d Am. ed. 1919).
"[Promise] means not only the physical manifestations of
assurance by words or conduct, but also the moral duty to
make good the assurance by performance, If by reason of
other operative facts the promise is recognized as creating
a legal duty, the promise is a contract:' Samuel Williston,
A Treatise on the Law of Contracts  lA, at 4 (Walter H.E.
Jaeger ed., 3d ed, 1957).
"It is well to make clear two points at the outset .... The
first is that I do not believe that all promises are morally
binding; accordingly, I use the term 'promise' without
prejudging the question whether the promise creates
an obligation. The second is that, where a promise does
create an obligation, the reason for that may depend upon
whether the promise was explicit or implied. There is thUS,
in my view, a fundamental distinction between explicit
and implied promises, and when I use the word 'promise'
Without qualification, I normally mean an explicit promise."
P.S. Atiyah, Promises, Morais, and Law 8 (1981).
2. The words in a promissory note expressing the
maker's intention to pay a debt.  A mere written
acknowledgment that a debt is due is insufficient to
constitute a promise. [Cases: Bills and Notes C=>30.]
promise, vb.
aleatory promise (ay-lee-a-tor-ee). A promise condi
tional on the happening of a fortuitous event, or on
an event that the parties believe is fortuitous. [Cases:
Contracts (;::::>218.]
alternative promise. (l7c) A contractual promise to do
one oftwo or more things, anyone ofwhich qualifies
as consideration.
"A promise in the alternative may be made because each of
the alternative performances is the object of desire to the
promisee. Or the promisee may desire one performance
only, but the promisor may reserve an alternative which he
may deem advantageous. In either type of case the promise
is consideration if it cannot be kept without some action or
forbearance which would be consideration if it alone were
bargained for. But if the promisor has an unfettered choice
of alternatives, and one alternative would not have been
consideration if separately bargained for, the promise in
the alternative is not consideration." Restatement (Second)
of Contracts  77 cmt. b (1981).
bare promise. See gratuitous promise.
collateral promise. A promise to guarantee the debt of
another. made primarily without benefit to the party
making the promise . Unlike an original promise,
a collateral promise must be in writing to be enforce
able. See MAIN-PURPOSE RULE. [Cases: Guaranty(;::::>
1.] conditional promise. (l6c) A promise that is condi
tioned on the occurrence of an event other than the
lapse oftime <she made a conditional promise to sell
the gold on April 2 unless the price fell below $300
an ounce before that time> . A conditional promise
is not illusory as long as the condition is not entirely
within the promisor's control. [Cases: Contracts C=>
58,218.]
corresponding promise. A mutual promise calling for
the performance ofan act substantially similar to the
act called for by the other mutual promise, both acts
being in pursuit of a common purpose.
counterpromise. See COUNTERPROMISE.
dependent promise. (1829) A promise to be performed
by a party only when another obligation has first been
performed by another party. [Cases: Contracts
173,278(1).]
divisible promises. Promises that are capable of being
divided into independent parts.
false promise. A promise made with no intention of
carrying it out. Cf. promissory fraud under FRAUD.
fictitious promise. See implied promise.
gratuitous promise. (l7c) A promise made in exchange
for nothing; a promise not supported by consider
ation. A gratuitous promise is not ordinarily legally
enforceable. -Also termed bare promise; naked
promise. [Cases: Contracts
illusory promise. (1841) A promise that appears on its
face to be so insubstantial as to impose no obligation
on the promisor; an expression cloaked in promis
sory terms but actually containing no commitment
by the promiSOr.  An illusory promise typically,
by its terms, makes performance optional with the
promisor. For example, if a guarantor promises to
make good on the principal debtor's obligation "as
long as I think it's in my commercial interest," the
promisor is not really bound. [Cases: Contracts
10(1).]
"An apparent promise which, according to its terms, makes
performance optional with the promisor no matter what
may happen, or no matter what course of conduct in other
respects he may pursue, is in fact no promise. Such an
expression is often called an illusory promise:' Samuel Wil
liston, A Treatise on the Law ofContracts  1A, at 5 (Walter
H.E. Jaeger ed., 3d ed. 1957).
implied promise. (I8c) A promise created by law to
render a person liable on a contract so as to avoid
fraud or unjust enrichment. Also termed fictitious
promise. [Cases: Implied and Constructive Contracts
C=t.J
"Under some circumstances the promise inferred is called
an implied promise and in others it is referred to as a con
structive promise. But whichever conclUSion is reached, the
result is the same. In other words an implied promise and a
constructive promise are not treated differently. The theo
retical difference between the two is that a promise implied
from the conduct of the parties arises by construction of
law, only when justice requires it under the circumstances."
John D, Calamari &Joseph M. Perillo, The Law ofContraas
 4-12, at 234-35 (3d ed. 1987).

