(sickness
ofbed)"] Hist. A writ ordering a determination whether
a person is truly sick after the person has issued an
essoin claiming sickness as an excuse for not appear
ing in court.
de estoveriis habendis (dee es-t<)-veer-ee-is h<)-ben
dis), n. [Law Latin "for haVing estovers"] Hist. A writ
allowing a wife divorced a mensa et thoro ("from bed
and board") to recover alimony or estovers. -Often
shorted to estoveriis habendis.
"In case of divorce a mensa et thoro, the law allows alimony
to the wife which is that allowance, which is made to a
woman for her support out of her husband's estate; being
settled at the discretion of the ecclesiastical judge, on
consideration of all the circumstances of the case. This
is sometimes called her estovers for which, if he refuses
payment, there is; (besides the ordinary process of excom
munication) a writ at common law de estoveriis habendis,
in order to recover it .... It is generally proportioned to
the rank and quality of the parties. But in case of elope
ment, and living with an adulterer, the law allows her no
alimony." 1 William Blackstone, Commentaries on the Laws
of England 429 (1765).
de estrepamento (dee e-strep-;)-men-toh), n. [Law
Latin "of enstrepment"] Hist. A writ to prevent waste
by a tenant while a suit to recover the land is pending
against the tenant.  Because this writ was only auxil
iary to a real action to recover land, and because equity
afforded the same relief by injunction, the writ fell into
disuse and was abolished by 3 & 4 Will. 4, ch. 27.
Also termed writ ofestrepement. See ESTREPEMENT.
de eu et trene (d;) yoo ay trayn). [French] Hist. Of water
and whip ofthree cords . This term referred to a neife
who, as a servant, could be corporally punished. See
NEIPE.
de eve et de treve (d;) ev ay d;) trev). [Law French] Hist.
From grandfather and great-grandfather's great-grand
father. This phrase described the ancestral rights of
lords to their villeins.
de excommunicato capiendo (dee eks-k;)-myoo-ni
kay-toh kap-ee-en-doh), n. [Law Latin "for taking an
excommunicated person"] Hist. Eccles. law. A writ
ordering a sheriff to imprison an excommunicated
person until the person reconciled with the church .

479
It was replaced by the writ de contumace capiendo. See
DE CONTUMACE CAPIE:-mo.
de excommunicato deliberando (dee eks-b-myoo-ni
kay-toh di-lib-;)-ran-doh), n. [Law Latin "for delivering
an excommunicated person"] Hist. Eccles. law. A writ
releasing an excommunicated person from prison upon
a certification by the person's superior that the person
has reconciled with the church.
de excommunicato recapiendo (dee eks-k;)-myoo-ni
kay-toh ri-kap-ee-en-doh), n. [Law Latin "for retaking
an excommunicated person"] Hist. Eccles. law. A writ
ordering the rearrest of an excommunicated person
who had been released but had not reconciled with the
church or given security for a reconciliation.
de excusationibus (dee ek-skyoo-zay-shee-oh-ni-b;Js).
[Latin "of excuses"] Roman law. The first title of the
27th book of the Digest, containing a person's legal
excuses from serving as tutor or curator .  It is pri
marily drawn from the Greek work ofHerennius Mod
estinus. See DIGEST (2).
de executione facienda in withernamium (dee ek-s;l
kyoo-shee-oh-nee fay-shee-en-d;l in with-;lr-nay
mee-;Jm), n. [Law Latin "for making execution in
withernam"] Hist. A writ ofexecution in withernam .
This is a type ofcapis in withernam directing the sheriff
to take from the defendant goods equal in value to the
goods that the defendant took from the plaintiff.
de executione judicii (dee ek-s;l-kyoo-shee-oh-nee joo
dish-ee-l), n. [Law Latin "of execution of judgment"]
Hist. A writ ordering a sheriff or bailiff to execute a
judgment.
de exemplificatione (dee ig-zem -pli -fi-kay-shee-oh -nee),
n. [Law Latin "of exemplification"] A writ ordering the
transcription ofan original record.
de exoneratione sectae (dee ig-zon-a-ray-shee-oh-nee
sek-tee), n. [Law Latin "of exoneration of suit"] Hist. A
writ exempting the king's ward from being sued in any
court lower than the Court of Common Pleas (such as
a county court, hundred court, leet, or court baron)
during the time of the wardship.
de expensis civium et burgensium (dee ek-spen-sis siv
ee-am et b;Jr-jen-see-am), n. [Law Latin "for levying
the expenses of burgesses"] Hist. A writ ordering the
sheriff to levy the expenses ofeach citizen and burgess
of Parliament.
de expensis militum levan dis (dee ek-spen-sis mil-;)- tam
l;l-van-dis), n. [Law Latin "for levying the expenses of
knights"] Hist. A writ ordering the sheriff to levy an
allowance for knights of the shire in Parliament.
deface (di-fays), vb. (14c) 1. To mar or destroy (a written
instrument, signature, or inscription) by obliteration,
erasure, or superinscription. 2. To detract from the
value of (a coin) by punching, clipping, cutting, or
shaving. 3. To mar or injure (a building, monument,
or other structure). defacement, n.
defacere. See DIFFACERE. defamation
de facto (di fak-toh also dee or day), adj. [Law Latin "in
point of fact"] (17c) 1. Actual; existing in fact; having
effect even though not formally or legally recognized
<a de facto contract> 2. Illegitimate but in effect <a de
facto government>. Cf. DE JURE.
de facto adoption. See ADOPTION.
de facto blockade. See BLOCKADE.
de facto contract ofsale. See CONTRACT.
I de facto corporation. See CORPORATION.
de facto court. See COURT.
de facto dissolution. See DISSOLUTION.
de facto father. See de facto parent under PARENT.
de facto government. See GOVER):!MENT.
de facto judge. See JUDGE.
de facto marriage. See MARRIAGE (1).
de facto merger. See MERGER.
de facto mother. See de facto parent under PARENT.
de facto officer. See officer de facto under OFFICER (1).
de facto parent. See PARENT.
de facto segregation. See SEGREGATION.
de facto stepparent adoption. See second-parent
adoption under ADOPTIO):!.
de facto taking. See TAKING (2).
defalcation (dee-fal-kay-shan), n. (15c) 1. EMBEZZLE
MENT. 2. Loosely, the failure to meet an obligation;
a nonfraudulent default. 3. Archaic. A deduction; a
setoff. -defalcate (di-fal-kayt or dee-), vb. -defal
cator, n.
defalk (di-fawlk), vb. Archaic. To deduct (a debt); to set
off (a claim).
de falso judicio (dee fal-soh or fawl-soh joo-dish-ee-oh),
n. [Law Latin "of false judgment"] Hist. A writ of false
judgment; a writ to reverse an inferior court's ruling.
de falso moneta (dee fal-soh or fawl-soh mah-nee-ta),
n. [Law Latin "of false money"1 Hist. The statute of
Edward I providing that persons importing certain
coins (called "pollards" and crokards") would forfeit
both their goods and their lives.
defamacast (di-fam-a-kast). (1997) Defamation by tele
vision or radio broadcast . The word was first used
in American Broadcasting-Paramount Theatres, Inc.
v. Simpson, 126 S.E.2d 873, 879 (Ga. Ct. App. 1962).
Although Prosser called it "a barbarous word" (William
Prosser, The Law ofTorts 753 [4th ed. 1971]), another
authority has said'that "[t1he word seems to be quite
apt" (Laurence H. Eldredge, The Law ofDefamation
 12, at 77 [1978]). See DEFAMATION.
defamation, n. (14c) 1. The act of harming the reputa
tion of another by making a false statement to a third
person . Ifthe alleged defamation involves a matter of
public concern, the plaintiff is constitutionally required
to prove both the statement's falsity and the defen
dant's fault. 2. A false written or oral statement that
damages another's reputation. See LIBEL; SLANDER. Cf.

480 defamation privilege
DISPARAGEMENT. [Cases: Libel and Slander ~1]
defame, vb.
"Defamation is the publication of a statement which
tends to lower a person in the estimation of rightthinking
members of society generally; or which tends to make
them shun or avoid that person." P.H. Winfield, A Textbook
of the Law of Tort  72, at 242 (5th ed. 1950).
"The wrong of defamation consists in the publication of a
false and defamatory statement concerning another person
without lawful justification. That person must be in being.
Hence not only does an action of defamation not survive
for or against the estate of a deceased person, but a state
ment about a deceased or unborn person is not actionable
at the suit of his relatives, however great their pain and
distress, unless the statement is in some way defamatory
ofthem." R.F.V. Heuston, Salmond on the Law ofTorts 138
(17th ed. 1977).
"For entirely too long a period of time, English and
American law have recognized two distinct kinds of defa
mation based solely on the form in which it is published.
Oral defamation is slander; written defamation is libel.
Libel is a crime and a tort which subjects the defamer to
tort liability without proof of special damages. Slander is
not a common law crime and, with certain exceptions, does
not subject the defamer to liability unless there is proof of
special damages. Under this distinction in form alone the
defamatory letter read only by its addressee and burned to
ashes after being read is a more serious defamation than
a defamatory statement spoken to an audience of 3,000
community leaders and molders of public opinion. This is
utterly absurd and completely indefensible ...." Laurence
H. Eldredge, The Law ofDefamation  12, at 77 (1978).
"Defamation ... is involved in two related harms, libel and
slander. A familiar statement is that libel is written whereas
slander is oral. This covers the idea in a general way but
tends to mislead because defamation may be published
without the use of words and hence be neither written nor
oral. Thus libel may be perpetrated by hanging a person in
effigy and slander, by sign or gesture." Rollin M. Perkins &
Ronald N. Boyce, Criminal Law489 (3d ed. 1982).
defamation per quod. (1915) Defamation that either
(1) is not apparent but is proved by extrinsic evidence
showing its injurious meaning or (2) is apparent but is
not a statement that is actionable per se. [Cases: Libel
and Slander ~33.]
defamation per se. (1928) A statement that is defama
tory in and ofitself and is not capable ofan innocent
meaning. [Cases: Libel and Slander ~33.]
trade defamation. The damaging of a business by a
false statement that tends to diminish the reputation
of that business. Trade defamation may be trade
libel if it is recorded, or trade slander if it is not.
Also termed commercial defamation. Cf. TRADE DIS
PARAGEMENT. [Cases: Libel and Slander ~130.]
defamation privilege. See litigation privilege under
PRIVILEGE (1).
defamatory, adj. (16c) (Of a statement or communica
tion) tending to harm a person's reputation, usu. by
subjecting the person to public contempt, disgrace, or
ridicule, or by adversely affecting the person's business.
[Cases: Libel and Slander ~6-14.]
"A communication is defamatory if it tends so to harm the
reputation of another as to lower him in the estimation of
the community or to deter third persons from associating
or dealing with him." Restatement (First) of Torts  559
(1938). "No exhaustive definition of 'defamatory' emerges from
the cases for, as Lord Reid once said, it is not for the judges
to 'frame definitions or to lay down hard and fast rules. It
is their function to enunciate principles and much that they
say is intended to be illustrative or explanatory and not to
be definitive' [Cassell & Co. Ltd. v. Broome (1972) AC 1027,
1085]. One can nevertheless achieve a working descrip
tion by combining two statements, namely: a defamatory
statement is one which injures the reputation of another
by exposing him to hatred, contempt, or ridicule, or which
tends


