION.
possessio fietitia. See constructive possession under
POSSESSION.
possessio fratris (p<l-zes[hJ-ee-oh fray-tris or fra-tris).
[Latin] Hist. 'Ihe possession or seisin ofa brother; that
is, a possession of an estate by a brother that would
entitle his full sister to succeed him as heir, to the
exclusion ofa half-brother.
possessio juris. See incorporeal possession under pos
SESSION.
possessio mala fide (p~-zes[h]-ee-oh mal-<l fI-dee).
[Latin] Possession in bad faith, as by a thief. Cf. pos
sessio bona fide.
possessio naturalis (p~-zes[h]-ee-oh nach-<l-ray-Iis).
[Latin "natural possession"] Roman law. lhe simple
holding of a thing, often under a contract, with no
intent ofkeeping it permanently . This type of pos
session exists when the possessor's holding of the
object is limited by a recognition ofanother person's
outstanding right. The holder may be a usufructu
ary, a bailee, or a servant. -Also termed naturalis
possessio; nuda detentio; detentio; possession in fact.
See natural possession under POSSESSION. Cf. posses
sio civilis.
possessio pedis. See pedis possessio.
possession. (14c) 1. The fact of haVing or holding
property in one's power; the exercise of dominion
over property. [Cases: Property C;=, 10.] 2. The right
under which one may exercise control over something
to the exclusion of all others; the continuing exercise of
a claim to the exclusive use ofa material object. 3. Civil
law. The detention or use ofa physical thing with the
intent to hold it as one's own. La. Civ. Code art. 3421(1).
4. (usu. pl.) Something that a person owns or controls;
PROPERTY (2). Cf. OWNERSHIP; TITLE (1). 5. A territorial
dominion of a state or nation.
"[Als the name of Possession is ... one of the most impor
tant in our books, so it is one of the most ambiguous.


the name of Possession is ... one of the most impor
tant in our books, so it is one of the most ambiguous.
Its legal senses (for they are several) overlap the popular
sense, and even the popular sense includes the assumption
of matters of fact wh ich are not always easy to verify. In
common speech a man is said to possess or to be in pos
session of anything of which he has the apparent control,
or from the use of which he has the apparent power of
excluding others .... IAlny of the usual outward marks of
ownership may suffice, in the absence of manifest power in
some one else, to denote as having possession the person
to whom they attach. Law takes this popular conception as
a provisional groundwork, and builds up on it the notion of
possession in a technical sense, as a definite legal relation
to something capable of having an owner, which relation is
distinct and separable both from real and from apparent
ownership, though often concurrent with one or both of
them." Frederick Pollock & Robert Samuel Wright, An Essay
on PosseSSion in the Common Law 1~2 (1888).
"In the whole range of legal theory there is no concep
tion more difficult than that of possession. The Roman
lawyers brought their usual acumen to the analysis of it,
and since their day the problem has formed the subject of
a voluminous literature, while it still continues to tax the
ingenuity ofjurists. Nor is the question one of mere curios
ity or scientific interest, for its practical importance is not

1282 possession
less than its difficulty. The legal consequences which flow
from the acquisition and loss of possession are many and
serious, Possession, for example, is evidence of ownership;
the possessor of a thing is presumed to be the owner of
it, and may put all other claimants to proof of their title."
John Salmond, jurisprudence 285 (Glanville L Williams ed.,
10th ed. 1947).
actual possession. (16c) Physical occupancy or control
over property. Cf. constructive possession. [Cases:
Property (;:::> 1O.J
adverse possession. See ADVERSE POSSESSION.
bona fide possession. (1815) Possession of property by
a person who in good faith does not know that the
property's ownership is disputed. [Cases: Vendor and
Purchaser (;:::>220.)
civil possession. 1. Civil law. Possession existing by
virtue of a person's intent to own property even
though the person no longer occupies or has physical
control of it. 2. Louisiana law. The continuation of
possession through the possessor's presumed intent
to continue holding the thing as his or her own, after
the possessor' ceases to the thing corporeally.
La. Civ. Code arts. -Civil possession may
be evidenced by such things as paying taxes on the
property or granting rights of interest in it. [Cases:
Property (;:::> 1O.J
constructive possession. (18c) 1. Control or dominion
over a property without actual possession or custody
of it. -Also termed effective possession. [Cases:
Property (;='10.] 2. Civil law. Possession by operation
oflaw of an entirety by virtue of corporeal possession
ofa part . When a possessor holds title to a property
and physically possesses part of it, the law will deem
the possessor to hold constructive possession of the
rest of the property described in the title. La. Civ.
Code art. 3426. Also termed possessio fictitia; pos
session in law. Cf. actual possession.
corporeal possession. Possession ofa material object,
such as a farm or a coin. Also termed natural pos
session; possessio corporis; (Ger.) Sachenbesitz. [Cases:
Property
criminal possession. (1811) The unlawful possession
of certain prohibited articles, such as illegal drugs
or drug paraphernalia, firearms, or stolen property.
[Cases: Controlled Substances Receiving
Stolen Goods Weapons
derivative possession. (1851) Lawful possession by one
(such as a tenant) who does not hold title.
direct possession. See immediate possession.
double possession. The doctrine that, in a bailment,
both the bailor and the bailee have possession of the
item that has been bailed . This doctrine does not
apply in most Anglo-American jurisdictions.
"It has been suggested that the essence of bailment is that
the bailee secures possession and therefore that the bailor
loses possession. This elementary proposition is some'
times obscured by the fact that some dicta treat the pos
session of the bailee as the possession of the bailor. The
theoretical justification for this is the doctrine of 'double
possession' - a principal may have possession through the possession of an agent, This view is in accord with some
foreign systems, but it does not suit the basic principles
of English law which treats possession as exclusive," GW.
Paton, Bailment in the Common Law 6 (1952).
effective possession. See constructive possession.
exclusive possession. (l8c) The exercise of exclusive
dominion over property, including the use and benefit
ofthe property.
hostile possession. (1812) Possession asserted against
the claims of all others, esp. the record owner. See
ADVERSE POSSESSION. [Cases: Adverse Possession C~
58-85.]
immediate possession. (I7c) Possession that is acquired
or retained directly or personally. -Also termed
direct possession.
immemorial possession. Possession that began so long
ago that no one still living witnessed its beginning.
incorporeal possession. (1964) Possession ofsomething
other than a material object, such as an easement
over a neighbor's land, or the access of light to the
windows of a house. Also termed possessio juris;
quasi-possession.
"It is a question much debated whether incorporeal posses
sion is in reality true possession at all. Some are of opinion
that all genuine possession is corporeal, and that the other
is related to it by way of analogy merely, They maintain
that there is no single generic conception which includes
possessio corporiS and possessio juris as its two specific
forms. The Roman lawyers speak with hesitation and even
inconsistency on the point. They sometimes include both
forms under the title of posseSSiO, while at other times
they are careful to qualify incorporeal possession as quasi
possessio -something which is not true possession, but is
analogous to it. The question is one of no little difficulty,
but the opinion here accepted is that the two forms do in
truth belong to a single genus. The true idea of possession
is wider than that of corporeal possession, just as the true
idea of ownership is wider than that of corporeal owner
ship." John Salmond, jurisprudence 288-89 (Glanville l.
Williams ed., 10th ed. 1947).
indirect possession. See mediate possession.
insular possession. An island territory of the United
States, such as Guam. [Cases: Territories
joint possession. Possession shared by two or more
persons.
mediate possession (mee-dee-it). Possession of a thing
through someone else, such as an agent. _ In every
instance of mediate possession, there is a direct pos
sessor (such as an agent) as well as a mediate possessor
(the principal). -Also termed indirect possession.
"If I go myself to purchase a book, I acquire direct posses
sion of it: but if I send my servant to buy it for me, I acquire
mediate possession of it through him, until he has brought
it to me, when my possession becomes immediate." John
Salmond,jurisprudence 300 (Glanville L. Williams ed., 10th
ed.1947),
naked possession. (16c) The mere possession ofsome
thing, esp. real estate, without any apparent right or
colorable title to it. [Cases: Estates in Property (;::::-1;
Property 10.]