1333
independent promise. See unconditional promise.
marriage promise. Family law. A betrothal; an engage
ment to be married. -Also termed agreement to
marry; promise to marry; promise ofmarriage. [Cases:
Breach of Marriage Promise (;::> L)
mutualpromises. (16c) Promises given Simultaneously
by two parties, each promise serving as consideration
for the other. See bilateral contract under CONTRACT.
nakedpromise. See gratuitous promise.
newpromise. A previously unenforceable promise that
a promisor revives and agrees to fulfill, as when a
debtor agrees to pay a creditor an amount discharged
in the debtor's bankruptcy.
original promise. A promise to guarantee the debt of
another, made primarily for the benefit of the party
making the promise . An original promise need not
be in writing to be enforceable. See MAIN-PURPOSE
RULE. [Cases: Frauds, Statute of(;=>23.)
promise implied infact. (1909) A promise existing by
inference from the circumstances or actions of the
parties. See implied promise. [Cases: Contracts
27.)
promise in consideration ofmarriage. A promise
for which the actual performance of the marriage is
the consideration, as when a man agrees to transfer
property to a woman if she will marry him. A
promise to marry, however, is not considered a
promise in consideration ofmarriage. [Cases: Breach
of Marriage Promise (;::>5.)
promise in restraint oftrade. A promise whose per
formance would limit competition in any business
or restrict the promisor in the exercise of a gainful
occupation. Such a promise is usu. unenforceable.
[Cases: Contracts (;::> 116.]
remedial promise. A seller's promise to repair or
replace goods or to refund the price if the goods (1)
do not conform to the contract or to a representation
at the time ofthe delivery ofthe goods, (2) conform at
the time ofdelivery but later fail to perform as agreed,
or (3) contain a defect. DCC  2-IQ2(a)(31).
unconditional promise. (1802) A promise that either is
unqualified or requires nothing but the lapse oftime
to make the promise presently enforceable . A party
who makes an unconditional promise must perform
that promise even though the other party has not
performed according to the bargain. -Also termed
independent promise. [Cases: Contracts (;::>218.]
voidable promise. A promise that one party may, under
the law, declare void by reason of that party's inca
pacity or mistake, or by reason of the fraud, breach,
or other fault of the other party. [Cases: Contracts
(;::>9S.]
promisee (prom-is-ee). (lSc) One to whom a promise
is made.
promise not to compete. See noncompetition covenant
under COVENANT (1). promoting prostitution
promise of marriage. See marriage promise under
PROMISE.
promise to marry. See marriage promise under
PROMISE.
promisor (prom-is-or). (17c) One who makes a promise;
esp., one who undertakes a contractual obligation.
promissor (prom-is-"r). [Latin] Civil law. 1. A promisor;
specif., a party who undertakes to do a thing in response
to the interrogation ofthe other party (the stipulator).
2. See REUS PROMITTENDI.
promissory, adj, (15c) Containing or consisting of a
promise <the agreement's promissory terms>.
promissory condition. See CONDITION (2).
promissory estoppel. See ESTOPPEL.
promissory fraud. See FRAUD.
promissory note. See NOTE (1).
promissory oath. See OATH.
promissory representation. See REPRESENTATION (I),
promissory restraint. An attempt by an otherwise effec
tive conveyance or contract to discourage a later con
veyance by imposing contractual liability on anyone
who makes a later conveyance. [Cases: Perpetuities
(;::>6(1).]
promissory warranty. See WARRANTY (3).
pro modo admissi (proh moh-doh ad-mis-I). [Latin]
Hist. According to the measure ofthe offense.
promoter. (14c) 1. A person who encourages or incites.
2. A founder or organizer ofa corporation or business
venture; one who takes the entrepreneurial initiative
in founding or organizing a business or enterprise.
Formerly also termed projector. [Cases: Corporations
(;::>30.]
''The complete judicial acceptance of the term 'promoter' is
a matter of comparatively recent date. In some of the early
cases. persons engaged in the formation of a corporation
are spoken of as 'projectors.' Other cases of about the
same period, though recognizing the obligations flowing
therefrom, do not give any name to the relation in which
such persons stand to the contemplated company. The
word promoter, while undoubtedly employed in common
parlance before that time, does not seem to have been
used in any reported decision until after it had been used,
and for the purposes of the act defined, in the Joint Stock
Companies Act of 1844.. , . [AI person may be said to be
a promoter of a corporation if before its organization, he
directly or indirectly solicits subscriptions to its stock, or
assumes to act in its behalf in the purchase of property,
or in the securing of its charter, or otherwise assists in its
organization." Manfred W. Ehrich, The Law of Promoters
 1. at 2-3;  13, at 15 (1916).
"A promoter is a person who takes the initiative in develop
ing and organizing a new business venture. A promoter may
act either alone or with copromoters. The term 'promoter'
is not one of opprobrium; indeed, the promoter is often
an aggressive, imaginative entrepreneur who fulfills the
essential economic function of taking an idea and creating
a profitable business to capitalize on the idea." Robert W.
Hamilton, The Law of Corporations in a Nutshell 64 (3d
ed. 1991).
promoting prostitution. See PANDERING (1).