one which injures the reputation of another
by exposing him to hatred, contempt, or ridicule, or which
tends to lower him in the esteem of right-thinking members
of society." R.w.M. Dias & B.S. Markesinis, Tort Law423-24
(2d ed. 1989).
defamatory communication. See DEFAMATORY STATE
MENT.
defamatory libel. See LIBEL (1).
defamatory propaganda. See PROPAGANDA.
defamatory statement. A statement that tends to injure
the reputation ofa person referred to in it.  The state
ment is likely to lower that person in the estimation
of reasonable people and in particular to cause that
person to be regarded with feelings of hatred, contempt,
ridicule, fear, or dislike. -Also termed defamatory
communication. [Cases: Libel and Slander ~6-14.]
defames (di-fay-meez or di-fahm), adj. [Law French]
Infamous.
default (di-fawlt also dee-fawlt), n. (13c) The omission
or failure to perform a legal or contractual duty; esp.,
the failure to pay a debt when due. [Cases: Contracts
~312, 315.]
default (di-fawlt), vb. 1. To be neglectful; esp., to fail to
perform a contractual obligation. 2. To fail to appear
or answer. 3. To enter a default judgment against (a
litigant).
defaultant (di-fawl-tant), adj. In default; having
defaulted. See DEFAULTER.
defaulter. 1. A person who is in default. 2. A person who
misappropriates or fails to account for money held
in the person's official or fiduciary capacity. -Also
termed defaultant.
default judgment. (16c) 1. A judgment entered against a
defendant who has failed to plead or otherwise defend
against the plaintiff's claim. [Cases: Federal Civil Pro
cedure ~2411; Judgment ~92.] 2. A judgment
entered as a penalty against a party who does not
comply with an order, esp. an order to comply with
a discovery request. See Fed. R. Civ. P. 55(b). -Also
termed judgment by default. See JUDGMENT. [Cases:
Federal Civil Procedure ~1278, 2820; Pretrial Pro
cedure ~46.]
nil-dicit default judgment (nil dI-sit). [Latin "he says
nothing"] (2002) A judgment for the plaintiff entered
after the defendant fails to file a timely answer, often
after the defendant appeared in the case by filing a
preliminary motion. -Often shortened to nihil
dicit. -Also termed nihil-dicit default judgment;
judgment by nil dicit. [Cases: Judgment ~106.]
no-answer default judgment. (1979) A judgment for
the plaintiff entered after the defendant fails to timely

481
answer or otherwise appear. [Cases: Judgment cp
106.J
post-answer default judgment. (l979) A judgment
for the plaintiff entered after the defendant files an
answer, but fails to appear at trial or otherwise provide
a defense on the merits. [Cases: Judgment 109.]
default jurisdiction. See JURISDICTION.
default of issue. See FAILURE OF ISSUE.
default rule. See RULE (1).
defeasance (di-feez-;mts), n. (I5c) 1. An annulment or
abrogation; VOIDANCE. 2. The fact or an instance of
bringing 'an estate or status to an end, esp. by condi
tiona I limitation. 3. A condition upon the fulfillment of
which a deed or other instrument is defeated or made
void; a contractual provision containing such a condi
tion. -Also termed defeasance clause. 4. Hist. A col
lateral deed made simultaneously with a conveyance
and containing a condition by which the main deed
might be defeated or made void. Also spelled defea
zance. -defease, vb.
"A defeazance is a collateral deed, made at the same time
with a feoffment or other conveyance, containing certain
conditions, upon the performance ofwhich the estate then
created may be defeated or totally undone." 2 William Black
stone, Commentaries on the Laws ofEngland 327 (1766).
defeasance clause. A mortgage provision stating that the
conveyance to the mortgagee will be ineffective if the
mortgagor pays the debt on time. See DEFEASANCE (3).
[Cases: Mortgages
defeasible, adj. (16c) (Of an act, right, agreement, or
position) capable of being annulled or avoided <defeasi
ble deed>. Seefee simple defeasible under FEE SIMPLE.
defeasibility, n.
defeasible deed. See DEED.
defeasible estate. See ESTATE (1).
defeasible fee simple. Seefee simple defeasible under FEE
SIMPLE.
defeasible interest. See INTEREST (2).
defeasible remainder. See REMAINDER.
defeasible title. See TITLE (2).
defeasive, adj. Rare. Capable of defeating <a counter
claim defeasive of the plaintiffs right to recovery>.
defeat, vb. 1. To deprive (someone) of something
expected, usu. by an antagonistic act <to defeat the
opponent in an election>. 2. To annul or render (some
thing) void <to defeat title>. 3. To vanquish; to conquer
(someone or something) <to defeat the armies>. 4. To
frustrate (someone or something) <the expenditures
defeat the bill's purpose>.
defect, n. (15c) An imperfection or shortcoming, esp.
in a part that is essential to the operation or safety of
a product. -defective, adj. [Cases: Products Liability
(::=> 119.]
apparent defect. See patent defect.
design defect. (1954) An imperfection occurring when
the seller or distributor could have reduced or avoided defect of form
a foreseeable risk of harm by adopting a reasonable
alternative deSign, and when, as a result of not using
the alternative, the product or property is not reason
ably safe. Cf. manufacturing defect. [Cases: Products
Liability 128.]
fatal defect. (18c) A serious defect capable of nullify
ing a contract.
hidden defect. (1896) A product imperfection that is
not discoverable by reasonable inspection and for
which a seller or lessor is liable if the flaw
causes harm. -Upon discovering a hidden defect,
a purchaser may revoke a prior acceptance. UCC
 2-608(l)(b). -Also termed latent defect; inherent
defect. [Cases: Sales
latent defect. See hidden defect.
manufacturing defect. (l925) An imperfection in a
product that departs from its intended design even
though all possible care was exercised in its assembly.
Cf. design defect. Products Liability (::=> 125.]
marketing defect. (1980) 1. The failure to adequately
warn of a potential risk of harm that is known or
should have been known about a product or its fore
seeable use. 2. The failure to adequately instruct
the user about how to use a product safely. [Cases:
Products Liability
patent defect. (1827) A defect that is apparent to a
normally observant person, esp. a buyer on a reason
able inspection. Also termed apparent defect.
product defect. (l967) An imperfection in a product
that has a manufacturing defect or design defect, or is
faulty because ofinadequate instructions or warnings.
See manufacturing defect; design defect; marketing
defect. [Cases: Products LiabilityC= 122.]
defective, adj. (14c) 1. (Of a position, right, act, or
process) lacking in legal sufficiency <defective execu
tion of documents> <defective service of process>. 2.
(Of a product) containing an imperfection or short
coming in a part essential to the product's safe opera
tion <defective wiring caused the accident>. [Cases:
Products Liability ~~119.]
defective condition. (1823) An unreasonably danger
ous state that might well cause physical harm beyond
that contemplated by the ordinary user or consumer
who purchases the product. See PRODUCTS LIABILITY.
[Cases: Products LiabilityG~ ll9.]
defective performance. See PERFORMANCE.
defective pleading. See PLEADING (1).
defective process. See PROCESS.
defective product. See PRODUCT.
defective record. See RECORD.
defective title. See TITLE (2).
defective trust. See TRUST.
defective verdict. See VERDICT.
defect of form. (17c) An imperfection in the style,
manner, arrangement, or nonessential parts of a legal

482 defect of parties
document, as distinguished from a substantive defect.
Cf. DEFECT OF SUBSTANCE.
defect ofparties. (18c) A failure to include all indispens
able parties in a lawsuit. [Cases: Federal Civil Proce
dure (::::>384; Parties (::::>77,81.]
defect of reason. Archaic. l. Mental illness. 2. Mental
retardation.
defect of substance. (18c) An imperfection in the sub
stantive part of a legal document, as by omitting an
essential term. Cf. DEFECT OF FORM.
defectus (di-fek-tJs), n. [fr. Latin deficere "to be defi
cient"] Hist. A defect; a deficiency.
defectus sanguinis (di-fek-tJs sang-gwi-nis). [Latin
"defect of blood"] Hist. A failure ofissue, often result
ing in an escheat. See ESCHEAT.
defence. See DEFENSE.
defend, vb. (14c) l. To deny, contest, or oppose (an alle
gation or claim) <the corporation vigorously defended
against the shareholder's lawsuit>. 2. To represent
(someone) as an attorney <the accused retained a well
known lawyer to defend him>.
defendant (di-fen-dJnt). (14c) A person sued in a civil
proceeding or accused in a criminal proceeding. -
Abbr. D. Cf. PLAINTIFF.
John Doe defendant. An anonymous defendant labeled
"John Doe" because the plaintiff does not, at the time
of filing suit, know the person's name. John Doe
defendants are common in several situations, such as
police-brutality lawsuits in which the plaintiff does
not know the names of the officers allegedly at fault,
and in some copyright-infringement lawsuits where
defendants are identified only by Internet addresses.
See JOHN DOE. [Cases: Federal Civil Procedure (::::>
101; Parties (::::>73.]
target defendant. In a case with multiple defendants,
the one whom the plaintiff considers the primary
source for any recovery ofdamages. Among several
defendants, one is usu. the most blameworthy or has
the most insurance or greatest assets, or both.
defendant in error. (I8c) Archaic. In a case on appeal,
the prevailing party in the court below. See APPELLEE;
RESPONDENT (1).
defendant score. (1982) A number taken from an estab
lished scale, indicating the relative seriousness of the
defendant's criminal history. Cf. CRIME SCORE.
defendant's gain. (1882) The amount of money or
the value of property that a criminal defendant has
obtained by committing a crime . Some states, such as
New York, consider the defendant's gain when assess
ing a criminal fine or ordering restitution.
defendemus (di-fen-dJ-mJs). [fro Latin defendere] We
will defend . This term was used in conveyancing to
require the donor and the donor's heirs to defend the
donee against any attempted encumbrance not spe
cifically agreed to. Although defendemus was not a warranty, it became part of the warranty clause "shall
and will warrant and forever defend."
defender. l. One who defends, such as the defendant in a
lawsuit, a person using self-defense, or defense counsel.
2. PUBLIC DEFENDER.
defendere (di-fen-dJ-ree), vb. [Law Latin] To deny; to
defend.
defendere se per corpus suum (di-fen-dJ-ree see pJr
kor-PJs s[y]oo-Jm), vb. [Law Latin "to defend himself
by his own body"] Hist. To agree to a trial by judicial
combat; to agree to a duel.
defendere unica manu (di-fen-dJ-ree yoo-nJ-kJ man
yoo), n. [Law Latin "to defend with one hand"] Hist. A
denial ofan accusation under oath.
Defender of the Faith. See DEFENSOR FIDEI.
defendour (day-fon-duur), n. [Law French] Hist. A defen
dant; the party accused in an appeal.
defeneration (dee-fen-J-ray-shJn), n. [fro Latin de "of" +
foenero "to lend upon usury"] Hist. The act of lending
money at a usurious interest rate.
defenestration (dee-fen-J-stray-shJn). (17c) The act of
throwing someone or something out a window.
defenestrate, vb.
defense (di-fen[t]s). (16c) l. A defendant's stated reason
why the plaintiff or prosecutor has no valid case; esp.,
a defendant's answer, denial, or plea <her defense was
that she was 25 miles from the building at the time of
the robbery>. [Cases: Criminal Law (::::>31.]
"Defence is defined to be that which is alleged by a party
proceeded against in an action or suit, as a reason why
the plaintiff should not recover or establish that which he
seeks by his complaint or petition." Edwin E. Bryant, The
Law


should not recover or establish that which he
seeks by his complaint or petition." Edwin E. Bryant, The
Law of Pleading Under the Codes of Civil Procedure 240
(2d ed. 1899).
affirmative defense. (1837) A defendant's assertion of
facts and arguments that, if true, will defeat the plain
tiff's or prosecution's claim, even ifall the allegations
in the complaint are true . The defendant bears the
burden of proving an affirmative defense. Examples
of affirmative defenses are duress (in a civil case)
and insanity and self-defense (in a criminal case).
Also termed plea in avoidance; plea in justification.
Cf. negative defense; CONFESSION AND AVOIDANCE.
[Cases: Criminal Law (::::>31; Federal Civil Procedure
(::::>751; Pleading (::::>76,78,130.]
capacity defense. (1967) A defense based on the defen
dant's inability to be held accountable for an illegal
act or the plaintiff's inability to prosecute a lawsuit
(as when the plaintiff was a corporation, but has lost
its corporate charter). See CAPACITY.
choice-of-evils defense. See lesser-evils defense.
collateral defense (kJ-lat-J-rJl). Criminal law. A defense
of justification or excuse not involving a rebuttal of
the allegation and therefore collateral to the elements
that the prosecutor must prove. See EXCUSE (2); JUSTI
FIcATION (2). [Cases: Criminal Law (::::>38.]