1283
natural possession. Civil law. The exercise of physical
detention or control over a thing, as by occupying a
building or cultivating farmland . Natural posses
sion may be had without title, and may give rise to
a claim of unlawful possession or a claim of owner
ship by acquisitive prescription. The term "natural
possession" has been replaced by the term "corporeal
possession" in the Louisiana Civil Code, by virtue
ofa 1982 revision. La. Civ. Code Ann. art. 3425. See
corporeal possession; PRESCRIPTION (2). Cf. possessio
naturalis under POSSESSIO. [Cases: Adverse Posses
sion (;:.7> 14; Property (;::::> 1O.J
notorious possession. (l8c) Possession or control that is
evident to others; possession of property that, because
it is generally known by people in the area where the
property is located, gives rise to a presumption that
the actual owner has notice of it. Notorious pos
session is one element ofadverse possession. -Also
termed open possession; open and notorious posses
sion. See ADVERSE POSSESSION. [Cases: Adverse Pos
session ~-::::28-33.1
open and notorious possession. See notorious posses
sion.
open possession. See notorious possession.
peaceable possession. (16c) Possession (as of real
property) not disturbed by another's hostile or legal
attempts to recover possession; esp., wrongful pos
session that the rightful possessor has appeared to
tolerate. Cf. scrambling possession (1); ADVERSE pos
SESSIOK.
pedal possession. (1839) Actual possession, as by living
on the land or by improving it. This term usu.
appears in adverse-possession contexts.
possession animo domini. Civil law. Possession with
the intent to own a thing, movable or immovable;
possession as an owner. See La. Civ. Code art. 3427.
possession by relation oflaw. A person's legally rec
ognized possession ofland despite the person's not
having actual possession after being improperly or
unlawfully dispossessed by another.
possession in fact. (17c) Actual possession that may
or may not be recognized by law . For example, an
employee's possession ofan employer's property is for
some purposes not legally considered possession, the
term detention or custody being used instead. Also
termed possessiO naturalis.
possession in law. (16c) 1. Possession that is recognized
by the law either because it is a specific type ofposses
sion in fact or because the law for some special reason
attributes the advantages and results ofpossession to
someone who does not in fact possess. 2. See construc
tive possession. -Also termed possessio civilis.
"There is no conception which will include all that amounts
to possession in law, and will include nothing else, and
it is impossible to frame any definition from which the
concrete law of possession can be logically deduced." John
Salmond, jurisprudence 287 (Glanville L. Williams ed., 10th
ed.1947). possessory claim
possession ofa right. (17c) The continuing exercise and
enjoyment ofa right.  This type ofpossession is often
unrelated to an ownership interest in property. For
example, a criminal defendant possesses the right to
demand a trial by jury. Also termed possessio juris;
(Ger.) Rechtsbesitz.
precarious possession. Civil law. Detention ofproperty
by someone other than the owner or possessor on
behalf of or with permission of the owner or pos
sessor. A lessee has precarious possession of the
leased property.
"[Article 3437 of the LouiSiana Civil Code defines precari
ous possession as) 'exercise of possession over a thing with
the permission of or on behalf of the owner or possessor.'
The definition indicates the difference between possession
in the proper sense of the word and precarious posses
sion, that is, detention. A possessor is one who possesses
as owner, whereas a precarious possessor or detainer is
one who exercises factual authority over a thing with the
permission of or on behalf of another person." A.N. Yian
nopoulos, Civil Law Pl"Operty  319, at 629 (4th ed. 2001).
quasi-possession. See incorporeal possession.
scrambling possession. (1823) 1. A wrongful posses
sion that the rightful possessor has not appeared to
tolerate. Cf. peaceable possession. 2. Possession that
is uncertain because it is in dispute. With scram
bling possession, the dispute is over who actually has
posseSSion -not over whether a party's posseSSion
is lawful.
substantial possession. See pedis possessio under pos-
SESSIO.
possession unity. See unity ofposseSSion under UNITY.
possessio pedis. See pedis possessio under POSSESSIO.
possessor. (15c) One who has possession of real or
personal property; esp., a person who is in occupancy
ofland with the intent to control it or has been but no
longer is in that position, but no one else has gained
occupancy or has a right to gain it. -possessorial
(pos-<l-sor-ee-<ll), adj.
legal possessor. (17c) One with the legal right to possess
property, such as a buyer under a conditional sales
contract, as contrasted with the legal owner who
holds legal title. See legal owner under OWNER.
possessor bonafide (boh-n<l fI-dee). A possessor who
believes that no other person has a better right to the
possession.
possessor mala fide (mal-a fI-dee). A possessor who
knows that someone else has a better right to the pos
session.
possessorium (pos-<l-sor-ee-<lm). See possessory action
under ACTION (4
possessory (pa-zes-<l-ree), adj. Of, relating to, or having
possession.
possessory action. See ACTION (4).
possessory claim. (1833) Title to public land held by a
claimant who has filed a declaratory statement but has
not paid for the land. [Cases: Public Lands (;::::>31.]

1284 possessory conservator
possessory conservator. See noncustodial parent under
PARENT.
possessory estate. See ESTATE (1).
possessory garageman's lien. See LIEN.
possessory interdict. See INTERDICT (1).
possessory interest. (18c) 1. The present right to control
property, including the right to exclude others, by a
person who is not necessarily the owner. [


1. The present right to control
property, including the right to exclude others, by a
person who is not necessarily the owner. [Cases:
Property 10.] 2. A present or future right to the
exclusive use and possession ofproperty.
''We shall use the term 'possessory interest' to include both
present and future interests, and to exclude such interests
as easements and profits. The reader should note that
the Restatement of Property uses the term 'possessory'
to refer only to interests that entitle the owner to present
possession. See Restatement, Property  7, 9, 153 (1936)."
Thomas F. Bergin & Paul G. Haskell, Preface to Estates in
Land and Future Interests 19-20 n.1 (2d ed. 1984).
possessory lien. See LIEN.
possessory warrant. See WARRANT (1).
possibilitas (pos-;}-bil-;}-tas). [Latin] Possibility; a pos
sibility.
possibility. (14c) 1. An event that mayor may not happen.
2. A contingent interest in real or personal property.
bare possibility. See naked possibility.
naked possibility. (18c) A mere chance or expectation
that a person will acquire future property . A con
veyance of a naked possibility is usu. void for lack of
subject matter, as in a deed conveying all rights to a
future estate not yet in existence. -Also termed bare
possibility; naked expectancy. [Cases: Assignments
C='8.]
possibility coupled with an interest. (18c) An expec
tation recognized in law as an estate or interest, as
occurs in an executory devise or in a shifting or
springing use . This type of possibility may be sold
or aSSigned. See shifting use, springing use under USE.
[Cases: Assignments C=Y 9.]
possibility on a possibility. See remote possibility.
remote possibility. (l7c) A limitation dependent on two
or more facts or events that are contingent and uncer
tain; a double possibility. -Also termed possibility
on a possibility.
possibility ofreverter. (18c) A reversionary interest that
is subject to a condition precedent; speci., a future
interest retained by a grantor after conveying a fee
simple determinable, so that the grantee's estate ter
minates automatically and reverts to the grantor ifthe
terminating event ever occurs . In this type ofinterest,
the grantor transfers an estate whose maximum poten
tial duration equals that of the grantor's own estate
and attaches a special limitation that operates in the
grantor's favor. -Often shortened to reverter. See fee
simple determinable under FEE SIMPLE. Cf. REMAINDER
(1); REVERSION.
"Most treatisewriters define the possibility of reverter as
the interest a transferor keeps when he transfers a fee
simple determinable or a fee simple conditional. See, e.9., 1 American Law of Property  4.12; Simes & Smith  281.
Although this definition is all fight as far as it goes, it fails
to provide for interests less than the fee simple that are
granted on special limitation.... Although we call the
possibility of reverter an 'estate,' the courts of an earlier
era would probably have called it a 'possibility of becoming
an estate.''' Thomas F. Bergin & Paul G. Haskell, Preface to
Estates in Land and Future Interests 58 n.5 (2d ed. 1984).
possibility on a possibility. See remote possibility under
POSSIBILITY.
possidere (pos-;}-dee-ree). [Latin fr. potis "having power"
+ sedere "to sit"] Hist. To possess (a thing), esp. as a
person with an interest protected by law (e.g., an owner
or mortgagee) rather than a mere custodian.
"A distinction was made in the civil law, and adopted by
Bracton, between possidere, (to possess,) and esse in pos
sess/one, (to be in possession.) .... Thus, a guardian,
holding in demesne though not in fee, was said to be /n
possession, though he did not possess. The same language
was applied to a bailiff, ... a domestic, ... a fermor or
lessee, ... and a tenant at will from day to day, and from
year to year." 2 Alexander M. Burrill, A Law Dictionary and
Glossary 314 (2d ed. 1867).
POSSLQ (pahs-dl-kyoo). abbr. A person ofopposite sex
sharing living quarters . Although this term (which
is used by the Census Bureau) is intended to include
only a person's roommate ofthe opposite sex to whom
the person is not married, the phrase literally includes
those who are married. This overbreadth has occasion
ally been criticized. See cUPos.
"In the 1980 census, the United States Census Bureau
recognizing a societal change with numerous persons
living together without being 'officially' married -counted
not only persons who were 'Single' and 'Married,' but also
'Persons of the Opposite Sex Sharing Living Quarters.' The
acronym is PDSSLQ--- and, of course, is pronounced possle
kew. It has been suggested that, although the sou ree was
stunningly unlikely, it was the Very Word that society has
been looking for to describe these relationships: POSSLQ.
Precise, bUSinesslike, nonjudgmental. And, in its own way,
sort of poetic. too ...." Fischer v. Dallas Federal Savings
and Loan Ass'n, 106 F.R.D. 465 (N.D. Tex, 1985).
post. [Latin] (14c) After. Cf. ANTE.
post, vb. (17c) 1. To publicize or announce by affixing a
notice in a public place <foreclosure notice was posted
at the county courthouse>. 2. To transfer (accounting
entries) from an original record to a ledger <post debits
and credits>. 3. To place in the mail <post a letter>.
[Cases: Postal Service 19.]4. To make a payment
or deposit; to put up <post bail>.
postal currency. See CURRENCY.
Postal Rate Commission. An independent federal
agency that recommends changes in postage rates,
fees, and mail classifications to the governors of the
United States Postal Service . It was created by the
Postal Reorganization Act. 39 USCA  3601-04.
Abbr. PRe. [Cases: Postal Service
post-answer default judgment. See DEFAULT
JUDGMENT.
post audit. See AUDIT.
post bail, vb. See GIVE BAIL.