483
cultural defense. 1. A criminal defendant's assertion
that because an admitted act is not a crime in the
perpetrator's culture or native land, it should not be
judged by the laws of the place where it was commit
ted. -This cultural defense is asserted as an affirma
tive defense to a criminal charge. 2. The defense that
the actor's mental state at the time the alleged crime
was committed was heavily influenced by cultural
factors. -This is not a complete defense but a mitigat
ing one, pleaded to reduce the charges, the sentence,
or both. See FEMALE GENITAL MUTILATION. [Cases:
Criminal Law C:.:>34.]
defense ofhabitation. 'The defense that conduct con
stituting a criminal offense is justified ifan aggressor
unjustifiably threatens the defendant's place of abode
or premises and the defendant engages in conduct
that is (1) harmful to the aggressor, (2) sufficient to
protect that place of abode or premises, and (3) rea
sonable in relation to the harm threatened. -Also
termed defense ofpremises. See CASTLE DOCTRINE.
[Cases: Assault and Battery C-~69; Criminal
38; Homicide C:~)759.J
defense ofhonesty. See honesty defense.
defense ofinequitable conduct. Patents. A defense to
an action for patent infringement, made by charging
the plaintiff with breaching the duty of candor and
good faith. -To succeed, the defendant must show
that, in the patent prosecution, the plaintiffintention
ally withheld material information from or misled
the examiner. Inequitable conduct is a combination
of two former defenses: unclean hands and fraud on
the Patent Office. [Cases: Patents ~97.]
derivative defense. (I972) A defense that rebuts the
criminal elements that a prosecutor must establish
to justify the submission ofa criminal case to a jury.
[Cases: Criminal Law
designer defense. A novel defense based on dimin
ished capacity attributed to stress or impairment.
The phrase derives from the fact that the defense is
tailored to the defendant and the circumstances of
the crime. Examples include extraordinary reactions
to snack food (the Twinkie defense), unconscious
ness or sleepwalking, and postpartum psychosis. See
AUTOMATISM. [Cases: Criminal LawC-':J46; Homicide
C~815, 816.]
dilatory defense (dil-a-tor-ee). (1845) A defense that
temporarily obstructs or delays a lawsuit but does
not address the merits. -Examples of dilatory
defenses include misjoinder, nonjoinder, res judicata,
misnomer, lack of capacity to sue, another action
pending, statute of limitations, prematurity, unripe
ness, release, and settlement.
dwelling defense. See CASTLE DOCTRINE.
eleemosynary defense. See charitable immunity under
IMMUNITY (2).
empty-suit defense. A defense in which a high-ranking
officer or director in an organization claims ignorance
of any wrongdoing by subordinates. defense
equitable defense. (18c) A defense formerly available
only in a court of equity but now maintainable in
a court oflaw. _ Examples include mistake, fraud,
illegality, failure ofconsideration, forum non conve
niens, laches, estoppel, and unclean hands.
frivolous defense. (18c) A defense that has no basis in
fact or law.
full defense. A technical common-law defensive plea,
stated at length and without abbreviation. -This plea
is obsolete because of the pleading requirements in
federal and state rules of civil procedure.
general-justification defense. See lesser-evils defense.
honesty defense. Rare. An assertion that the defen
dant acted honestly and in good faith. -This defense,
almost unique to civil suits, is rarely raised. For
example, a defendant may assert honesty as a defense
to a charge of fraudulent misrepresentation. Also
termed defense ofhonesty. Cf. CLAIM OF RIGHT (1).
[Cases: Fraud ~36.1
imperfect defense. (1835) A defense that fails to meet all
legal requirements and usu. results only in a reduction
in grade or sentence rather than an acquittal, as when
a defendant is charged with manslaughter rather
than murder because the defendant, while defending
another, used unreasonable force to repel the attack.
See imperfect self-defense under SELF-DEFENSE. Cf.
perfect defense.
inconsistent defense. (1852) A defense so contrary to
another defense that the acceptance of one requires
abandonment of the other.  A person accused of
murder, for example, cannot claim both self-defense
and the alibi of having been in a different city when
the murder took place. [Cases: Criminal Law
43.5.]
innocent-owner defense. In forfeiture action, an
affirmative defense in which the owner of property
(such as real estate or money) asserts that another
person committed the wrongful act or omission while
using the property without the owner's knowledge
or consent. See 18 USCA  983(d). See civil forfeiture
under FORFEITURE. [Cases: Controlled Substances
Forfeitures C:;)4.J
insanity defense. See INSA:>IITY DEFENSE.
issuable defense. (1847) Cornman-law pleading. A plea
on the merits setting forth a legal defense. Cf. issuable
plea under PLEA (3).
justification defense. See JUSTIFICATION DEFENSE.
legal defense. (17c) A complete and adequate defense
in a court oflaw.
lesser-evils defense. (1982) The defense that, while
the defendant may have caused the harm or evil that
would ordinarily constitute a criminal offense, in the
present case the defendant has not caused a net harm
or evil because ofjustifying circumstances and there
fore should be exculpated. Also termed choice-ol
evils defense; necessity; general-just~fication defense.

defense 484
meritorious defense (mer-;:J-tor-ee-;:Js). (lSc) 1. A
defense that addresses the substance or essentials of
a case rather than dilatory or technical objections.
[Cases: Federal Civil Procedure C=;>2450, 2651.1;
Judgment 379,447.]2. A defense that appears
likely to succeed or has already succeeded.
necessity defense. See rUSTIFICATION (2).
negative defense. A defendant's outright denial of the
plaintiffs allegations without additional facts pleaded
by way of avoidance. Cf. affirmative defense. [Cases:
Pleading
new-value defense. Bankruptcy. A defense to a suit to
recover preferential payments whereby the transferee
ofthe payments can reduce liability by the amount of
consideration or value that the transferee provided to
the transferor after a suspect transfer. [Cases: Bank
ruptcyC=;>2613.J
ostrich defense. A criminal defendant's claim not to
have known of the criminal activities of an associ
ate.
partial defense. (1818) A defense going either to part of
the action or toward mitigation ofdamages.
pass-on defense. An antitrust defense that a member of
the distributive chain who was overcharged or under
charged passed on the price adjustment to reflect the
charge and thereby suffered no damage. Also
termed passing on. [Cases: Antitrust and Trade Reg
ulation C=;>908.J
peremptory defense (p;H-emp-tdr-ee). (1860) A
defense that questions the plaintiff's legal right to
sue or contends that the right to sue has been extin
guished.
perfect defense. (1817) A defense that meets all legal
requirements and results in the defendant's acquit
tal. See perfect self-defense under SELF-DEFENSE. Cf.
imperfect defense.
pretermitted defense (pree-t<:lr-mit-id). (1947) A
defense available to a party that must be pleaded at
the right time or be waived.
sham defense. (1853) A fictitious, untrue defense, made
in bad faith.
sleepwalking defense. See AUTOMATISM.
SODDI. See SODDI DEFENSE.
true defense. A defense admitting that a defendant
committed the charged offense, but seeking to avoid
punishment based on a legal excuse (such as insanity)
or justification (such as self-defense).
unconsciousness defense. See AUTOMATISM.
XYY-chromosome defense. See XYY-CHROMOSOME
DEFENSE.
2. A defendant's method and strategy in opposing the
plaintiffor the prosecution; a doctrine giving rise to
such a method or strategy <the lawyer advised her
client to adopt a passive defense and to avoid taking
the witness stand>. empty-chair defense. (1981) A trial tactic in a multi
party case whereby one detendant attempts to put all
the fault on a defendant who plea-bargained or settled
before trial or on a person who was neither charged
nor named as a party.
malicious defense. Torts. A defendant's use of unfair,
harassing, or illegal tactics to advance a frivolous or
unmeritorious defense. The elements of the tort
are (1) the defendant's initiation, continuation, or
procurement ofproceedings; (2) knowledge that the
defense lacks merit; (3) the assertion of the defense
for a purpose other than to properly adjudicate the
claim, such as to harass, annoy, or injure, or to cause
unnecessary delay or needless increase in the cost of
litigation; (4) termination ofthe suit in the plaintiff's
favor; and (5) harm to the plaintiff resulting from the
proceeding. Damages are the same as in an action for
malicious prosecution. A minority ofstates recognize
the tort. Cf. MALICIOUS PROSECUTION. [Cases: Torts
~'-:J437.]
Stalingrad defense. The strategy ofwearing down the
plaintiffby tenaciously fighting by whatever means
anything the plaintiff presents and appealing every
ruling favorable to the plaintiff, rather than present
ing a meritorious case . The tactic is named for the
Russian city beSieged by the Germans in World War
II. The defenders refused to surrender and used every
available tactic and tool to hold the attackers at bay
until winter cut the enemy's supply lines, leaving the
attackers with inadequate resources with which to
continue the siege.
3. One or more defendants in a trial, as well as their
counsel <the defense rests>. 4. Commercial law. A basis
for avoiding liability on a negotiable instrument <the
drawer asserted a real defense against the holder in due
course>.
absolute defense. See real defense.
personal defense. (1950) An ordinary defense in a
contract action -such as failure ofconsideration or
nonperformance ofa condition that the maker or
drawer ofa negotiable instrument is precluded from
raising against a person who has the rights ofa holder
in due course. See DCC  3-305(b). A personal
defense can be asserted only against a transferee who
is not a holder in due course. Also termed limited
defense.
real defense. A type of defense that is good against
any possible claimant, so that the maker or drawer
of a negotiable instrument can raise it even against
a holder in due course. The ten real defenses are
(1) fraud in the factum, (2) forgery of a necessary
signature, (3) adjudicated insanity that, under state
law, renders the contract void from its inception, (4)
material alteration of the instrument, (5) infancy,
which renders the contract voidable under state law,
(6) illegality that renders the underlying contract
void, (7) duress, (8) discharge in bankruptcy, or any
discharge known to the holder in due course, (9) a
suretyship defense (for example, if the holder knew

485 defense of self
that one indorser was signing as a surety or accom- I overseeing the Department's day-to-day finance and
modation party), and (10) a statute of limitations
(generally three years after dishonor or acceptance on
a draft and six years after demand or other due date
on a note). -Also termed absolute defense; universal
defense. [Cases: Bills and Notes (::::;>364.]
5. Measures taken by a country or individual to
protect against an attack. See SELF-DEFENSE; NATIONAL
DEFENSE


taken by a country or individual to
protect against an attack. See SELF-DEFENSE; NATIONAL
DEFENSE (1).
self-defense. See SELF-DEFENSE.
6. A country's military establishment. See NATIONAL
DEFENSE ~2). -Also spelled in all senses (esp. in BrE)
defence. 7. TAKEOVER DEFENSE.
Defense Advanced Research Projects Agency. An
agency in the U.S. Department of Defense responsi
ble for military research and development. -Abbr.
DARPA.
defense attorney. A lawyer who represents a defendant in
a civil or criminal case. -Also termed defense counsel;
defense lawyer.
defense au fond en droit (di-fen[t]s oh fohn on drwah).
Civil law. Demurrer.
Defense Commissary Agency. An agency in the U.S.
Department of Defense responsible for providing goods
and services to members of the armed forces at reduced
prices. Abbr. DeCA.
defense contingent fee. See reverse contingent fee under
CONTINGENT FEE.
Defense Contract Audit Agency. An agency in the
U.S. Department of Defense responsible for conduct
ing contract audits and for providing accounting and
financial advice to all Department components respon
sible for procurement and contract administration. -
Abbr. DCAA.
Defense Contract Management Agency. A unit in the
U.S. Department ofDefense responsible for managing
contracts to ensure that supplies and services are deliv
ered on time and within cost and that they meet per
formance requirements. Abbr. DCMA.
defense counsel. See DEFENSE ATTORNEY.
Defense Department. An executive department of the
federal government, responsible for coordinating and
overseeing military affairs and the agencies responsi
ble for national security . 1he Department was estab
lished as the National Military Establishment in 1947,
by combining the War and the Navy Departments. Its
name was changed to Department of Defense in 1949.
The Department's components include the Army, the
Air Force, the Navy, the Marine Corps, and the Joint
Chiefs ofStaff. It is headed by the Secretary of Defense,
who is answerable to the President as Commander-in
Chief. Also termed Department ofDefense (abbr.
DOD).
Defense Finance and Accounting Service. A unit in the
U.S. Department ofDefense responsible for providing
professional finance and accounting services and for accounting activities. Abbr. DFAS.
Defense Information Systems Agency. An agency in the
U.S. Department ofDefense responsible for developing
and operating information systems to provide combat
support for the armed forces. Abbr. DISA.
Defense Intelligence Agency. A combat-support unit in
the U.S. Department of Defense responsible for devel
oping and managing foreign military intelligence in
support of military planning and operations and of
weapons-systems acquisition. Abbr. DIA.
Defense Investigative Services. See DEFENSE SECURITY
SERVICE.
defense lawyer. See DEFENSE ATTORNEY.
Defense Legal Services Agency. An agency in the U.S.
Department of Defense responsible for providing
legal services to all agencies in the Department. - The
General Counsel ofthe Department directs its opera
tions. Abbr. DLSA.
Defense Logistics Agency. A unit in the U.S. Depart
ment of Defense responsible for providing worldwide
logistics support for military missions both in peace
and in war . The Agency also supports nonmilitary
agencies overseas. -Abbr. DLA.
defense-month. See FENCE-MONTH.
Defense Nuclear Facilities Safety Board. An indepen
dent federal board that sets standards for the design,
construction, operation, and decommissioning of
defense nuclear facilities of the U.S. Department of
Energy. It was established in 1988.42 USCA  2286
2286i.
defense ofhabitation. See DEFENSE (1).
defense ofhonesty. See DEFENSE (1).
Defense of Marriage Act. A federal statute that (1)
provides that no state can be required to recognize or
give effect to same-sex marriages, (2) defines the term
"marriage" for purposes offederal law as the union of a
man and a woman as husband and wife, and (3) defines
"spouse" for purposes of federal law as being only a
person of the opposite sex. 1USCA  7; 28 USCA 1738C.
 The Defense ofMarriage Act was enacted in response
to the fear that if one state sanctioned same-sex mar
riages, other states might then have to give full faith
and credit to those marriages. -Abbr. DOMA. [Cases:
Marriage (::::;> 17.5.]
defense of others. (1942) A justification defense avail
able ifone harms or threatens another when defending
a third person. See JUSTIFICATION (2). [Cases: Assault
and Battery (::::;>68; Homicide C= 757.J
defense of premises. See defense ofhabitation under
DEFENSE (1).
defense ofproperty. (1918) A justification defense avail
able ifone harms or threatens another when defending
one's property. See JUSTIFICATION (2). [Cases: Assault
and Battery (::::;>69; Homicide (::::;>758.]
defense ofself. See SELF-DEFENSE.

486 Defense Security Cooperation Agency
Defense Security Cooperation Agency. A unit in the
U.S. Department of Defense responsible for fostering
and overseeing security-cooperation arrangements and
for promoting security relationships with US. friends
and allies. Abbr. DSCA.
Defense Security Service. A unit in the U.S. Department
of Defense responsible for conducting personnel inves
tigations and providing industrial-security products
and services to the Department and other agencies .
The agency was formerly known as the Defense Inves
tigative Service. Abbr. DSS.
Defense Threat Reduction Agency. A unit in the U.S.
Department of Defense responsible for reducing the
risk of and defending against attacks that involve
nuclear, chemical, biological, or other weapons of
mass destruction . The Agency was created in 1998.
Abbr. DTRA.
defensiva (dee-fen-sl-vd), n. [Latin "a protector"] Hist.
A warden of the Marches, being one of many lords
appointed by the Crown to defend England's borders.
defensive allegation. See ALLEGATION.
defensive collateral estoppel. See COLLATERAL
ESTOPPEL.
defensive disclosure. Patents. The deliberate publica
tion of details about an invention in order to render
it prior art and preclude others from getting a patent
on the same invention . This can be done formally,
by filing for public disclosure through the Statutory
Invention Registration and publishing the abstract in
the Official Gazette of the U.S. Patent and Trademark
Office, or privately, by publishing it in an independent
journal that will probably be consulted by a patent
examiner. Also termed defensive publication. See
STATUTORY INVENTION REGISTRATION. [Cases: Patents
~1l51
defensive-force justification. See JUSTIFICATION.
defensive lockout. See LOCKOUT.
defensive-posture memorandum. See DEFENSIVE
PROFILE.
defensive profile. The set of strategies devised by a
company to discourage others from attempting a
hostile takeover.
defensive-profile memorandum. Corporations. An
outline of a company's strategy against a hostile
takeover. Also termed defensive-posture memoran
dum.
defensive publication. See DEFENSIVE DISCLOSURE.
defensive treaty. See TREATY (1).
defensor (di-fen-sdr or -sor), n. [fr. Latin defendere "to
forhid"] 1. Roman law. A defender of another's interests
in court; an advocate, esp. for a corporation. Cf. PROCU
RATOR LITIS. 2. Roman law. DEFENSOR CIVITATIS. 3.
Hist. Eccles. law. An advocate or patron of a church;
a church warden. 4. Hist. A guardian; a protector; a
defender. defensor civitatis (di-fen-sdr siv-i-tay-tis). [Latin
"defender ofthe city"] Roman law. An officer conduct
ing public business, including protecting people, esp.
the poor, from legal injustices, adjudicating certain
minor offenses and pecuniary matters, and acting as
a notary in the execution of a will or other transfer.
Often shortened to defensor.
defensor fidei (di-fen-sdr fI-dee-I), n. [Latin "defender
of the faith"] Hist. A unique title of the sovereign of
England, first granted in 1521 by Pope Leo X to Henry
VIII for writing against Martin Luther . The Pope later
withdrew the title because of Henry's harsh regulation
of the church, but the title was again bestowed on the
King by Parliament in 1544. The term is similar to
the application of"Catholic" to the Spanish sovereign
and "Most Christian" to the French sovereign. Also
termed Defender ofthe Faith.
defensum (di-fen-sdm), n. [Law Latin "an inclosure"]
Hist. 1. A portion of an open field allotted for corn or
hay but not for feeding. 2. A wood partially enclosed
to prevent the cattle from damaging the undergrowth.
3. A prohibition.
defer, vb. (17c) 1. To postpone; to delay <to defer taxes
to another year>. 2. To show deference to (another);
to yield to the opinion of <because it was a political
question, the courts deferred to the legislature>.
deferment, n. 1. The act of delaying; postponement
<deferment of a judicial decision>. 2. Military law.
A delay in serving in the military. [Cases: Armed
Services (;:::>20.6.] 3. Military law. A delay in serving
confinement that results from a court-martial until the
sentence has been approved and its execution has been
ordered. The convening authority may grant a defer
ment. [Cases: Armed Services ~48;Military Justice
(;'-:::> 1399.] -defer, vb.
deferral of taxes. The postponement of paying a tax
from one year to another, as by contributing money to
an IRA, for which earnings and contributions will be
taxed only when the money is withdrawn.
deferral state. (1977) Under the Age Discrimination
in Employment Act (ADEA), a state that has its own
anti-discrimination legislation and enforcement mech
anism, so that the time to file a federal lawsuit under
the ADEA is postponed until state remedies have been
exhausted. [Cases: Civil Rights 1507.]
deferred adjudication. See deferred judgment under
JUDGMENT.
deferred-adjudication probation. See deferred judgment
under JUDGMENT.
deferred annuity. See ANNUITY.
deferred charge. (I917) An expense not currently rec
ognized on an income statement but carried forward
on the balance sheet as an asset to be written off in the
future <insurance premiums are a deferred charge>.
deferred claim. (1900) A claim postponed to a future
accounting period.
deferred compensation. See COMPENSATION.

487 de finibus levatis
deferred credit. A credit (such as a premium on an issued
bond) that is required to be spread over later account
ing periods.
deferred dividend. See DIVIDEND.
deferred-dividend insurance policy. See INSURANCE
POLICY.
deferred expense. See EXPENSE.
deferred income. See INCOME.
deferred-interest bond. See BOND (3).
deferred judgment. See JUDGMENT.
deferred lien. See LIEN.
deferred payment. (1831) A principal-and-interest
payment that is postponed; an installment payment.
deferred-payment annuity. See deferred annuity under
ANNUITY.
deferred prosecution. See deferred judgment under
JUDGMENT.
deferred revenue. See prepaid income under INCOME.
deferred sentence. See SENTENCE.
deferred stock. See STOCK.
deficiency, n. (17c) 1. A lack, shortage, or insufficiency.
2. A shortfall in paying taxes; the amount by which
the tax properly due exceeds the sum ofthe amount of
tax shown on a taxpayer's return. - Also termed tax
deficiency; income-tax deficiency; deficiency in tax. 3.
The amount still owed when the property secured by
a mortgage is sold at a foreclosure sale for less than
the outstanding debt; esp., the shortfall between the
proceeds from a foreclosure sale and an amount con
sisting ofthe principal debt plus interest plus the fore
closure costs. See deficiency judgment under JUDGMENT.
[Cases: Mortgages ~375,555-562.]
deficiency assessment. See ASSESSMENT.
deficiency bill. See BILL (3).
deficiency decree. See deficiency judgment under
JUDGMENT.
deficiency dividend. See DIVIDEND.
deficiency in tax. See DEFICIENCY (2).
deficiency judgment. See JUDGMENT.
deficiency letter. 1. An IRS letter to a taxpayer, detail
ing the ways in which a tax return seems to be defi
cient. 2. An SEC letter to a registrant of a securities
offering, detailing the ways in which the registration
statement seems not to conform to federal disclosure
requirements. Also termed letter ofcomment; letter
of comments. See NINETY-DAY LETTER; THIRTY-DAY
LETTER.
deficiency notice. See NINETY-DAY LETTER.
deficiency suit. (1927) An action to recover the difference
between a mortgage debt and the amount realized on
foreclosure. See deficiency judgment under JUDGMENT.
[Cases: Mortgages C-~'561.] deficit. (lSc) 1. A deficiency or disadvantage; a deficiency
in the amount