1285
post causam cognitam (pohst kaw-z;}m kog-ni-t;}m).
[Latin] Hist. After investigation. Cf. CAUSA COGNITA.
post contractum debitum (pohst bn-trak-t;}m deb-i
t;}m). [Latin] Hist. After debt has been contracted.
postconviction-relief proceeding. (1964) A state or
federal procedure for a prisoner to request a court
to vacate or correct a conviction or sentence. Also
termedpostconviction-remedy proceeding; peR action;
postconviction proceeding. [Cases: Criminal Law (;:=
1400-1669.]
postdate, vb. (17c) To put a date on (an instrument,
such as a check) that is later than the actual date. Cf.
ANTEDATE; BACKDATE. [Cases: Bills and Notes (;:=)8.]
postdated check. See CHECK.
post diem (pohst dI-;}m). [Latin] After the day . A plea
of payment post diem is made after the day when the
money becomes due.
post disseisina. See DE POST DISSEISINA.
postea (poh-stee-;}), n. [Latin "afterwards] Hist. A
formal statement, endorsed on the trial record, giving
an accou nt ofthe proceedings at trial; a record ofwhat
occurred at nisi prius after the issue had been joined.
"With the verdict of the jury [in the 15th-18th centuries] ...
the proceedings at nisi prius closed, and the case was sent
back to the court at Westminster from which it issued for
judgment, after a statement of the holding of the trial and
of the verdict had been added to the record. This state
ment, from the fact that it began with the Latin word
'postea,' or 'afterwards,' was known as the 'postea' and
was in fact drafted by the party in whose favour the verdict
had gone, whence the phrase 'postea to the plaintiff' or
'the defendant,' which is found in the old reports." Geoffrey
Radcliffe & Geoffrey Cross, The English Legal System 185
(G.J. Hand & D.1-Bentley eds., 6th ed. 1977).
posted water. See WATER.
posteriores (pah-steer-ee-or-eez), n. pl. [Latin] Roman
law. Descendants in a direct line beyond the sixth
degree.
posteriority (pah-steer-ee-or-;}-tee). The condition or
state of being subsequent.  This word was formerly
used to describe the relationships existing between a
tenant and the two or more lords the tenant held of;
the tenant held the older tenancy "by priority" and the
more recent one "by posteriority."
posterity, n. (14c) 1. Future generations collectively. 2.
All the descendants of a person to the furthest genera
tion.
post-expiration-sales theory. Patents. A theory of
lost-profits remedy by which compensation is sought
for sales lost after a patent expired, on the basis that
infringement gave the competitor a head start on
entering the market. -Also termed accelerated reentry
theory. [Cases: Patents (;:=318(3).]
postfacto (pohst fak-toh). [Latin] After the fact. See EX
POST FACTO.
post-factum (pohst-fak-t;}m). [Latin] An after-act; an act
done afterwards. -Also termed postfactum.
post-fine. See KING'S SILVER. postliminium
postglossators (pohst-glah-say-t;}fz), n. pl. (often cap.) A
group of mainly Italian jurisconsults who were active
during the 14th and 15th centuries writing commen
taries and treatises that related Roman law to feudal
and Germanic law, canon law, and other contempo
rary bodies oflaw . The postglossators constituted the
second wave ofRoman-law study after its revival in the
lith century, the first being that of the glossators.
Also termed commentators. See GLOSSATORS.
post hoc (pohst hok). [Latin fr. post hoc, ergo propter
hoc "after this, therefore because ofthis"] (1844) 1. adv.
After this; subsequently. 2. adj. Of or relating to the
fallacy of assuming causality from temporal sequence;
confusing sequence with consequence.
posthumous (pos-ch;}-m;}s), adj. Occurring or existing
after death; esp., (of a child) born after the father's
death.
posthumous adoption. See ADOPTION.
posthumous child. See CHILD.
posthumous work. See WORK (2).
posting. (17c) 1. Accounting. The act of transferring
an original entry to a ledger. 2. The act of mailing a
letter. 3. A method of substituted service of process
by displaying the process in a prominent place (such
as the courthouse door) when other forms of service
have failed. See SERVICE (1). [Cases: Process (;:=8t.]
4. A publication method, as by displaying municipal
ordinances in deSignated localities. [Cases: Munici
pal Corporations (;=;110.] 5. The act ofproViding legal
notice, as by affixing notices of judicial sales at or on
the courthouse door. [Cases: Judicial Sales <,,~11.] 6.
The procedure for processing a check, including one or
more ofthe following steps; (1) verifying any signature,
(2) ascertaining that sufficient funds are available, (3)
affixing a "paid" or other stamp, (4) entering a charge
or entry to a customer's account, and (5) correcting or
reversing an entry or erroneous action concerning the
check. [Cases: Banks and Banking (;:= 137.]
post-issue activity. Patents. Any acts done during a
patent's term, induding making, using, or selling a
patented invention or process, esp. without authori
zation.
postjudgment discovery. See DISCOVERY.
postliminium (pohst-I03-min-ee-;}m), n. [fro Latin post
"after" + limen "threshold"] 1. Roman & civil law. The
reentering of one's residence. 2. Roman & civil law.
The doctrine that a restoration ofa person's lost rights
or status relates back to the time of the original loss
or deprivation, esp. in regard to the restoration of the
status of a prisoner ofwar.
"[AJ person who is taken captive and comes back within the
limits of the Empire is correctly described as returning by
postliminium. By 'limen' (threshold) we mean the frontier
of a house, and the old lawyers applied the word to the
frontier of the Roman State; so that the word postliminium
conveys the idea of recrossing the frontier. If a prisoner is
recovered from a beaten foe he is deemed to have come
back by postliminium." R.W. Lee, The Elements of Roman
Law 85-86 (4th ed. 1956).

3. Int'I law. The act of invalidating all of an occupying
force's illegal acts, and the post-occupation revival of
all illegitimately modified legal relations to their former
condition, esp. the restoration of property to its rightful
owner. -Also termed postliminy; jus postliminii.
post litem motam (pohst h-t;lm moh-tdm). [Law Latin]
After suit commenced. -Depositions held after litiga
tion had begun were formerly sometimes so called.
postman (pohst-m;ln). Hist. A barrister in the Court
of Exchequer who had precedence in motions. -The


hst-m;ln). Hist. A barrister in the Court
of Exchequer who had precedence in motions. -The
postman was so called because ofthe post he stood next
to when making motions. Cf. TUBMAN.
"The postman was an experienced member of the junior
Bar who had a place in the Court of Exchequer by the post
anciently used as a measure of length in excise cases. He
had precedence in motions over all other juniors ...." Sir
Robert Megarry, A Second Miscellany-at-Law 122 (1973).
postmarital, adj. 1. Of, relating to, or occurring after
marriage. Cf. PREMARITAL. 2. Of, relating to, or occur
ring after divorce.
postmark. An official mark put by the post office on
an item of mail to cancel the stamp and to indicate
the place and date ofsending or receipt. [Cases: Postal
Service 15.]
postmaster. A U.S. Postal Service official responsible for
a local branch of the post office. -Abbr. PM. [Cases:
Postal Service C:::>7.]
Postmaster General. The head ofthe U.S. Postal Service.
[Cases: Postal Service C=>4.]
post meridiem (pohst mJ-rid-ee-;lm). [Latin] After
noon. -Abbr. p.m.; PM.
postmortem, adj. (1824) Done or occurring after death
<a postmortem examination>.
postmortem, n. See AUTOPSY (1).
postnatus (pohst nay-tJs). [Latin] A person born after a
certain political event that affected the person's politi
cal rights; esp., a person born after the Declaration of
Independence. Cf. ANTENATUS. PI. postnati.
post note. A banknote payable at a future time rather
than on demand. See time note under NOTE (1).
postnup, n. Slang. See POSTNUPTIAL AGREEMENT.
postnuptial (pohst-n3p-shJI), adj. (1807) Made or occur
ring during marriage <a postnuptial contract>. Cf. PRE
NUPTIAL. [Cases: Husband and Wife C:--,30.]
postnuptial agreement (pohst-n3p-sh<lI). (1834) An
agreement entered into during marriage to define
each spouse's property rights in the event of death or
divorce. _ The term commonly refers to an agreement
between spouses during the marriage at a time when
separation or divorce is not imminent. When dissolu
tion is intended as the result, it is more properly called
a property settlement or marital agreement. -Often
shortened to postnup. -Also termed postnuptial settle
ment. Cf. PRENUPTIAL AGREEMENT. [Cases: Husband
and Wife 31.]
postnuptial settlement. See POSTNUPTIAL AGREE
MENT. postnuptial will. See WILL.
post-obit agreement. See BOND (3).
post-obit bond. See BOND (3).
postpone, vb. (1Sc) 1. To put off to a later time. 2. To place
lower in precedence or importance; esp., to subordinate
(a lien) to a later one. 3. Parliamentary law. To tem
porarily or permanently suppress a main motion.
postponement, n.
postpone definitely. To delay a main motion's consid
eration to a specified time or until a specified con
dition occurs, usu. by the next meeting -or to the
next meeting as unfinished business. -Also termed
postpone to a certain time; postpone to a definite time;
postpone to a time certain. See TIME CERTAIN.
postpone indefinitely. To dispose of a main motion
without taking a view on its merits while prevent
ing its further consideration during the same session.
 This motion's ancient form in the English Parlia
ment was to postpone consideration until "this day
six months" (or "three months") -that is, some time
beyond the current session, sufficiently remote that
the body expected not to consider the matter again.
Also termed indefinite postponement.
postpone temporarily. See TABLE.
postpone to a certain time. See postpone definitely.
postpone to a definite time. See postpone definitely.
postpone to a time certain. See postpone definitely.
post prolem suscitatam (pohst proh-IJm SJs-J-tay-t::lm).
[Law Latin] After issue born.
postremogeniture. See BOROUGH ENGLISH.
post tan tum temporis (pohst tan-t;lm tem-pJ-ris). [Latin]
Hist. After so long a time.
post-terminal sitting. A court session held after the
normal term.
post terminum (pohst t3r-m;l-n;lm). [Law Latin] After
term, as a writ returned after the ending of a judicial
term.
posttrial discovery. See post judgment discovery under
DISCOVERY.
posttrial motion. See MOTION (1).
posttrial proceeding. See PROCEEDING.
postulate, vb. Eccles. law. To name someone to an ecclesi
astical position, subject to approval by a higher author
ity.
postulatio (pos-ch;l-Iay-shee-oh). [Latin] Hist. Eccles.
law. A petition requesting the naming or transfer of
a bishop.
postulatio actionis (pos-chd-Iay-shee-oh ak-shee-oh
nis). [Latin] Roman law. A request to a magistrate
having jurisdiction for permission to bring an action.
potentate (poh-tJn-tayt). A ruler who possesses great
power or sway; a monarch.
potentia (p;l-ten-shee-;l). [Latin] Possibility; power.

1287 pourover will
potential, adj. Capable of coming into being; possible
<things having a potential existence may be the subject
of mortgage, assignment, or sale>.
potentially responsible party. Environmental law. A
person or entity that may be required to clean up a
polluted site because the person or entity (1) owns or
operates on the site, (2) arranged for the disposal of
a hazardous substance on the site, (3) transported a
hazardous substance to the site, or (4) contributed in
any other way to contaminate the site. Abbr. PRP.
See SUPERFUND.
potential Pareto superiority. See WEALTH MAXIMIZA
TION.
potentia propinqua (pJ-ten-shee-J prJ-ping-kwJ).
[Latin] Common possibility.
potestas (pJ-les-tJs or -tas), n. [Latin "power"] Roman
law. Authority or power, such as the power of a mag
istrate to enforce the law, or the authority of an owner
over a slave.
patria potestas (pay-tree-J or pa-tree-J). [Latin
"paternal power"] The authority held by the male
head ofa family (the senior ascendant male) over his
legitimate and adopted children, as well as further
descendants in the male line, unless emancipated.
 Initially, the father had extensive powers over
the family, including the power of life and death;
until Justinian's time, the father alone in his familia
had proprietary capacity but he could give a son or
slave a peculium. Over time, the broad nature of the
patria potestas gradually became more in the nature
of a responsibility to support and maintain family
members. But except in early Roman history, a wife
did not fall into her husband's power but remained in
her father's until she became sui juris by his death.
Also termed fatherly power.
"The power of the father continued ordinarily to the close
of his life, and included not only his own children, but
also the children of his sons, and those of his sons' sons,
if any such were born during his lifetime.... Originally
and for a long time the patria potestas had a terribly
despotic character. Not only was the father entitled to all
the service and all the acquisitions of his child, as much as
to those of a slave, but he had the same absolute control
over his person. He could inflict upon him any punishment
however severe .... Consider now that the patria potestas
had this character and extent down to the Christian era:
that, in general, every citizen of the republic who had a
living father was in this condition, unable to hold property,
unable to acquire any thing for himself, wholly dependent
on his father in property and person. . without help or
vindication from the law.... The reason which caused
the Romans to accept and uphold the patria potestas, to
maintain it with singular tenacity against the influence
of other systems with which they came in contact, must
have been the profound impression of family unity, the
conviction that every family was, and of right ought to be,
one body, with one will and one executive." James Hadley,
Introduction to Roman Law 119-21 (1881).
"Nature and Extent of Patria Potestas. From the most
remote ages the power ofa Roman father over his children,
including those by adoption as well as by blood, was unlim
ited. A father might, without violating any law, scourge
or imprison his son, or sell him for a slave, or put him to
death, even after that son had risen to the highest honours in the state. This jurisdiction was not merely nominal, but,
in early times, was not infrequently exercised to its full
extent, and was confirmed by the laws of the XII Tables....
By degrees the right of putting a child to death (ius vitae
et necis) fell into desuetude; and long before the close
of the republic, the execution of a son by order of his
father, although not forbidden by any positive statute, was
regarded as something strange, and, unless under extraor
dinary circumstances, monstrous. But the right continued
to exist in theory ... after the establishment of the empire.
[In the Christian empire, these extreme punishments were
forbidden and disciplinary powers were reduced to those
of reasonable chastisement. -Ed.]" William Ramsay, A
Manual of Roman Antiquities 291-92 (Rodolfo Lanciani
ed., 15th ed. 1894).
potestas gladii (pJ-tes-lJs [or -tas] glad-ee-I). [Latin
"the power of the sword"] Roman law. See JUS
GLADII.
potestas maritalis (pJ-tes-tJs [or -tas] mar-J-tay-lis).
[Latin] Hist. The marital power . In Roman law, this
was an institution, one that was decaying by the end
ofthe Republic.
potestative condition. See CONDITION (2).
pound, n. (12c) 1. A place where impounded property
is held until redeemed. 2. A place for the detention of
stray animals. [Cases: Animals C=> 103.] 3. A measure
of weight equal to 16 avoirdupois ounces or 7,000
grains. [Cases: Weights and Measures C=> 3.] 4. The
basic monetary unit of the United Kingdom, equal to
100 pence. A pound was worth 20 shillings until deci
malization in 1968. Also termed (in sense 4) pound
sterling.
poundage fee. (18c) A percentage commission awarded
to a sheriff for moneys recovered under judicial process,
such as execution or attachment. [Cases: Sheriffs and
Constables
pound-breach. Hist. The offense of breaking a pound
for the purpose of taking out something that has been
impounded.
pound ofland. (16c) An uncertain quantity ofland, usu.
thought to be about 52 acres.
pound sterling. See POUND (4).
pour acquit (poor a-kee), n. [French "for acquittance"]
French law. The formula that a creditor adds when
signing a receipt.
pour appuyer (poor a-poo-yay). [Law French] For the
support of; in the support of.
pour autrui (poor oh-troo-ee). [Law French] For others.
[Cases: Contracts C-=> 187.1
pour faire proclaimer (poor fair prJ-klay-mJr), n.
[Law French "for making a proclamation"] Hist. A
writ addressed to the mayor or bailiff of a city or town,
requiring that official to make a proclamation about
some matter, such as a nuisance.
pour out, vb. (1978) Slang. To deny (a claimant) damages
or relief in a lawsuit <the plaintiff was poured out of
court by the jury's verdict ofno liability>.
pourover trust. See TRUST.
pourover will. See WILL.

1288 pourparler
pourparler (poor-pahr-l;~r), vb. [French] To informally
discuss before actual negotiating begins. -pourpar
ler, n.
pourparty (poor-pahr-tee). [Law French] See PURPART.
pourpresture (poor-pres-char). [Law French] See PUR
PRESTURE.
pour seisir terres (poor SI-zar ter-eez). [Law French "for
seizing the lands"] Hist. A writ by which the Crown
could seize land that the wife of its deceased tenant,
who held in capite, had for her dower ifshe married
without leave.
poverty. 1. The condition ofbeing indigent; the scarcity
ofthe means ofsubsistence <war on poverty>. 2. Dearth
ofsomething desirable <a poverty ofideas>.
poverty affidavit. See AFFIDAVIT.
POW. abbr. PRISONER OF WAR.
Powell doctrine. See CORRUPT-MOTIVE DOCTRINE.
power. (13c) 1. The ability to act or not act; esp., a person's
capacity for acting in such a manner as to control
someone else's responses. 2. Dominance, control, or
influence over another; control over one's subordinates.
3. The legal right or authorization to act or not act; a
person's or organization's ability to alter, by an act of
will, the rights, duties, liabilities, or other legal relations
either of that person or ofanother.
';A power is the capacity to change a legal relationship.
In this terminology the off


either of that person or ofanother.
';A power is the capacity to change a legal relationship.
In this terminology the offeree has, before the contract
is made, a power to create a contract by means of accep
tance.' E. Allan Farnsworth, Contracts  3.4, at 114 n.3
(3d ed. 1999).
agent's power. The ability ofan agent or apparent agent
to act on behalf ofthe principal in matters connected
with the agency or apparent agency. [Cases: Principal
and Agent (;::::-49,91-126.]
concurrent power. (1812) A political power indepen
dently exercisable by both federal and state govern
ments in the same field oflegislation.
congressional power. The authority vested in the U.S.
Senate and House of Representatives to enact laws and
take other constitutionally permitted actions. U.S.
Canst. art. L [Cases; United States
delegated power. Power normally exercised by an
authority that has temporarily conferred the power
on a lower authority. [Cases: Powers (;::::-1.]
derivative power. Power that arises only from a grant
of authority. _ Power may be derived, for example,
by an agent from a principal, or by a head of state
from constitutional or statutory provisions. [Cases;
Powers
discretionary power. A power that a person may choose
to exercise or not, based on the person's judgment.
enumerated power. (1805) A political power specifically
delegated to a governmental branch by a constitu
tion. -Also termed express power. [Cases; Consti
tutional Law (;::::-635-639.]
fatherly power. See patria potestas under POTESTAS. implied power. (1807) A political power that is not
enumerated but that nonetheless exists because it is
needed to carry out an express power. [Cases: Admin
istrative Law and Procedure (;::::-325; Powers
incident power. (17c) A power that, although not
expressly granted, must exist because it is necessary
to the accomplishment of an express purpose. -Also
termed incidental power.
inherent power. (17c) A power that necessarily derives
from an office, position, or status.
institorial power (in-st<J-tor-ee-<JI). Civil law. The
power given by a business owner to an agent to act in
the owner's behalf.
investigatory power (in-ves-ta-ga-tor-ee). (usu. pl.)
The authority conferred on a governmental agency
to inspect and compel disclosure of facts germane
to an investigation. [Cases: Administrative Law and
Procedure C::;:)346.j
judicial power. See JUDICIAL POWER.
mediate powers. See MEDIATE POWERS.
naked power. (I8c) The power to exercise rights over
something (such as a trust) without having a corre
sponding interest in that thing. Cf. power coupled
with an interest.
particular power. See special power.
plenary power (plee-n<J-ree or plen-<J-ree). (16c) Power
that is broadly construed; esp., a court's power to
dispose of any matter properly before it. [Cases;
Courts 26, 30, 207.1.]
police power. See POLlCE POWER.
power coupled with an interest. (18c) A power to do
some act, conveyed along with an interest in the
subject matter of the power. - A power coupled with
an interest is not held for the benefit of the princi
pal, and it is irrevocable due to the agent's interest in
the subject property. For this reason, some authori
ties assert that it is not a true agency power. Also
termed power given as security; proprietary power.
See irrevocable power ofattorney under POWER OF
ATTORNEY. Cf. naked power. [Cases; Powers (;::::-27.]
"[S]uppose that the principal borrows money from the
agent and by way of security authorizes the agent to sell
Blackacre if the loan is not repaid and pay himself out of
the proceeds. In such case there is no more reason why
the prinCipal should be permitted to revoke than if he had
formally conveyed or mortgaged Blackacre to the agent.
Hence it would be highly unfair to the agent to allow his
principal to revoke. The reason why such a case is not
properly governed by the considerations usually making
an agency revocable is that this is in reality not a case of
agency at all. In a normal agency case the power is con
ferred upon the agent to enable him to do something for
the principal while here it is given to him to enable him to
do something for himself. Coupled with an interest means
that the agent must have a present interest in the property
upon which the power is to operate." Harold Gill Reuschlein
& William A. Gregory, The Law ofAgency and Partnership
 47, at 99 (1990).
power given as security. See power coupled with an
interest.