61.] deficit. (lSc) 1. A deficiency or disadvantage; a deficiency
in the amount or quality ofsomething.
trade deficit. In economics, the excess ofmerchandise
imports over merchandise exports during a specific
period. Also termed trade gap. Cf. trade surplus
under SURPLUS.
2. An excess ofexpenditures or liabilities over revenues
or assets.
deficit spending. (193S) The practice of making expen
ditures in excess ofincome, usu. from borrowed funds
rather than actual revenues or surplus.
de fide instrumentorum (dee fI-dee in-stra-men-tor-am).
[Latin] Roman & Scots law. On the reliance to be placed
on written documents. -The phrase appeared in refer
ence to actions of rescission based on forgery.
de fideli administratione officii (dee fi-dee-II ad-min-a
stray-shee-oh-nee a-fish-ee-I). [Law Latin "of faithful
administration of office"] Scots law. An oath to faith
fully execute the duties ofone's public office or duty.
Often shortened to de fideli administratione.
defile (di-fd), vb. (14c) L To make dirty; to physically
soil. 2. To figuratively tarnish; to dishonor. 3. To make
ceremonially unclean; to desecrate. 4. To morally
corrupt (someone). 5. Archaic. To debauch (a person);
to deprive (a person) ofchastity.
defilement (di-fd-mant), n. 1. An act of defiling. 2. A
condition ofbeing defiled.
define, vb. 1. To state or explain explicitly. 2. To fix or
establish (boundaries or limits). 3. To set forth the
meaning of (a word or phrase).
defined-benefit pension plan. See PENSION PLAN.
defined-benefit plan. See EMPLOYEE BENEFIT PLAN.
defined-contribution pension plan. See defined-contri
bution plan under EMPLOYEE BENEFIT PLAN.
defined-contribntion plan. See EMPLOYEE BENEFIT
PLAN.
defined pension plan. See PENSION PLAN.
defined term. In legal drafting, a word or phrase given
a specific meaning for purposes of the document in
which it appears; a definiendum.
de fine force (dee fI-nee fors). [Law French] Of pure
necessity.
de fine non capiendo pro pulchre placitando (dee fr -nee
non kap-ee-en-doh proh pal-kree plas-a-tan-doh), n.
[Law Latin "of not taking a fine for amending a bad
pleading"] Hist. A writ prohibiting the imposition ofa
fine for bad pleading. See BEAUPLEADER.
de fine pro redisseisina capiendo (dee fr-nee proh ree
dis-see-zin-a kap-ee-en-doh), n. [Law Latin "of a fine
paid for one imprisoned for redisseisin"] His/. A writ
releaSing a person who paid a reasonable fine after
being imprisoned for a redisseisin.
de finibus leva tis (dee fIona-bas la-vay-tis), n. [Law Latin
"concerning fines levied"] Hist. The statute requiring

any levied fines to be read solemnly in open court. 27
Edw.l.
definite failure ofissue. See FAILURE OF ISSUE.
definite sentence. See determinate sentence under
SENTENCE.
definitio (def-a-nish-ee-oh), n. [fro Latin definire "defi
nition"] Civil law. l. A definition; an explanation of
something. 2. The establishment ofa general rule. 3. A
boundary. PI. definitiones.
definition. (14c) The meaning of a term as explicitly
stated in a drafted document such as a contract, a CO[
porate bylaw, an ordinance, or a statute; a definiens.
lexical definition. (1875) A dictionary-style definition
of a word, purporting to give the full meaning ofa
term.
stipulative definition. (1989) A definition that, for
purposes of the document in which it appears, arbi
trarily clarifies a term with uncertain boundaries or
that includes or excludes specified items from the
ambit of the term.
definitive judgment. See final judgment under
JUDGMENT.
definitive partition. See PARTITION.
definitive sentence. See determinate sentence under
SENTENCE.
deflation, n. A general decline in the price ofgoods and
services. Cf. INFLATION; DISINFLATION. deflate,
vb. deflationary, adj.
deforce, vb. (lSc) I. To keep (lands) from the true owner
by means of force. 2. To oust another from possession
by means of force. 3. To detain (a creditor's money)
unjustly and forcibly. -deforciant, n.
"The character of the action of debt is well illustrated by the
form of the writ as given by Glanville. It directs the sheriff
to order the debtor to render a stated sum which he owes
to the plaintiff, 'and whereof the plaintiff complains that
the defendant unjustly deforces him,' and, if he will not
obey, he is to be summoned before the King's Court. The
plaintiff is 'deforced' of money just as in a writ of right he is
'deforced' of land. It is true that the term 'deforces' disap
peared from the writ shortly after Glanville's time, the word
debet taking its place: but this seems to have been a matter
of form, not of substance. The plaintiff sought to recover
the money due as his property." William F. Walsh, Outlines
of the Hisrory of English and American Law 411 (1924).
deforcement. 1. An act of keeping lands from the true
owner by force. 2. An act ofousting another from pos
session by means offorce. 3. An act ofdetaining a cred
itor's money unjustly and forcibly.
deforciant (di-for-shant), n. [fro Law Latin deforcians
"a deforcer"]l. A person who prevents another from
taking possession of property. 2. The defendant in an
action of fine. See FINE (1).
deforciare (di-for-shee-air-ee), vb. [fro Law Latin defor
tiare "to deforce"] Hist. To withhold property (such as
land and tenements) from the true owner.
deforciatio (di-for-shee-ay-shee-oh), n. [Law Latin "a
distress"] Hist. A seizure ofgoods to satisfy a debt. de forisfactura maritagii (dee for-is-fak-tyoor-a mar
a-tay-jee-I), n. [Law Latin "of forfeiture of marriage"]
Hist. A writ forfeiting a marriage.
defossion (di-fosh-in), n. [ff. Latin de "down" + fodere
"dig"] The punishment of being buried alive.
de frangentibus prisonam (dee fran-jen-ti-bas priz-a
nam), n. [Latin "of those who break prison"] Hist. The
statute providing that an escaped prisoner will not be
put to death or forfeit a limb simply for escaping from
prison unless the original crime required that penalty
upon conviction. 1 Edw.2.
defraud, vb. (14c) To cause injury or loss to (a person) by
deceit, See FRAUD.
defraudation. The perpetration of a fraud; the act of
committing fraud.
defrauder. See FRAUDFEASOR.
defunct, adj. Dead; extinct <defunct corporation>.
defunct marriage. See MARRIAGE (1).
defunctus (di-fangk-tas), adj. [Latin] Dead, as in defunc
tus sine prole ("dead without (leaving) issue").
de furto (dee far-toh), n. [Latin "of theft"] Hist. In
England, a type ofcriminal appeal.
defuturo (dee fyuu-t[y]uur-oh). [Latin] Hist. Regarding
the future; at a future time. -The phrase usu. appeared
in reference to a marriage promise, which was not
binding if it mentioned marriage at a future date. C.
DE PRAESENTI.
degaster (day-gas-tay), vb. [fro Old French degaster "to
spoil"] To waste.
de gestu etfama (dee jes-tyfy]oo et fay-rna), n. [Law
Latin "of behavior and reputation"] His!. A writ avail
able to a person whose character and reputation had
been impeached.
degradation (deg-ra-day-shan). (l6c) I. A reduction in
rank, degree, or dignity; sped., censure of a clergy
member by divestiture of holy orders, either by word
or by a solemn divestiture of robes and other insignia.
C. DEPOSITION (4); DEPRIVATION (4). 2. A moral or
intellectual decadence or degeneration; a lessening of
a person's or thing's character or quality <degradation
of resources>. 3. A wearing down of something, as by
erosion.
de gratia (dee gray-shee-a). [Latin] Offavor; by grace, as
in de speciali gratia ("of special grace or favor").
degree. (13c) l. Generally, a classification or specification
<degrees ofproof>. 2. An incremental measure ofguilt
or negligence; a level based on the seriousness of an
offense <murder in the first degree>. [Cases: Criminal
Law (::=28.]3. A stage in a process; a step in a series of
steps toward an end <the statute went through several
degrees of development>. 4. A stage in intensity <a
high degree oflegal skill is required>. 5. In the line of
descent, a measure of removal determining the prox
imity of a blood or marital relationship <the council
member did not participate in the vote because he was
related to one of the bidders within the first degree of

consanguinity> . In the civil law, and in the degree
of-relationship system used by many American juris
dictions, an intestate estate passes to the dosest ofkin,
counting degrees ofkinship. To calculate the degree of
relationship of the decedent to the claimant, one counts
the steps (one for each generation) up from the decedent
to the nearest common ancestor of the decedent and
the claimant, and on down to the claimant from the
common ancestor. The total number of steps is the
degree ofrelationship. For example, a decedent's cousin
stands in the fourth degree of relationship. Degrees of
relationship are used not only to determine who is the
closest heir but also to establish the incest prohibition
in marriage requirements. Also termed degree ofkin;
degree ofrelationship; degree ofdescent. See AFFINITY
(2); CONSANGUINITY. [Cases: Descent and Distribution
equal degree. (16c) A relationship between two or more
relatives who are the same number of steps away from
a common ancestor. [Cases: Descent and Distribu
tion
prohibited degree. (17c) A degree of relationship so
dose (as between brother and sister) that marriage
between the persons is forbidden by law. Generally,
with slight variations from jurisdiction to jurisdic
tion, the law forbids marriages between all persons
lineally related and within the third civil-law degree
of relationship. That is, aunt-nephew and uncle
niece relations are prohibited. Prohibited degrees
are also known as Levitical degrees, since the incest
prohibition is pronounced in the Bible in Leviticus
18:6-18. Also termed forbidden degree. [Cases:
Marriage
6. A title conferred on a graduate of a school, college,
or university, either after the completion of required
studies or in honor of special achievements <she began
studying for the bar exam the day after receiving her
law degree>. Cf. DIPLOMA (3).
degree of care. (17c) A standard of care to be exercised
in a given situation. See CARE. [Cases: Negligence c:=:>
230.]
degree ofcrime. (1826) 1. A division or classification of
a single crime into several grades of guilt, according to
the circumstances surrounding the crime's commis
sion, such as aggravating factors present or the type
of injury suffered. [Cases: Criminal Law (:=-/28.J 2. A
division ofcrimes generally, such as felonies or misde
meanors. [Cases: Criminal Law
degree ofdescent. See DEGREE (5).
degree ofkin. See DEGREE (5).
degree of negligence. (I8c) One of the varying levels of
negligence typically deSignated as slight negligence,
ordinary negligence, and See NEGLI
GENCE. [Cases: Negligence
"Although the common law concept of degrees of neg
ligence has been criticized or repudiated in many juris
dictions, the usefulness of the view at common law that
degrees of negligence exist is still recognized in a number
of jurisdictions, particularly in regard to the distinction between ordinary and gross negligence. Furthermore, leg
islators have not been dissuaded from using the degrees of
negligence concept when it is helpful to achieve a legisla
tive purpose." 57A Am. Jur. 2d Negligence  233, at 274
(1989).
degree of proof. 1. See BURDEN OF PROOF. 2. BURDEN
OF PRODUCTION.
degree of relationship. See DEGREE (5).
de haerede deliberando illi qui habet custodiam terrae
(dee hi-ree-dee di-lib-<)-ran-doh iI-I kWI hay-b<)t
k<)-stoh-dee-<)m ter-ee), n. [Law Latin "for delivering
an heir to him who has wardship ofthe land"] Hist. A
writ ordering the sheriff to deliver an heir to a person
who had wardship.
de haerede rapto et abducto (dee hi-ree-dee rap-toh
et ab-dak-toh), n. [Law Latin "of an heir ravished and
carried away") Hist. A writ allowing a lord to recover a


h), n. [Law Latin "of an heir ravished and
carried away") Hist. A writ allowing a lord to recover a
ward who had been taken by another person.
de haeretico comburendo (dee hi-ret-i-koh kom-by;)
ren-doh), n. [Law Latin "of burning a heretic"] Hist.
1. A writ ordering the execution by burning of a con
victed heretic who refused to recant, or was convicted
ofheresy again after recanting. Also termed writ de
haeretico comburendo.
"[W]e find among our ancient precedents a writ de haeretico
comburendo, which is thought by some to be as ancient as
the common law itself. However, it appears from thence,
that the conviction of heresy by the common law was not
in any petty ecclesiastical court, but before the archbishop
himself in a provincial synod; and that the delinquent was
delivered over to the king to do as he should please with
him: so that the crown had a control over the spiritual
power, and might pardon the convict by issuing no process
against him; the writ de haeretico comburendo being not a
writ of course, but issuing only by the special direction of
the king in counciL" 4 William Blackstone, Commentaries
on the Laws of Eng/and 46-47 (1769).
"But the case of Sawtre (1400) is a clear case in which the
rule of the canon law was applied. He was convicted of
heresy before the Bishop of Norwich and recanted his
heresy. He fell again into heresy, and was condemned by
the archbishop and his provincial Council, as a relapsed
heretic. On this conviction the king issued a writ de
haeretico comburendo. This case clearly shows that the
common law recognized the rule of the canon law. "
1 William Holdsworth, A History of English Law 617 (7th
ed. 1956).
2. The first English penal law against heresy, enacted
in 1401 (2 Hen. 4, ch. 15). The law authorized the
burning of defendants who relapsed or refused to
abandon their heretical opinions.
'The first English statute that denounced the penalty
of death against heretics was passed in the year 1401.
Whether before that statute the law that was in force in
our land demanded or suffered that such persons should
be burnt is a question that has been eagerly debated; on it
in the days of Elizabeth and James I depended the lives of
Anabaptists and Arians; it has not yet lost its interest; but
it is a question that buzzes in a vacuum, for until Lollardy
became troublesome there was too little heresy in England
to beget a settled course of procedure." 2 Frederick Pollock
& Frederic Maitland, The History of English Law Before the
Time ofEdward /544 (1899).
deherison (dee-her-i-z<)n). See DISINHERITANCE.

490 de homagio respectuando
de homagio respectuando (dee hd-may-jee-oh ri-spek
tyoo-an-doh), n. [Law Latin "for respiting or postpon
ing homage"] Hist. A writ to postpone an homage. See
HOMAGE.
de homine capto in withernamium (dee hom-d-nee
kap-toh in with-ar-nay-mee-om), n. [Law Latin "for
taking a man in withernam"] Hist. A writ to seize and
jail a person who took a bondman out ofthe county to
keep the bondman from being replevied . The defen
dant was jailed without bail until the bondman was
returned. See WITHERNAM.
de homine replegiando (dee hom-o-nee ri-plee-jee-an
doh), n. (Law Latin "for replevying a man"] A writ to
replevy a person out of jail or out of the custody of
another person after giving security that the replevied
person will answer any charge.
"The writ de homine replegiando lies to replevy a man out
of prison, or out of the custody of any private person, (in
the same manner that chattels taken in distress may be
replevied ...) upon giving security to the sheriff that the
man shall be forthcoming to answer any charge against
him. And, if the person be conveyed out of the sheriff's
jurisdiction, the sheriff may return that he is eloigned ...
upon which a process issues ... to imprison the defendant
himself, without bail ... till he produces the party. But this
writ is guarded with so many exceptions, that it is not an
effectual remedy in numerous instances, especially where
the crown is concerned." 3 William Blackstone, Commentar
ies on the Laws ofEngland 129 (1768).
dehors (do-hor or da-horz). [Law French] (I8c) Outside;
beyond the scope of <the court cannot consider the
document because it is dehors the record>.
de identitate nominis (dee I-den-to-tay-tee nom-a-nis),
n. [Law Latin "of identity of name"] Hist. A writ to
free a person mistaken for someone else with the same
name and then falsely arrested and imprisoned. -Also
termed de idemptitate nominis.
de idiota inquirendo (dee id-ee-oh-t;:J in~kwI-ren-doh
or in-kwa-ren-doh). [Latin "of inquiring concerning
an idiot"] Hist. A writ directing the sheriff to open an
inquiry before a jury of 12 into whether a person is an
idiot, that is, mentally incapable of managing his or
her personal affairs.
Dei gratia (dee-r gray-shee-a). [Latin] By the grace of
God. This phrase was often used in rulers' titles to
show that their authority was by divine right. It was
also formerly used in titles of magistrates and other
officers.
de iis qui ponendi sunt in assisis (dee I-OS kWI pa-nen-dI
sant in o-sl-zn), n. [Law Latin "of those who are to
be put on assises"] Hist. The statute establishing juror
qualifications. 21 Edw. 1.
dei judicium (dee-I joo-dish-ee-am). [Latin "God's
judgment"] A trial by ordeaL See ORDEAL.
de incremento (dee in-kra-men-toh). [Law Latin "of
increase"] Hist. Additional. -Costs de incremento are
costs awarded by a court in addition to costs awarded
by the jury.
de industria (dee in-d;)s-tree-o). [Latin] Hist. Design
edly; on purpose. de ingressu (dee in-gres-[yJoo), n. [Law Latin "of entry"]
Hist. A writ allOWing entry into lands or tenements.
de injuria (dee in-joor-ee-d). [Law Latin "of injury"]
Hist. Of injury.  A traverse de injuria, contained in a
replication in a trespass action, denies the defendant's
excuse for the wrong done. See TRAVERSE.
de inojficioso testamento (dee in-a-fish-ee-oh-soh tes
t;:J-men-toh). [Latin] Roman law. Concerning an inof
ficious or undutiful will. See INOFFICIOSUS; QUERELA
INOFFICIOSI TESTAMENT!.
de integro (dee in-ta-groh), n. [Latin] Again; a second
time.
de intrusione (dee in-troo-zhee-oh-nee), n. [Law Latin "of
intrusion"] Hist. A writ available to a reversioner when
the tenant dies and a stranger occupies the land.
dejeration (dej-o-ray-sh;:Jn). The act of taking a solemn
oath.
de jure Cdi juur-ee also dee or day), adj. [Law Latin "as a
matter oflaw"] (l7c) Existing by right or according to
law <de jure segregation during the pre-Brown era>. Cf.
DE FACTO; DE GRATIA.
de jure corporation. See CORPORATION.
de jure government. See GOVERNMENT.
de jure officer. See officer de jure under OFFICER (1).
de jure segregation. See SEGREGATION (2).
de lana caprina (rixari) (dee lay-nd ko~prI-no rik-sair-l).
[Latin] Hist. To contend about a goat's hair; to dispute
about nothing.
delantal (di-lan-t;:JI). [Old English] Hist. See UTLAND.
de la plus belle (da lah ploo bel), adj. [Law French]
Hist. Ofthe most fair . This term described a form of
dower assigned out of the husband's best tenements.
The term was used in military tenures but was abol
ished by statute. 12 Car. 2, ch. 24. -Also termed de
Ia pluis beale.
delate (di-Iayt), vb. To accuse, to inform against, to
denounce in court, esp. a Scottish ecclesiastical
court. -delation, n. delator, n.
de latere (dee lat-ar-eel. [Latin] Of collaterals; from the
side.
delatio (di-Iay-shee-oh), n. [ff. Latin deferre "to
denounce"] Roman & dvillaw. 1. An accusation. 2.
Information.
delator (di-Iay-tor), n. [Latin) Roman law. 1. An informer.
2. An accuser; esp., a person who made a practice of
informing on and prosecuting others, esp. for fiscal
offenses. -This was at first encouraged, but later the
informer became subject to the death penalty. PI. dela
tores.
delatura 	 (del-a-tyoor~a), n. [fro Latin deferre "to
denounce"] Hist. A reward given to an informer.
Delaware trust. See asset-protection trust under TRUST
(3)

delay, n. (13c) 1. The act of postponing or slowing
<the continuance was sought for no purpose other
than delay>. Cf. VEXATIOUS DELAY. 2. An instance at
which something is postponed or slowed <the delay
in starting the trial made it difficult for all ofthe wit
nesses to attend>. 3. The period during which some
thing is postponed or slowed <during the delay, the case
settled>. 4. Civil law. The period within which a party
to a suit must take some action, such as perfecting an
appeal or responding to a written-discovery request
<the delay for responding to written interrogatories is
15 days after the date they are served on the respond
ing party:>.
delayed appeal. See APPEAL.
delayed-compHance order. Environmental law. An order
issued by the Environmental Protection Agency or by a
state agency to an existing source ofpollutants, whereby
the deadline for complying with an implementation
plan is postponed. See IMPLEMENTATION PLAN.
delayed funds availability. A hold that a bank places on
uncollected funds that are represented by a deposited
check. Abbr. DFA.
delayed rental. See RENTAL.
delayed sentence. See SENTENCE.
delay rental. Oil &gas. A payment from the lessee to the
lessor made to maintain the mineral lease from period
to period during the primary term without an obliga
tion to drill. See DRILLING-DELAY RENTAL CLAUSE; "or"
lease, paid-up lease, "until" lease under LEASE.
del bien estre (del been es-t;:lr). [Law French] Rist. Of
well-being. See DE BENE ESSE.
del credere (del kred-;:l-ray or kray-da-ray), adj. [Italian]
(l8c) Ofbelief or trust.
"'Del credere' agents for the sale of goods, in consideration
of a higher payment than usual, become responsible for the
solvency of the person to whom they sell them." Thomas
E. Holland, The Elements ofJurisprudence 304 (13th ed.
1924).
del credere agent. See AGENT (2).
del credere bailiff. See FACTOR (2).
del credere commission. A factor's commission that is
increased because the factor guarantees the payment to
the principal ofall debts that become due through the
agency relationship. [Cases: Factors 44.)
del credere factor. See del credere agent under AGENT.
delectus personae (di-Iek-t;:ls p;:lr-soh~nee). [Latin "choice
of the person] The rule that when personal relations
are important. a person cannot be compelled to asso
ciate with another person. -Based on this principle.
a partner has the right to accept or reject a candidate
proposed as a new partner.
delegable duty. See DUTY (1).
delegate (del-;:l-git). n. (lSc) 1. One who represents or acts
for another person or a group. 2. Parliamentary law.
A voting member ofa convention, whether entitled to
vote as an elected or appointed delegate (sense 1), as an upgraded alternate, or ex officio. See CONVENTION (4);
ALTERNATE; EX OFFICIO.
instructed delegate. A delegate bound to vote accord
ing to a constituency's expressed wishes. Cf. unin
structed delegate; UNIT RULE (2).
uninstructed delegate. A delegate who is not instructed
and may therefore vote according to his or her con
science. Cf. instructed delegate.
delegate assembly. See CONVENTION (4).
delegated legislation. See REGULATION (3).
delegated power. See POWER (3).
delegatee (del-a-g;l-tee). (1875) An agent or representa
tive to whom a matter is delegated.
delegation, n. (1612) 1. The act ofentrusting another with
authority or empowering another to act as an agent or
representative <delegation of contractual duties>. 2.
A group of representatives <a large delegation from
Texas>. delegate (del-;:l-gayt) (for sense 1), vb.
delegable (del-a-g;:l-b;:ll)