1289
power ofacceptance. An offeree's power to bind an
offeror to a contract by accepting the offer. [Cases:
Contracts 22(1).1
power ofrevocation (rev-<l-kay-sh<ln). (I7c) A power
that a person reserves in an instrument (such as a
trust) to revoke the legal relationship that the person
has created. [Cases: Contracts <8=>217; Powers
19; Trusts <8=>59.]
power ofsale. A power granted to sell the property that
the power relates to. _ The power's exercise is often
conditioned on the occurrence of a specific event,
such as the nonpayment of a debt. [Cases: Powers
<8=>20.]
power over oneself. See CAPACITY (2).
power over other persons. See AUTHORITY (1).
primary powers. See PRIMARY pm'lERS.
private power. A power vested in a person to be exer
cised for personal ends and not as an agent for the
state.
proprietary power. See power coupled with an interest.
public power. A power vested in a person as an agent
or instrument of the functions of the state. -Public
powers comprise the various forms of legislative,
judicial, and executive authority. [Cases: Officers and
Public Employees <8=> 103.]
quasi-judicial power. (152) An administrative agency's
power to adjudicate the rights of those who appear
before it. [Cases: Administrative Law and Procedure
<8=>108.]
quasi-legislative power. (1864) An administrative
agency's power to engage in rulemaking. 5 USCA
 553. [Cases: Administrative Law and Procedure
(;:)106, 385.]
reserved power. (1831) A political power that is not enu
merated or prohibited by a constitution, but instead
is reserved by the constitution for a specified politi
cal authority, such as a state government See TENTH
AMENDMENT.
restraining power. A power to restrict the acts of
others.
resulting power. A political power derived from the
aggregate powers expressly or impliedly granted by
a constitution.
special power. (18c) 1. An agent's limited authority to
perform only specific acts or to perform under specific
restrictions. Also termed particular power. [Cases:
Powers 19.] 2. See limited power ofappointment
under POWER OF APPOIKTMENT.
spendingpower. (1923) 1he power granted to a govern
mental body to spend public funds; esp., the congres
sional power to spend money for the payment ofdebt
and provision of the common defense and general
welfare ofthe United States. U.S. Const. art. 1,  8, el.
1. [Cases: United States G---=>82.]
taxing power. (18c) The power granted to a governmen
tal body to levy a tax; esp., the congressional power power
to levy and collect taxes as a means of effectuating
Congress's delegated powers. U.S. Const. art. I,  8,
d. 1. See SIXTEENTH AMENDMENT. [Cases: Internal
Revenue<:;:-~J3001-3008; [Cases: Taxation G'='2003
2007.]
trust power. See benefiCial power.
visitatorial power.lhe power to inspect or make deci
sions about an entity's operations. -Also termed
visitorial power.
4. A document granting legal authorization. See
AUTHORITY. 5. An authority to affect an estate in land
by (1) creating some estate independently ofany estate
that the holder ofthe authority possesses, (2) imposing
a charge on the estate, or (3) revoking an existing estate.
See POWER OF APPOINTMENT; PERMIT. [Cases: Powers
"The word 'power' is normally used in the sense of an
authority given to a person to dispose of property which
is not his. The person giving the power is called the donor
and the person to whom it is given the donee." Robert E.
Megarry & P.v. Baker, A Manual ofthe Law ofReal Property
253 (4th ed. 1969).
appendant power (d-pen-d;mt). (17c) 1. A power that
gives the donee a right to appoint estates that attach to
the donee's own interest. 2. A power held by a donee
who owns the property interest in the assets subject
to the power, and whose interest can be divested bv
the exercise ofthe power. -The appendant power i's
generally viewed as adding nothing to the owner
ship and thus is not now generally recognized as a
true power. -Also termed power appendant; power
appurtenant. [Cases: Powers (;:=>23.]
avoiding power. Bankruptcy. The power of a bank
ruptcy trustee or debtor in possession to void certain
transfers made or obligations incurred by a debtor,
including fraudulent conveyances, preferences trans
ferred to creditors, unperfected security interests
in personal property, and unrecorded mortgages.
11 USCA  544-53. [Cases: Bankruptcy (;:"2703,
2704.]
beneficial power. (18c) A power that is executed for
the benefit of the power's donee, as distinguished
from a trust power, which is executed for the benefit
ofsomeone other than the power's donee (Le., a trust
beneficiary). [Cases: Powers
collateral power. A power created when the donee
has no estate in the land, but simply the authority to
appoint. [Cases: Powers (;=>25.]
general power. See POWER OF APPOINTMENT.
limited power. See POWER OF APPOINTMENT.
mandatory power. A power that the donee must
exercise and must do so only as instructed, without
discretion.
power appendant. See appendant power.
power appurtenant. See appendant power.
power collateral. See power in gross.

1290 power-delegating law
power in gross. (18c) A power held by a donee who
has an interest in the assets subject to the power but
whose interest cannot be affected by the exercise of
the power. -An example is a life tenant with a power
over the remainder. -Also termed power collateral.
[Cases: Powers (;:::::>23.]
power ofappointment. See POWER OF APPOINTMENT.
relative power. A power that relates directly to land, as
distinguished from a collateral power.
testamentary power. See POWER OF APPOINTMENT.
6. Physical strength. 7. Moral or intellectual force. 8.
A person ofinfluence <a power in the community>. 9.
One ofthe great nations ofthe world <one ofthe world's
two great powers>. See PROTECTING POWER. 10. The
military or unit of it, such as a troop ofsoldiers.
power-delegating law. See LAW OF COMPETENCE.
power given as security. See power coupled with an
interest under POWER (3).
power ofalienation. (16c) The capacity to sell, transfer,
assign, or otherwise dispose ofproperty.
power of appointment. (18c) A power created or
reserved by a person having property subject to dis
position, enabling the donee ofthe power to designate
transferees ofthe property or shares in which it will be
received; esp., a power conferred on a donee by will or
deed to select and determine one or more recipients of
the donor's estate or income. -If the power is exercis
able before the donee's death, it is exercisable wholly
in favor of the donee. If the power is testamentary, it
is exercisable wholly in favor of the donee's estate.
Often shortened to power. Also termed enabling
power. [Cases: Powers (;:::::> 19; Wills (;:::::>589.]
general power of appointment. (l8c) A power of
appointment by which the donee can appoint
that is, dispose ofthe donor's property -in favor of
anyone at all, including oneself or one's own estate;
esp., a power that authorizes the alienation of a fee
to any alienee. -Often shortened to general power.
[Cases: Powers (;:::::> 19; Wills (;:::::>589.]
limited power ofappointment. (1830) A power of
appointment that either does not allow the entire
estate to be conveyed or restricts to whom the estate
may be conveyed; esp., a power by which the donee
can appoint to only the person or class specified in the
instrument creating the power, but cannot appoint
to oneself or one's own estate. -Often shortened
to limited power. Also termed special power of
appointment. [Cases: Powers (;:::::> 19; Wills C':::>589.]
special power ofappointment. See limited power of
appointment.
testamentary power ofappointment (tes-t;,-men-t;,
ree or -tree). (1858) A power of appointment created
by a will. Often shortened to testamentary power.
[Cases: Wills (;:::::>589.]
power-of-appointment trust. See TRUST. power of attorney. (18c) 1


>589.]
power-of-appointment trust. See TRUST. power of attorney. (18c) 1. An instrument granting
someone authority to act as agent or attorney-in-fact
for the grantor. -An ordinary power of attorney is
revocable and automatically terminates upon the death
or incapacity of the principal. Also termed letter
ofattorney; warrant ofattorney. See ATTORNEY (1).
[Cases: Principal and Agent ,,":=51.] 2. The authority
so granted; specif., the legal ability to produce a change
in legal relations by doing whatever acts are authorized.
PI. powers ofattorney.
durable power ofattorney. (1980) A power ofattorney
that remains in effect during the grantor's incompe
tency. -Such instruments commonly allow an agent
to make healthcare decisions for a patient who has
become incompetent. [Cases: Principal and Agent
general power ofattorney. (18c) A power of attorney
that authorizes an agent to transact business for the
principaL Cf. special power ofattorney. [Cases: Prin
cipal and Agent <8='97.]
irrevocable power ofattorney (i-rev-a-k;,-b;,l). (18c) A
power ofattorney that the principal cannot revoke.
Also termed power ofattorney coupled with an interest.
See power coupled with an interest under POWER (3).
[Cases: Principal and Agent
power ofattorney coupled with an interest. See irre
vocable power ofattorney.
power ofattorneyfor healthcare. See ADVANCE DIREC
TIVE (1).
special power ofattorney. (18c) A power of attorney
that limits the agent's authority to only a specified
matter. Cf. general power ofattorney.
springing power ofattorney. A power ofattorney that
becomes effective only when needed, at some future
date or upon some future occurrence, usu. upon
the principal's incapacity. -Also termed spring
ing durable power ofattorney. See durable power of
attorney; ADVANCE DIRECTIVE.
power ofrevocation (rev-.J-kay-sh;,n). See POWER (3).
power ofsale. See POWER (3).
power-of-sale clause. (1883) A provision in a mortgage or
deed oftrust permitting the mortgagee or trustee to sell
the property without court authority if the payments
are not made. [Cases: Mortgages C':::>21.j
power-of-sale foreclosure. See FORECLOSURE.
power oftermination. (1919) A future interest retained
by a grantor after conveying a fee simple subject to a
condition subsequent, so that the grantee's estate termi
nates (upon breach ofthe condition) only ifthe grantor
exercises the right to retake it. -Also termed right of
entry; right ofreentry; right ofentry for breach ofcondi
tion; right ofentry for condition broken. See fee simple
subject to a condition subsequent under FEE SIMPLE. Cf.
POSSIBILITY OF REVERTER. [Cases: Deeds l59.]
power over oneself. See CAPACITY (2).
power over other persons. See AUTHORITY (1).