gayt) (for sense 1), vb.
delegable (del-a-g;:l-b;:ll) (for sense 1), adj.
delegation doctrine. (1883) Constitutional law. The
principle (based on the separation-ai-powers concept)
limiting Congress's ability to transfer its legislative
power to another governmental branch, esp. the execu
tive branch. -Delegation is permitted only ifCongress
prescribes an intelligible principle to guide an executive
agency in making policy. -Also termed nondelegation
doctrine. [Cases: Constitutional Law (:::::>2400,2407.]
delegation ofduties. (1893) Contracts. A transaction by
which a party to a contract arranges to have a third
party perform the party's contractual duties.
delegation of powers. (1854) A transfer of authority by
one branch ofgovernment to another branch or to an
administrative agency. See DELEGATION DOCTRINE.
[Cases: Constitutional Law C=c2333.]
de legatis etfidei commissis (dee Ii-gay-tis et fI-dee-I
k;:l-mis-is). [Latin] Oflegacies and trusts. -This is a
title in the Pandects.
delegator (del-i-gay-t;:lr or -tor). One who delegates (a
responsibility, etc.) to another.
de lege ferenda (dee lee-jee f;:l-ren-d;:l). [Latin "from law
to be passed"] Int'llaw. A proposed principle that might
be applied to a given situation instead or in the absence
of a legal principle that is in force. Cf. DE LEGE LATA.
de lege lata (dee lee-jee lay-t;:l). [Latin "from law passed"]
Int'llaw. 1. Existing law. 2. The principle that a court
should decide based on actual law and not on how it
thinks the law ought to be. Cf. DE LEGE FERENDA.
deleterious (del-i'l-teer-ee-i'ls), adj. (1643) 1. Poisonous
<deleterious toxins>. 2. Unwholesome; psychologically
or physically harmful <deleterious influence>.
de libera fa Ida (dee lib-<>r-a fal-da or fawl-d;:l), n. [Law
Latin "of free fold"] Hist. A writ allowing a free feeding,
esp. of sheep on land. -This was a form ofquod per
mittat.

492 de libera piscaria
de libera piscaria (dee lib-ar-a pi-skair-ee-d), n. [Law
Latin "of free fishery"] Hist. A writ allowing an exclu
sive right to fish on public navigable water . This was
a form of quod permittat.
deliberate (di-Iib-[d]-rit), adj. (l5c) 1. Intentional; pre
meditated; fully considered. 2. Unimpulsive; slow in
deciding.
deliberate (di-lib-d-rate), vb. (Of a court, jury, etc.)
to weigh and analyze all the evidence after closing
arguments <the jury deliberated for 12 hours before
reaching a verdict>.
deliberate elicitation. (1966) Criminal procedure. The
purposeful yet covert drawing forth of an incrimi
nating response (usu. not during a formal interroga
tion) from a suspect whose Sixth Amendment right
to counsel has attached but who has not waived that
right.  Deliberate elicitation may occur, for example,
when a police officer engages an arrested suspect in
conversation on the way to the police station. Deliber
ate elicitation violates the Sixth Amendment. Massiah
v. United States, 377 U.S. 201, 84 S.Ct. 1199 (1964). See
MASSIAH RULE.
deliberate indifference. See INDIFFERENCE.
deliberate-indifference instruction. See JEWELL
INSTRUCTION.
deliberate speed, with all. (l8I7) As quickly as the main
tenance oflaw and order and the welfare ofthe people
will allow, esp. with respect to the desegregation of
public schools. Brown v. Board ofEduc., 347 U.S. 483,
74 S.Ct. 686 (1954). [Cases: Schools C:::> 13(9).]
deliberation, n. (l4c) The act of carefully considering
issues and options before making a decision or taking
some action; esp., the process by which a jury reaches
a verdict, as by analyzing, discussing, and weighing
the evidence. See CONSIDERATION (3). [Cases: Criminal
Law <'::=857(1); Federal Civil Procedure G=:)1974; Trial
~'=>306.1 deliberate (di-lib-a-rayt), vb.
deliberative assembly. See ASSEMBLY.
deliberative-process privilege. (1977) The principle
that a decision-maker's thoughts and how they led
to a decision are not subject to revelation or scrutiny.
See U.S. v. Morgan, 313 U.S. 409, 61 S.Ct. 999 (1941).
 An exception to the rule may be allowed if a party
can clearly show that the decision resulted from bias,
bad faith, misconduct, or illegal or unlawful action.
The privilege is meant to encourage open and inde
pendent discussion among those who develop govern
ment policy. [Cases: Privileged Communications and
Confidentiality C:::>361.] Also termed mental-process
privilege.
de libero homine exhibendo (dee lib-<lr-oh hom-d-nee
ek-si-ben-doh). [Latin "for the production of a free
man"] Roman law. An interdict requiring a free person
to be produced before a magistrate.
de libero passagio (dee lib-dr-oh p<l-say-jee-oh), n.
[Law Latin "of free passage"] Hist. A writ allOWing free passage over water . This was a form ofquod per
mittat.
de libertate probanda (dee Iib-ar-tay-tee proh-ban-d<l),
n. [Law Latin "for proving liberty"] Rist. A writ direct
ing a sheriff to take security from a person accused of
being a villein and to protect that person from harass
ment until the person's status was determined by the
justices ofassize.
de libertatibus allocandis (dee lib-dr-tay-td-bas al-<'J
kan-dis), n. [Law Latin "for allowing liberties"] Hist.
A writ allowing a person entitled to certain liberties
to obtain them.
de licentia transfretandi (dee h-sen-shee-a trans-fra
tan-dr), n. [Law Latin "ofpermission to cross the sea"]
Hist. A writ ordering wardens ofseaports, on certain
conditions, to permit any person named in the writ to
cross the sea.
delict (di-likt), n. [Latin delictum "an offense"] (l6c)
Roman & civil law. A violation of the law; esp., a
wrongful act or omission giving rise to a claim for
compensation; TORT. Also termed (in Roman law)
delictum; (in French law) delit. [Cases: Torts G=::> 107.]
"A delict is a civil wrong. It is an infringement of another's
interests that is wrongful irrespective of any prior contrac
tual undertaking to refrain from it though there may also
be one. It entitles the injured party to claim compensation
in civil proceedings though criminal proceedings aimed
at punishing the wrongdoer may also ensue." 1 P.Q.R.
Boberg, The Law ofDelict 1 (1984).
private delict. A wrong regarded primarily as a matter
ofcompensation between individuals.
public delict. A wrong for which the community as a
whole takes steps to punish the offender. Cf. public
tort under TORT.
quasi-delict. 1. Roman law. A residuary category of
private wrongs, characterized by either vicarious or
strict liability.
"QUASIDELICT . Justinian enumerates four cases of obliga
tions said to arise quasi ex delicto. The implication seems
to be that in all of them the law creates a liability though
the defendant may not in fact be to blame. The cases are
the following:- (1) The judge who 'makes the case his
own' . _ incurs a penalty fixed by the magistrate at dis
cretion .... (2) If anything was thrown, or poured, from
an upper room ... the occupier was liable for double the
damage .... (3) If a thing was kept placed or suspended
over a way used by the public ... there was a penalty ...
which might be recovered from the occupier .... (4) Ship
owners, innkeepers and stable keepers were liable for
damage or theft committed by slaves or free persons in
their employ ...." R.W. Lee, The Elements of Roman Law
401-02 (4th ed. 1956).
2. See quasi-offense under OFFENSE (2). 3. Scots law.
Tortious conduct that is negligent, as opposed to
intentional.
delictal. See DEUCTUAL.
deliction (di-lik-shdn). (1966) The loss ofland by gradual,
natural changes, such as erosion resulting from a
change in the course of a river or stream. Cf. ACCRE
TION (1); ALLUVION; AVULSION (2); EROSION. [Cases:

493
Navigable Waters Waters and Water Courses
~~93.]
delictual (di-lik-cha-wal), ad). Of, relating to, or involv
ing a delict; TORTIOUS. Also termed delictal.
delictual fault. See FAULT.
delictum. See DELICT.
deIimination. The act of marking a boundary or fixing
a limit.
delimit (di-lim-it), vb. (1852) To mark (a boundary); to
fix (a limit).
delimitation. A fixing oflimits or boundaries.
delineational gerrymandering. See GERRYMANDER
ING.
delinquency, n. (17c) 1. A failure or omission; a violation
ofa law or duty. See JUVENILE DELINQUENCY. 2. A debt
that is overdue in payment.
delinquency charge. See CHARGE.
delinquency jurisdiction. See JURISDICTION.
delinquent, adj. (17c) 1. (Of a person) failing to perform
an obligation. 2. (Of a person) guilty ofserious antiso
cial or criminal conduct. 3. (Of an obligation) past due
or unperformed.
delinquent, n. (i5c) 1. A person who fails to perform an
obligation. 2. A person guilty of serious antisocial or
criminal conduct. 3. JUVENILE DELINQUENT.
delinquent child. See CHILD.
delinquent minor. See JUVENILE DELINQUENT.
delinquent tax. See TAX.
de liquido in liquidum (dee lik-wi-doh in Uk-wi-dam).
[Law Latin] Scots law. Ofa liquid claim against a liquid
claim. -The phrase appeared in reference to the extin
guishment of a claim by setoff.
delirium. (l6c) 1. A disordered mental state, often occur
ring during illness. 2. Exaggerated excitement. 3. A
delusion; a hallucination.
delirium tremens. An illness characterized by hallucina
tions and violent trembling, induced by excessive con
sumption ofalcohol over a long period. -Also termed
mania a potu; settled insanity. Abbr. d.t:s.
delisting, n. The suspension of the privilege ofhaving a
security listed on an exchange. -Delisting results from
failing to meet the exchange's listing requirements, as
by not complying with the minimum net-asset require
ment. Cf. DEREGISTRATION. [Cases: Exchanges
13.10.] delist, vb.
delit. See DELICT.
deliverance. (14c) 1. A jury's verdict. 2. A judicial opinion
or judgment. 3. A court's order directing that a person
in custody be released; esp., such an order by an eccle
siastical court. -Also termed writ ofdeliverance. 4.
Archaic. In a replevin action, a writ ordering the rede
livery of goods to the owner.
second deliverance. Hist. A second replevin remedy
after the plaintiff has been nonsuited and the delivered duty unpaid
distrained property has been returned to the defen
dant. -Also termed writ ofsecond deliverance.
"And at the common law, the plaintiff might have brought
another replevin, and so in infinitum, to the intolerable
vexation of the defendant. Wherefore the statute of Westm.
2, c. 2 restrains the plaintiff, when nonsuited, from suing
any fresh replevin, but allows him a judicial writ issuing out
of the original record, and called a writ of second deliver
ance, in order to have the same distress again delivered
to him, on giving the like security as before. And, if the
plaintiff be a second time nonsuit, or if the defendant has
judgment upon verdict ... he shall have a writ or rerurn
irreplevisable; after which no writ of second deliverance
shall be allowed." 3 William Blackstone, Commentaries on
the Laws ofEngland 150 (1767).
5. Such a release (as in sense 3) or redelivery (as in sense
4).
delivered at frontier. A mercantile-contract term allo
cating the rights and duties of the buyer and the seller
of goods with respect to delivery, payment, and risk
Ofl05S, whereby the seller must (1) clear the goods for
export, (2) arrange and pay for transportation, and (3)
deliver the goods to a specified place on the importing
nation's border. -The seller's delivery is complete (and
the risk of loss passes to the buyer) when the goods
arrive at the deSignated point and are placed at the
disposal of the buyer. This