1291 	 practice of law
power politics. Int'llaw. An approach to foreign policy
that encourages a nation to use its economic and
military strength to enlarge its own power as an end
in itself; a system in which a country is willing to bring
its economic and (esp.) military strength to bear in an
effort to increase its own power.
power to inspect. Patents. The authority ofa third party
to review a patent application . The power may be
given by the applicant or an assignee, often to a poten
tial buyer. It must specify which application the person
is authorized to see, and it becomes part of the record
of the application. See ACCESS (4), (5). [Cases: Patents
C=>97.]
p.p. abbr. 	1. PER PROCURATIONEM. 2. PROPRIA PER
SONA.
PPA. abbr. 1. See provisional application under PATENT
APPLICATION. 2. PLANT PATENT ACT.
PPI. abbr. POLICY PROOF OF INTEREST.
PPO. abbr. 1. PREFERRED-PROVIDER ORGANIZATION.
2. See permanent protective order under PROTECTIVE
ORDER.
p. pro. abbr. PER PROCURATIONEM.
p. proc. abbr. PER PROCURATIONEM.
PRo abbr. PUBLIC RELATIONS.
practicable, adj. (I6c) (Of a thing) reasonably capable of
being accomplished; feasible.
practicably irrigable acreage. Land that is susceptible
to prolonged irrigation, at reasonable cost.
practical construction. See contemporaneous construc
tion under CONSTRUCTION.
practical finality. The situation in which a court order
directs immediate delivery of physical property, sub
jecting the losing party to irreparable harm ifan imme
diate appeal were not possible . Practical finality
provides an exception to the usual rule that interlocu
tory orders are not appealable. See FINALITY DOCTRINE.
[Cases: Federal Courts (;::)572.1.]
practical interpretation. See contemporaneous construc
tion under CONSTRUCTION.
practically avoidable. See AVOIDABLE.
practice, n. (I5c) 1. The procedural methods and rules
used in a court oflaw <local practice requires that an
extra copy of each motion be filed with the clerk>. 2.
PRACTICE OF LAW <where is your practice?>. [Cases:
Patents (;::)90(5).]
practice, vb. Patents. 1. To make and use (a patented
invention) <the employer had a shop right to practice
the patent, but not to sell it>. 2. To build a physical
embodiment of an invention. See REDUCTION TO
PRACTICE.
practice act. (1881) A statute governing practice and
procedure in courts . Practice acts are usu. supple
mented with court rules such as the Federal Rules of
Civil Procedure. practice book. (1873) A volume devoted to the proce
dures in a particular court or category ofcourts, usu.
including court rules, court forms, and practice direc
tions.
practice court. 1. MOOT coeRT. 2. (cap.) BAIL COURT.
practice goodwill. See GOODWILL.
practice guide. A written explanation ofhow to proceed
in a particular area oflaw or in a particular court or
locality.
practice oflaw. (l7c) The professional work of a duly
licensed lawyer, encompassing a broad range ofservices
such as conducting cases in court, preparing papers
necessary to bring about various transactions from con
veying land to effecting corporate mergers, preparing
legal opinions on various points oflaw, drafting wills
and other estate-planning documents, and advising
clients on legal questions . The term also includes
activities that comparatively few lawyers engage in but
that require legal expertise, such as drafting legislation
and court rules. -Also termed legal practice. Cf. LAW
PRACTICE. [Cases: Attorney and Client (;::) 11.]
multidisciplinary practice o/law. See MULTIDISCI
PLINARY PRACTICE.
unauthorized practice o/law. (1928) The practice of
law by a person, typically a nonlawyer, who has not
been licensed or admitted to practice law in a given
jurisdiction. Abbr. UPL. [Cases: Attorney and
Client G--;:, Il.J
"The definitions and tests employed by courts to delineate
unauthorized practice by nonlawyers have been vague or
conclusory, while jurisdictions have differed significantly
in describing what constitutes unauthorized practice in
particular areas.
"Certain activities, such as the representation of another
person in litigation, are generally proscribed. Even in that
area, many jurisdictions recognize exceptions for such
matters as smallclaims and landlord-tenant tribunals and
certain proceedings in administrative agencies. Moreover,
many jurisdictions have authorized law students and
others not locally admitted to represent indigent persons
or others as part of clinical legal education programs.
"Controversy has surrounded many outof-court activities
such as advising on estate planning by bank trust officers,
advising on estate planning by insurance agents, stock
brokers, or benefitplan and similar consultants, filling out
or providing guidance on forms for property transactions
by real estate agents, title companies, and closingservice
companies, and selling books or individual forms contain
ing instructions on selfhelp legal services accompanied
by personal, non-lawyer assistance on filling them out
in connection with legal procedures such as obtaining
a marriage dissolution. The pOSition of bar associations
has traditionally been that nonlawyer provisions of such
services denies the person served the benefit of such legal
measures as the attorney-client privilege, the benefits of
such extraordinary duties as that of confidentiality of client
information and the protection against conflicts of interest,
and the protection of such measures as those regulating
lawyer trust accounts and requiring lawyers to supervise
non-lawyer personnel. Several jurisdictions recognize
that many such services can be provided by nonlawyers
without Significant risk of incompetent service, that actual
experience in several states with extensive nonlawyer pro
vision of traditional legal services indicates no significant
risk of harm to consumers of such services, that persons in

practicks 1292
need of legal services may be significantly aided in obtain
ing assistance at a much lower price than would be entailed
by segregating out a portion of a transaction to be handled
by a lawyer for a fee, and that many persons can ill afford,
and most persons are at least inconvenienced by, the typi
cally higher cost of lawyer services." Restatement (Third) of
the law Governing lawyers  4 cmt. c (1998).
practicks (prak-tiks). Hist. Scots law. (usu. pi.) An old
collection of notes about points of practice, decisions
ofthe Court ofSessions, statutes, and forms, compiled
by members of the court. An example is Balfour's
Practicks (1469-1579). A precursor oflaw reports, the
notes remain historical legal literature ofsome author
ity.
practitioner. (16c) A person engaged in the practice ofa
profession, esp. law or medicine.
praebentes causam mortis (pri-ben-teez kaw-z<lm mor
tis). [Latin] Hist. (Persons) occasioning the cause of
death.
praeceptio haereditatis (pri-sep-shee-oh h<l-red-i-tay
tis). [Law Latin] Scots law. A taking of the inheritance
in advance. -Also termed lucrative succession.
"Praeceptio haereditatis .... This is one of the passive
titles known in law, which, if incurred by the heir, renders
him in some measure liable for his ancestor's debts. It
was introduced to prevent an heir from receiving and
enjoying, under a gratuitous disposition inter vivos from
his ancestor, that heritable estate to which he would be
entitled to succeed on the ancestor's death, and of thus
avoiding responsibility for his ancestor's debts and other
obligations." John Trayner, Trayner's Latin Maxims 466-67
(4th ed. 1894).
praeceptores (pree-sep-tor-eez). [Law Latin "masters"]
Hist. The chief clerks of Chancery, responsible for pre
paring remedial writs.
praecipe (pree-s<l-pee or pres-<l-pee), n. [Latin
"command"] (ISc) 1. At common law, a writ ordering
a defendant to do some act or to explain why inaction
is appropriate. -Also termed writ ofpraecipe. 2. A
written motion or request seeking some court action,
esp. a trial setting or an entry of judgment. -Also
spelled precipe. -praecipe, vb.
praecipe quod reddat (pree-s<l-pee or preS-<l-pee kwod
red-at). [Latin "command that he render"] Hist. A writ
directing the defendant to return certain property .
An action for common recovery was often begun with
this writ. When the writ was brought to recover land,
it was termed ingressu. See COMMON RECOVERY.
"The praecipe quod reddat was the proper writ when
the plaintiff's action was for a specifick thing; as for the
recovery of a debt certain, or for the restoration of such
a Chattel, or for giving up such a house, or so much land,
specifying the nature and quantity of it. By this writ the
sheriff was commanded to summon the tenant or defen
dant to appear at Westminster; at such a day in term." 1
George Crompton, Rules and Cases ofPractice in the Courts
ofKing's Bench and Common Pleas xxxix (3d ed. 1787).
praecipitium (pree-s.}-pish-ee-<>m or pres-.}-), n. [Latin
"headlong fall"] Roman law. The punishment ofcasting
a criminal from the Tarpeian rock.
praecipuum (pri-sip-yoo-am), n. [Latin] Hist. The estate
portion that is not subject to rules of division; the part ofan estate that one claimant (usu. the eldest heir-por
tioner) receives to the exclusion ofall others.
praeco (pree-koh), n. [Latin] Roman law. A herald or
crier.
praedia (pree-dee-a), n. [Latin] The plural ofpraedium
(land; an estate). See PRAEDIUM.
praedia belUca (pree-dee-a bel-<l-k<l). [Latin] Property
seized in war; booty.
praedia stipendiaria (pree-dee-a str -pen -dee-air-ee-a).
[Latin] Provincial lands belonging to the res publicae;
the senatorial provinces.
praedia tributaria (pree-dee-<l trib-yoo-tair-ee-a).
[Latin] Provincial lands belonging to the emperor;
the imperial provinces.
praedial (pree-dee-<ll), adj. See PRE


to the emperor;
the imperial provinces.
praedial (pree-dee-<ll), adj. See PREDIAL.
praedial tithe. See predial tithe under TITHE.
praedictus (pri-dik-t<ls), adj. [Law Latin] Hist. Aforesaid.
 In pleading, praedictus usu. referred to a defendant,
a town, or lands, idem to a plaintiff, and praefatus to a
person other than a party. Cf. PRAEFATUS.
praedium (pree-dee-.}m), n. [Latin] Roman law. Land;
an estate. PI. praedia.
praedium dominans (pree-dee-<lm dom-;:l-nanz).
[Latin] A dominant estate; an estate benefiting from
a servitude. See SERVITUDE. Cf. dominant estate under
ESTATE (4).
praedium rusticum (pree-dee-;:lm r;)s-ti-k;)m). [Latin]
An estate used for agricultural purposes. Cf. rural
servitude under SERVITUDE (2).
praedium serviens (pree-dee-am s<lr-vee-enz). [Latin]
An estate burdened by a servitude; a servient estate.
See SERVITUDE. Cf. servient estate under ESTATE (4).
praedium urbanum (pree-dee-am ar-bay-n.}m). [Latin]
An estate used for business or for dwelling; any estate
other than apraedium rusticum. See urban servitude
(2) under SERVITUDE (2).
praedo (pree-doh), n. [Latin] Roman law. A robber. PI.
praedones.
praefatus (pri-fay-t<ls), adj. [Latin] Aforesaid. Abbr.
praefat; p. fat. Cf. PRAEDICTUS.
praefectura (pri-fek-char-<l), n. [Latin] Roman law. 1.
The office of prefect. 2. A town or territory adminis
tered by a prefect.
praefectus urbi (pri-fek-t<ls ar-bI). [Latin "prefect of the
city"] Roman law. A senator charged with keeping law
and order in the city of Rome. This duty originated
in the early Empire. The praefectus had both criminal
and civil jurisdiction; the latter was gradually taken
over from the praetor, although the praefectus's civil
jurisdiction was always cognitio. -Also termed urban
prefect; prefect ofthe city.
"Praefectus urbi. The prefect of the city was originally a
mere delegate appointed in case of the temporary absence
of the emperor, but the office became a permanency owing
to Tiberius' continued residence away from Rome in the
latter part of his reign, and under subsequent emperors

1293 praescriptis verbis
the prefect remained in office even when the emperor was
present, His duties included generally the maintenance
of order in the city, and he had under his command the
urban cohorts, in effect a police force numbering between
4,000 and 6,000 men, He early assumed criminal jurisdic
tion, and in the end became the chief criminal court not
only for Rome but for the district within 100 miles," H,F,
Jolowicz, Historical Introduction to the Study ofRoman Law
345~46 (1952),
praefectus vigilum (pri~fek-t<'ls vi-jil-<'lm). [Latin "prefect
ofthe watch "] Roman law, An officer, immediately sub
ordinate to the praefectus urbi, with police and fire
prevention duties . This officer had the authority to
punish offenses relating to the public peace. See PRAE
FECTUS URBI.
praefectus villae (pri-fek-t<'ls vil-ee). [Latin] Hist. The
mayor of a town.
praefine (pree-fm). See PRIMER FINE.
praejuramentum (pree-juur-<'l-men-tam), n. [Law Latin)
Hist. A preparatory oath.
praelegatum (pree-Id-gay-tam), n. [Latin] Roman law. A
legacy to one of several heirs whereby the legatee was
entitled to the legacy before the estate was divided .
This was similar to an advancement.
praelibatio matrimonii (pree-h-bay-shee-oh ma-tr<)
moh-nee-I). [Law Latin] His!. A foretaste of marriage.
praematura diligentia (pree-m<'l-t[y]uur-<'l [or -chuur
<'lj dil-a-jen-shee-<'l). [Law Latin] Scots law. Premature
execution of a judgment.
praemium emancipation is (pree-mee-am i-man-sa
pay-shee-oh-nis). [Latin "reward for emancipation"]
Roman law. A compensation allowed by Constantine
to a father on the emancipation ofhis child, consisting
of one-third ofthe property that came to the child from
his mother's side . Justinian replaced this with the
usufruct of half the child's separate property.
praemium pudicitiae (pree-mee-<}m pyoo-da-sish-ee-ee.
[Latin "the price of chastity"] Hist. Compensation
paid by a man who seduced a chaste woman. -Also
written premium pudicitiae. Also termed praemium
pudoris.
praemunire (pree-myoo-nI-ree), n. [Latin praemon
eri "to be forewarned"] Hist. The criminal offense of
obeying an authority other than the king . Praemu
nire stems from the efforts ofEdward I (1272-1307) to
counter papal influence in England, and takes its name
from the writ's initial words: praemunire facias ("that
you cause to be forewarned"). One type ofpraemunire
was to appeal to the pope rather than the monarch.
Another was to bring a suit in a temporal court instead
of a royal court, in part because the monarch wanted
all fines levied as punishment to go to the royal coffers,
not those ofthe church.
praenomen (pree-noh-man), n. [Latin] Roman law. The
first ofa person's three names, given to distinguish the
person from family members.
praeposita negotiis vel rebus domesticis (pri-poz-a-ta Set over domestic affairs. -The phrase usu. referred to
a wife's status.
praepositor (pri-poz-a-tar or -tor), n. [Law Latin "super
visor, reeve"] Hist. One who delegates duties (esp. of
a business's management) to another; one who places
(another) in a position over others.
praepositura (pri-poz-a-t[y]uur-a), n. [Latin "manage
ment" or "supervisory office"] Hist. 1. One to whom
management duties are delegated. 2. The area of
responsibility delegated to a person to manage, esp. a
wife's authority to manage the household.
praepositus (pree-poz-i'l-tas), n. [Latin] Hist. 1. An officer
next in authority to the alderman of a hundred. 2. A
steward or bailiffofan estate.
praepositus negotiis (pri-poz-a-tas ni-goh-shee-is).
[Latin] Hist. Put in charge ofanother's business.
praepositus negotiis societatis (pri-poz-a-tas ni-goh
shee-is sa-sI-a-tay-tis). [Latin] Hist. Put in charge of a
partnership's business.
praepositus villae (pree-poz-a-tas vil-ee). [Latin] Hist.
A constable ofa town; a petty constable.
praerogativa regis (pree-rog-a-tI-va ree-jis). [Law Latin
"of the Crown's prerogative"] Hist. A declaration made
at the time of Edward I (1272-1307) defining certain
feudal and political rights ofthe Crown, including the
right to wardship ofan idiot's lands to protect the idiot's
heirs from disinheritance or alienation. Also termed
de praerogativa regiS (dee pree-rog-a-tI-va ree-jis).
"The king's right is distinctly stated in the document known
as praerogativa Regis, which we believe to come from the
early years of Edward I. The same document seems to
be the oldest that gives us any clear information about a
wardship of lunatics. The king is to provide that the lunatic
and his family are properly maintained out of the income
of his estate, and the residue is to be handed over to him
upon his restoration to sanity, or, should he die without
having recovered his wits, is to be administered by the
ordinary for the good of his soul; but the king is to take
nothing to his own use." 1 Frederick Pollock & Frederic W.
Maitland, The History of English Law Before the Time of
Edward /481 (2d ed. 1898),
praescriptio (pri-skrip-shee-oh), n. [Latin] Roman law.
1. A preliminary portion of aformula that defines the
scope of action. 2. A defensive plea in an action to
recover land by which the defendant asserts owner
ship based on continuous possession for a prescribed
time. -Also termed (in sense 2) praescriptio longi
temporis. Pi. praescriptiones (pri-skrip-shee-oh
neez).
praescriptio fori (pri-skrip-shee-oh for-I). [Latin] Roman
law. An objection on the ground that the person object
ing is not subject to the court's jurisdiction.
praescriptis verbis (pri-skrip-tis vi'lr-bis). [Latin "in
the words before written"] 1. Roman law. An action
on a bilateral agreement under which one party
had performed and required the other to perform
in turn. 2. Roman law. The grounds given for the
existence of a contract that falls into the class later
described as innominate . Innominate contracts
ni-goh-shee-is vel ree-bds da-mes-ti-sis). [Latin] Hist. I were developed and recognized late in classical law.

praeses 1294
See innominate contract under CONTRACT. 3. Hist. (Of
a clause) restricted in scope by introductory words
esp., in a pleading, words defining the issue.
praeses (pree-seez), n. lLatin]1. Roman law. A governor
of a province. 2. The president of a college or univer
sity.
praestare (pree-stair-ee), vb. [Latin] Roman law. 1. To
perform an obligation. 2. To undertake liability.
praestatio culpae levis (pri-stay-shee-oh k~l-pee lee-vis).
[Law Latin] Hist. An obligation for the middle degree
of diligence -that is, the diligence and care required
by a person of ordinary prudence. This phrase was
a forerunner ofthe modern terms reasonable care and
reasonable person.
praesumitur pro negante (pri-zyoo-md-tdr proh ni-gan
tee). [Latin] It is presumed for the negative. This is
the rule ofthe House ofLords when the votes are equal
on amotion.
praesumptio (pri-zamp-shee-oh), n. [Latin] A presump
tion. PL praesumptiones (pri-zamp-shee-oh-neez).
praesumptio fortior (pri-zamp-shee-oh for-shee-Jr
or -or). [Latin] A strong presumption (of fact); a pre
sumption strong enough to shift the burden of proof
to the opposing party.
praesumptio hominis (pri -zamp-shee-oh hom-a-nis).
[Latin] The presumption of an individual; that is, a
natural presumption unfettered by rules.
praesumptio juris (pri-z~mp-shee-oh joor-is). [Latin]
A presumption of law; that is, one in which the law
assumes the existence of something until it is dis
proved. See presumption oflaw and rebuttable pre
sumption under PRESUMPTION.
praesumptio Muciana (pri-z;lmp-shee-oh myoo
shee-ay-n<3). [Latin] Roman law. 1he rebuttable pre
sumption that in case of doubt a thing possessed
by a married woman had been given to her by her
husband. The presumption was named after the
jurist Quintus Mucius.
praeter dotem (pree-t<3r doh-t<3m or -tern). [Latin] Hist.
Over and above the dowry.
praeteritio (pree-t<3- or pret-d-rish-ee-oh), n. [Latin]
Roman law. A testator's exclusion ofan heir by passing
the heir over. _ In Roman law, passing over sui heredes
usu. invalidated the will. See SUI HEREDES.
praeter legem. See EQUITY PRAETER LEGEM.
praetor (pree-tdr), n. [Latin] Roman law. The magistrate
responsible for identifying and framing the legal issues
in a case and for ordering a lay judge (judex) to hear
evidence and decide the case in accordance with the
formula. See FORMULA (l).
praetorfideicommissarius (pree-tar fI-dee-I-kom-d
sair-ee-as). A special praetor having jurisdiction over
cases involving trusts.
praetorian edict. See edictum praetoris under
EDICTUM. praevaricatio (pri-var-a-kay-shee-oh), n. [Latin "collu
sion with an opponent"] Roman law. An accuser's col
luding with the defense in such a way that the accused
will be acquitted. _ An accuser might do this in various
ways, as by deemphasizing the most important charges,
refraining from calling the