buyer) when the goods
arrive at the deSignated point and are placed at the
disposal of the buyer. This term is generally used when
the delivery place is on land, but it places no explicit
restrictions on the mode of carriage. Ifthe delivery
place is a border port and delivery is complete either
onboard or alongside the vessel, the term delivered ex
ship or delivered ex quay is preferred. -Abbr. DAF. Cf.
DELIVERED EX SHIP; DELIVERED EX QUAY.
delivered duty paid. A mercantile-contract term allo
cating the rights and duties of the buyer and the seller
of goods with respect to delivery, payment, and risk
ofloss, whereby the seller must (1) clear the goods for
export, (2) bear the costs of carriage, (3) pay the buyer's
import duties, and (4) make the goods available to the
buyer on board the carrier at the destination. -TIle
seller's delivery is complete (and the risk of loss passes
to the buyer) when the seller's carrier arrives at the
agreed destination. This term is generally used when
the delivery place is on land, but it places no explicit
restrictions on the mode of carriage. If the delivery
point is a port and delivery is complete either onboard
or alongside the vessel, the term delivered ex ship or
delivered ex quay is preferred. Abbr. DDP. Cf. DELIV
ERED DUTY UNPAID; DELIVERED EX SHIP; DELIVERED
EX QUAY.
delivered duty unpaid. A mercantile-contract term
allocating the rights and duties of the buyer and the
seller of goods with respect to delivery, payment, and
risk ofloss, whereby the seller must (1) clear the goods
for export, (2) bear the costs of carriage (apart from
unloading charges and import duties), and (3) make
the goods available to the buyer on board the carrier at
the destination. -The seller's delivery is complete (and
the risk ofloss passes to the buyer) when the seller's
carrier arrives at the agreed destination. The buyer is
responsible for all import duties. This term is generally

used when the delivery place is on land, but it places
no explicit restrictions on the mode of carriage. Ifthe
delivery point is a port and delivery is complete either
onboard or alongside the vessel, the term delivered ex
ship or delivered ex quay is preferred. -Abbr. DDU.
Cf. DELIVERED DUTY PAID; DELIVERED EX SHIP; DELIV
ERED EX QUAY.
delivered ex quay. A mercantile-contract term allocat
ing the rights and duties of the buyer and the seller
of goods with respect to delivery, payment, and risk
ofloss, whereby the seller must (1) dear the goods for
export, (2) bear the costs oftransportation to the port
named by the importing buyer, and (3) place the goods
alongside the ship in the port of destination. -The
seller's delivery is complete (and the risk ofloss passes
to the buyer) when the goods are unloaded in the des
tination port. This term is used only when goods are
transported by sea or inland waterway. -Abbr. DEQ.
Cf. DELIVERED EX SHIP; FREE ALONGSIDE SHIP.
delivered ex ship. A mercantile-contract term allocat
ing the rights and duties of the buyer and the seller
of goods with respect to delivery, payment, and risk
of loss, whereby the seller must clear the goods for
export and bear the costs oftransportation (apart from
unloading charges and import duties) to the importing
nation's port ofdestination . The seller's delivery is
complete (and the risk ofloss passes to the buyer) when
the seller's carrier arrives at the destination port. This
term is used only when goods are transported by sea
or inland waterway. Abbr. DES. Cf. DELIVERED EX
QUAY; FREE ON BOARD.
delivery, n. (15c) 1. The formal act oftransferring some
thing, such as a deed; the giving or yielding posses
sion or control ofsomething to another. 2. The thing so
transferred or conveyed. Cf. LIVERY. -deliver, vb.
absolute delivery. (1808) A delivery that is complete
upon the actual transfer of the instrument from the
grantor's possession. -Such a delivery does not usu.
depend on recordation.
actual delivery. (17c) The act ofgiving real and imme
diate possession to the buyer or the buyer's agent.
conditional delivery. (I8c) A delivery that passes pos
session subject to the happening of a specified event.
 Possession passes immediately; title remains con
ditional.
constructive delivery. (18c) An act that amounts to
a transfer of title by operation of law when actual
transfer is impractical or impossible . For example,
the delivery of a deposit-box key by someone who
is ill and immobile may amount to a constructive
delivery of the box's contents even though the box
may be miles away. For the three traditional types of
constructive delivery, see ATTORNMENT; CONSTITU
TUM POSSESSORIUM; TRADITIO BREVI MANU.
good delivery. Securities. A security's delivery when the
certificate (1) is in good condition, (2) belongs to the
person transferring it, (3) is properly indorsed, and (4) is accompanied by any legal documents necessary
for its negotiability.
jail delivery. See JAIL DELIVERY.
second delivery. 07c) A legal delivery by the deposi
tary of a deed placed in escrow. lCases: Deeds (;:::>
58; Deposits and Escrows (;:::>21.]
symbolic delivery. (I8c) The constructive delivery ofthe
subject matter ofa sale or gift by the actual delivery of
an article that represents the item, that renders access
to it possible, or that provides evidence ofthe title to
it, such as the key to a warehouse or a bill oflading for
goods on shipboard. [Cases: Sales 162.]
unconditional delivery. (I8c) A delivery that immedi
ately passes both possession and title and that takes
effect immediately.
delivery bond. Seeforthcoming bond under BOND (2).
delivery in escrow. (1842) The physical transfer of some
thing to an escrow agent to be held until some condi
tion is met, at which time the agent will release it. _ An
example ofsuch a delivery is a stock buyer's transfer of
cash to a bank that will give the seller the cash upon
receiving the stock certificates. This type of delivery
creates immediate conditional rights in the promisee.
The device may be used to create an option contract in
which the promisee has the option. See ESCROW. [Cases:
Deposits and Escrows 14.]
delivery ofdeed. (lSc) The placing ofa deed in the grant
ee's hands or within the grantee's control.  By this act,
the grantor shows an intention that the deed operates
immediately as a conveyance. A deed may also be held
to be delivered when the grantor manifests the inten
tion to complete the conveyance, regardless of actual
delivery. [Cases: Deeds (;:::>54-67.]
delivery order. A written order to deliver goods, directed
to a warehouseman, carrier, or other person who ordi
narily issues warehouse receipts or bills oflading. UCC
 7-1D2(l)(d).
de lucranda dote (dee loo-kran-dd doh-tee). [Latin "of
being enriched by the dowry"] Hist. A spousal agree
ment giving a husband the right to retain his wife's
dowry upon her death.
de lunatico inquirendo (dee loo-nat-;J-koh in-kw;J-ren
doh), n. [Law Latin "for inquiring about a lunatic"] Hist .
A writ or commission to determine whether a person is
a lunatic. -Also termed commission oflunacy.
demo abbr. DEMISE.
de magna assisa eligenda (dee mag-nd ;J-SI-Z;) el-i
;en-d;J), n. [Law Latin "of choosing the grand assize"]
Hist. A writ ordering a sheriff to summon 4 knights to
give oaths before the justices ofassize and then choose
12 more knights to form a grand assize to determine
who had the right in a writ of right.
demain. See DEMESNE.
de malo (dee mal-oh). [Law Latin] Of illness . This
term defined certain legal excuses, such as de malo lecti
("of illness in bed"), de malo veniendi ("of illness or

495
misfortune in coming where the court is"), and de malo
villae ("of illness in town where the court is").
demand, n. (l3c) 1. The assertion of a legal or proce
dural right.
contingent demand. A demand that cannot be fixed
because it depends on the occurrence of a contin
gency,
cross-demand, (18c) A party's demand opposing an
adverse party's demand. See COUNTERCLAIM; CROSS
CLAIM.
demand in reconvention. See reconventional demand.
incidental demand. Civil law. A plea by which a party
other than the plaintiff asserts a claim that is related
to the plaintiff's suit. -Examples include a cross
claim, a demand against a third party, an interven
tion, and a reconventional demand. La. Code Civ.
Proc. art. 1031.
legal demand. A lawful demand made by an autho
rized person.
main demand. Civil law. A plaintiff's principal or
primary claim against one or more defendants, con
tained in an original or validly amended pleading.
Also termed principal demand; principal action.
reconventional demand. Civil law. A plea by which a
defendant asserts any claim that it has against the
plaintiff, or any offset against the plaintiff's claim.
-This plea is similar to the common-law counter
claim. La. Code Civ. Proc. 1061 et seq. -Also termed
demand in reconvention.
2. Parliamentary law. A request, usu. invoking a right,
that must be granted on a Single member's motion.
See REQUEST. 3. A request for payment of a debt or an
amount due. 4. In economics, the intensity of buyer
pressure on the availability and cost of a commodity or
service. 3. A request for payment of a debt or an amount
due. [Cases: Bills and Notes <>393-399.]
personal demand. An in-person demand for payment
upon the drawer, maker, or acceptor of a bill or
note.
4. In economics, the intensity ofbuyer pressure on the
availability and cost of a commodity or service.
aggregate demand. 1. The total amount spent on goods
and services in an economy during a specific period.
2. The total demand for a firm's products and services
during a specific period.
derived demand. Product demand that is related to
another product's demand.
demand, vb. (14c) 1. To claim as one's due; to require; to
seek relief. 2. To summon; to call into court.
demandant. Archaic. The plaintiff in a real action (the
defendant being called a tenant). See real action under
ACTION.
demand clause. (1919) A provision in a note allOWing the
holder to compel full payment ifthe maker fails to meet
an installment. Cf. ACCELERATION CLAUSE. [Cases: Bills
and Notes de maritagio am;sso per defanam
demand deposit. See DEPOSIT (2).
demand draft. See Sight draft under DRAFT.
demand for document inspection. See REQUEST FOR
PRODUCTION.
demand for relief. See PRAYER FOR RELIEF.
demand in reconvention. See reconventional demand
under DEMAND.
demand instrument. (1924) An instrument payable on
demand, at Sight, or on presentation, as opposed to
an instrument that is payable at a set future date.
Also termed demand note. [Cases: Bills and Notes
129(3).]
demand letter. (1911) A letter by which one party
explains its legal position in a dispute and requests that
the recipient take some action (such as paying money
owed), or else risk being sued. _ Under some statutes
(esp. consumer-protection laws), a demand letter is a
prereqUisite for filing a lawsuit.
demand loan. See call loan under LOAN.
demand note. 1. See NDTE (1). 2. See DEMAND INSTRU
MENT.
demand of oyer. Hist. The assertion ofa party's right to
hear, read, or inspect a deed ofwhich profert is made
by the opposing party in a pleading. See OYER (3);
PROFERT.
demand ofview. Hist. In a real action, a request by a
defendant (called a tenant) to see the thing at issue
to ascertain its identity and the circumstances of the
claim. -If a real action was brought against a tenant
who did not know what land was at issue, the tenant
might demand a view. See VIEW (4).
demand-pull inflation. See INFLATION.
demand registration rights. See REGISTRATION RIGHTS.
demandress. Archaic. A female demandant. See DEMAN
DANT.
de manucaptione (dee man-ya-kap-shee-oh-nee), n.
[Law Latin "of manucaption"] Hist. A writ ordering
a sheriff to release on sufficient bail an accused felon
whose initial offer ofbail had been rejected.
de manutenendo (dee man-y<,Ha-nen-doh), n. [Law
Latin "of maintenance"] Hist. A writ against a person
who has wrongfully meddled in a lawsuit by provid
ing assistance to a party to continue the litigation. See
MAINTENANCE (6).
demarcation line. Int'I law. A provisional border haVing
the function ofseparating territories under different
jurisdictions, usu. established when the political situ
ation does not admit a final boundary arrangement.
Also termed line ofdemarcation.
demarche (day-mahrsh). [French "gait; walk"] An oral
or written diplomatic statement, esp. one containing
a demand, offer, protest, threat, or the like. Also
spelled demarche. See AIDE-ME MOIRE.
de maritagio amisso per defaltam (dee mar-