_ An accuser might do this in various
ways, as by deemphasizing the most important charges,
refraining from calling the most important witnesses,
or refraining from exercising peremptory challenges
against jurors who would tend to favor the accused.
See CALUMNIA. Cf. TERGIVERSATIO.
praevaricator (pree-var-a-kay-t.u). See PREVARICA
TOR.
praevento termino (pri-ven-toh tar-ma-noh). (Law Latin
"by anticipating the term"] Scots law. An action in the
Court of Session to prevent a delay in a suspension or
an appeal. See SUSPENSION (6).
pratique (pra-teek or prat-ik). Maritime law. A license
allowing a vessel to trade in a particular country or
port after complying with quarantine requirements or
presenting a clean bill ofhealth.
praxis (prak-sis). [Greek "doing; action"] (1933) In
critical legal studies, practical action; the practice of
living the ethical life in conjunction and in coopera
tion with others.
prayer conference. See CHARGE CONFERENCE.
prayer for relief. (18c) A request addressed to the court
and appearing at the end of a pleading; esp., a request
for specific relief or damages. -Often shortened to
prayer. -Also termed demand for relief; request for
relief See AD DAMNUM CLAUSE. [Cases: Federal Civil
Procedure (::=>680; Pleading (::=>72.]
'The prayer for relief. The plaintiff prays in his bill for the
relief to which he supposes himself entitled on the case
made out in the bill. This is called the special prayer. He
then prays for general relief, usually in these words: 'And
the plaintiff (oryour orator) prays for such further or other
relief as the nature of the case may require, and as may be
agreeable to equity and good conscience.' Both prayers are
generally inserted in the bill, the special prayer first, the
general following." Edwin E. Bryant, The Law of Pleading
Under the Codes ofCivil Procedure 69 (2d ed. 1899).
general prayer. (18c) A prayer for additional unspecified
relief, traditionally using language such as, "Plaintiff
additionally prays for such other and further relief to
which she may show herself to be justly entitled."
The general prayer typically follows a special prayer.
[Cases: Federal Civil Procedure (::=>2585; Judgment
(::=>252; Pleading (::=>72.]
special prayer. (18c) A prayer for the particular relief
to which a plaintiff claims to be entitled. [Cases:
Judgment (::=>252; Pleading (::=>72.J
prayer in aid. See AID PRAYER.
prayer of process. (18c) A conclusion in a bill in equity
requesting the issuance ofa subpoena ifthe defendant
fails to answer the bill. [Cases: EquityG':::> 139.]
PRe. abbr. POSTAL RATE COMMISSION.
preamble (pree-am-bal), n. (14c) 1. An introductory
statement in a constitution, statute, or other document
explaining the document's basis and objective; esp., a

1295
statutory recital of the inconveniences for which the
statute is designed to provide a remedy . A preamble
often consists of a series of clauses introduced by the
conjunction whereas. Such a preamble is sometimes
called the whereas clauses. [Cases: Statutes C;;>21O.j
"The preamble cannot control the enacting part of the
statute, in cases where the enacting part is expressed in
clear, unambiguous terms; but in case any doubt arises
on the enacting part, the preamble may be resorted to to
explain it, and show the intention of the law maker." Den
v. Urison, 2 N.Jl. 212 (1807).
2. Patents. The first words of a patent claim, often a
single phrase indicating the field ofart.  The preamble
is typically nonlimiting unless it "breathes life and
meaning into the claims." Corning Glass Works v.
Sumitomo Elec. U.S.A., Inc., 868 F.2d 1251, 1257 (Fed.
Cir. 1989). Elements, the later parts ofthe claim, narrow
this broad identification more and more specifically. Cf.
BODY OF A CLAIM; TRANSITION PHRASE. [Cases: Patents
\.~:)165(4).) -preambulary (pree-am-bY;:l-ler-ee), pre
ambular (pree-am-bY;:l-I;:lr), adj.
preappointed evidence. See EVIDENCE.
preargument-conference attorney. See CIRCUIT
MEDIATOR.
preaudience. English law. The right ofa senior barrister
to be heard in court before other barristers.
prebankruptcy, adj. Occurring before the filing of a
bankruptcy petition <prebankruptcy transactions>.
prebend (preb-;md), n. 1. A stipend granted in a cathedral
church for the support ofthe members ofthe chapter. 2.
The property from which the stipend comes.
prebendary (preb-;:ln-der-ee). A person serving on the
staff of a cathedral who receives a stipend from the
cathedral's endowment.
prebut (pree-b<lt), vb. Slang. To rebut an argument in
advance ofan opponent's making it.; to engage in antic
ipatory refutation.
precariae (pri-kair-ee-ee). [Law Latin "favors"] Hist. Day
labor that tenants ofcertain manors were bound to give
their lords at harvest time. Also termed preces.
precarious, adj. (l7c) Dependent on the will or pleasure
ofanother; uncertain.
precarious loan. See tOANo
precarious possession. See POSSESSION.
precarious right. See RIGHT.
precarious trade. See TRADE.
precarium (pri-kair-ee-;:Jm), n. [Latin]!. Roman law. The
gratuitous grant of the enjoyment of property, revo
cable at will. 2. The property so granted. 3. Rist. An
estate or tenure arising from a precarious grant, and
usu. characterized by uncertainty or arduous condi
tions of tenure.
precatory (prek-;:l-tor-ee), adj. (17c) (Of words) request
ing, recommending, or expressing a desire for action,
but usu. in a nonbinding way . An example of precaprecedent
tory language is "it is my wish and desire to ...." [Cases:
Trusts (;::::>29; Wills (;=.:)467.)
precatory trust. See TRUST.
precautionary appeal. See protective appeal under
APPEAL.
precedence (pres-;:l-d;:lnts or pr;:J-seed-;:mts), n. (16c) 1.
The order or priority in place or time observed by or for
persons ofdifferent statuses (such as political dignitar
ies) on the basis of rank during ceremonial events. 2.
Generally, the act or state ofgoing before something else
according to some system of priorities. 3. Parliamen
tary law. The ranked priority that determines whether a
motion is in order while another motion is pending, or
whether a pending motion yields to another motion.
"There is a principle that determines the precedence of
motions. The closer a motion is to final disposition of the
matter under consideration, the lower it is in the order of
precedence. The further removed the motion is from final
disposition of the matter, the higher it is in the order of
precedence." National Conference of State Legislatures,
Mason's Manual ofLegislative Procedure 6 (2000).
4. Parliamentary law. The priority in which a member
is entitled to the floor. -Also termed precedence in
recognition; preference in being recognized. 5. The order
in which persons may claim the right to administer an
intestate's estate . The traditional order is (1) surviv
ing spouse, (2) next ofkin, (3) creditors, and (4) public
administrator. [Cases: Executors and Administrators
precedent (pr;:l-seed-<lnt also pres-;:l-d;:lnt), adj. (14c) Pre
ceding in time or order <condition precedent>.
precedent (pres-;:J-d;:Jnt), n. (16c) 1. 'The making oflaw
by a court in recognizing and applying new rules
while administering justice. [Cases: Courts (':::J87.) 2.
A decided case that furnishes a basis for determining
later cases involving similar facts or issues. See STARE
DECISIS. [Cases: Courts C:::J88.J precedential, adj.
"In law a precedent is an adjudged case or decision of a
court ofjustice, considered as furnishing a rule or author
ity for the determination of an identical or similar case
afterwards arising, or of a similar question of law. The
only theory on which it is possible for one decision to be
an authority for another is that the facts are alike, or, if
the facts are different, that the prinCiple which governed
the first case is applicable to the variant facts." William
M. Ule et aI., Brief Making and the Use of Law Books 288
(3d ed. 1914).
"A precedent ... is a judicial decision which contains in
itself a principle. The underlying principle which thus
forms its authoritative element is often termed the ratio
decidendi. The concrete deCision is binding between the
parties to it, but it is the abstract ratio decidendi which
alone has the force of law as regards the world at large."
John Salmond, Jurisprudence 191 (Glanville L. Williams ed.,
10th ed. 1947).
"One may say, roughly, that a case becomes a precedent
only for such a general rule as is necessary to the actual
deCision reached, when shorn of unessential circum
stances." 1 James Parker Hall, Introduction, American Law
and Procedure xlviii (1952).
"One may often accord respect to a precedent not by
embracing it with a frozen logic but by drawing from its
thought the elements of a new pattern of decision." Lon L
Fuller, Anatomy of the Law 151 (1968).

1296 prece partium
binding precedent. (I7c) A precedent that a court must
follow . For example, a lower court is bound by an
applicable holding of a higher court in the same
jurisdiction. -Also termed authoritative precedent;
binding authority. Cf. imperative authority under
AUTHORITY (4). [Cases: CourtsC--:::>88, 107.)
declaratory precedent. (1900) A precedent that is
merely the application of an already existing legal
rule.
original precedent. (17c) A precedent that creates and
applies a new legal rule.
persuasive precedent. (1905) A precedent that is not
binding on a court, but that is entitled to respect and
careful consideration . For example, ifthe case was
decided in a neighboring jurisdiction, the court might
evaluate the earlier court's reasoning without being
bound to decide the same way. [Cases: Courts (;:::>
88.]
precedent sub silentio (s;:lb s;:l-len-shee-oh). (1825) A
legal question that was neither argued nor explicitly
discussed in a judicial decision but that seems to have
been silently ruled on and might therefore be treated
as a precedent.
superprecedent. 1. A precedent that defines the law and
its requirements so effectively that it prevents diver
gent holdings in later legal decisions on similar facts
or induces disputants to settle their claims without
litigation . This sense was posited by W. Landes and
Richard Posner in Legal Precedent: A Theoretical and
Empirical Analysis, 191. Law & Econ. 249, 251 (1976).
2. A precedent that has become so established in the
law by a long line of reaffirmations that it is very dif
ficult to overturn it; specif., a precedent that has been
reaffirmed many times and whose rationale has been
extended to cover cases in which the facts are dissimi
lar, even wholly unrelated, to those ofthe precedent.
 For example, Roe v. Wade has been called a super
precedent because it has survived more than three
dozen attempts to overturn it and has been relied on
in decisions protecting gay rights and the right to die.
Cf. super stare decisis under STARE DECISIS.
3. DOCTRINE OF PRECEDENT. 4. A form of pleading or
property-conveyancing instrument.  Precedents are
often compiled in book form and used by lawyers as
guides for preparing similar documents.
"Collections of Precedents have existed from very early
times. In this connection precedents must not be confused
with judicial precedents or case law. We refer here simply
to common-form instruments compiled for use in practice,
whereby the lawyer can be more or less certain that he
is using the correct phraseology for the particular case
before him. They were used both in conveyancing and liti
gation.... It is interesting to note that these precedents
were apparently among the first legal works to be pub
lished after printing was introduced. Collections of convey
ancing precedents continued to be brought up to date or
new volumes issued ...." A.K.R. Kiralfy, Potter's Outlines
ofEnglish Legal History 42-43 (5th ed. 1958).
precepartium (pree-see pahr-sbee-3m). [Law Latin) On
the prayer ofthe parties. precept (pree-sept). (14c) 1. A standard or rule ofconduct;
a command or principle <several legal precepts govern
here>. [Cases: Courts (;:::>87-100.J 2. A writ or warrant
issued by an authorized person demanding another's
action, such as a judge's order to an officer to bring a
party before the court <the sheriff executed the precept
immediately>.
preceptive statute. See STATUTE.