prompt, vb. To incite, esp. to immediate action.
promulgare (proh-mal-gair-ee), vb. [Latin] Roman law.
To promulgate; to make (a law) publicly known after
its enactment.
promulgate (pr::l-mal-gayt or prom-al-gayt), vb. (16c)
1. To declare or announce publicly; to proclaim. 2.
To put (a law or decree) into fOfce Of effect. 3. (Of an
administrative agency) to carry out the formal process
of rulemaking by publishing the proposed regulation,
inviting public comments, and approving or rejecting
the proposal. -promulgation (prom-al-gay-shan or
proh-m::ll-), n.
promulgation (prom-al-gay-sh;m or proh-mal-). The
official publication ofa new law or regulation, by which
it is put into effect.
promutullm (proh -myoo-choo-am). [Latin "as if lent"]
Civil law. A quasi-contract in which a person who
received money or property in error agrees to return
what was received to the person who paid it.
pronepos (proh-nep-ohs). [Latin] Roman & civil law. A
great-grandson. PI. pronepotes.
proneptis (proh-nep-tis). [Latin] Roman & civil law. A
great-granddaughter. PI. proneptes.
pro non adjecto (proh non a-jek-toh). [Latin] Hist. As not
added. _ For example, a nonessential deed provision
might be treated pro non adjecto.
pro non scripto (proh non skrip-toh). [Latin] As not
written; as though it had not been written. - The phrase
usu. referred to testamentary conditions that a court
would disregard because the conditions were impos
sible, illegal, or meaningless.
pronotary (proh-noh-ta-ree), n. First notary.
pronounce, vb. (14c) To announce formally <pronounce
judgment>.
pronunciation (pra-nan-


vb. (14c) To announce formally <pronounce
judgment>.
pronunciation (pra-nan-see-ay-shan). Archaic. A
sentence or decree.
pronurus (proh-na-ras). [Latin] Roman & civil law. The
wife ofa grandson or great-grandson. PI. pronurus.
proof, n. (l3c) 1. The establishment O[ refutation of
an alleged fact by evidence; the persuasive effect of
evidence in the mind ofa fact-finder. [Cases: Evidence
(;::=-584.] 2. Evidence that determines the judgment of
a court. 3. An attested document that constitutes legal
evidence.
affirmative proof. (18c) Evidence establishing the fact
in dispute by a preponderance ofthe evidence. [Cases:
Evidence C=99.]
conditional proof. (1931) A fact that amounts to
proof as long as there is no other fact amounting to
disproof. Also termed presumptive proal
double proof. (1955) L Bankruptcy. Proof ofclaims by
two Of more creditors against the same debt. _ This
violates the general rule that there can be only one
claim with respect to a single debt. [Cases: Bank
ruptcy (::::>2891.] 2. Evidence. Corroborating government evidence (usu. by two witnesses) required to
sustain certain convictions.
full proof. 1. Civil law. proof by two witnesses or by
public instrument. 2. Evidence that satisfies the minds
ofthe jury ofthe truth ofthe fact in dispute beyond a
reasonable doubt. [Cases: Evidence C= 584.]
literal proof. Civil law. Written evidence. Cf. testimo
nial prool
negative proof. (16c) Proof that establishes a fact by
showing that its opposite is not or cannot be true. Cf.
positive proof [Cases: Criminal LawC:::;)551; Evidence
(::::>586.]
positive proof. (l7c) Direct or affirmative proof. Cf.
negative proof [Cases: Criminal Law (::::>551; Evidence
(::::>586.]
preliminary proof. Insurance. The first proof offered
of a loss occurring under a policy, usu. sent in to the
underwriters with a notification of the claim. [Cases:
Insurance (;=.:::3164.]
presumptive proof. See conditional proof
proofbeyond a reasonable doubt. (1834) Proof that
precludes every reasonable hypothesis except that
which it tends to support. See REASONABLE DOUBT.
-Formerly, this standard required evidence to "estab
lish the truth of the fact to a reasonable and moral
certainty" and "proof to a moral certainty as distin
guished from an absolute certainty." Moral certainty
is no longer a synonym for proof beyond a reasonable
doubt. See Victor v. Nebraska, 511 U.S. 1,8, 12, 114
S.Ct. 1239, 1244, 1246 (1994). [Cases: Criminal Law
C='561.]
testimonial proof. Civil law. Proof by the evidence of
witnesses, rather than proof by written instrument.
Cf.literal proof
4. Scots law. A bench trial.
proof, burden of. See BURDEN OF PROOF.
proof brief. See BRIEF.
proof ofacknowledgment. (18c) An authorized officer's
certification -based on a third party's testimony
that the signature ofa person (who usu. does not appear
before the notary) is genuine and was freely made.
Also termed certificate ofproof See ACKNOWLEDGMENT
(5). [Cases: Acknowledgment (;::;)8-39.]
proof of claim. Bankruptcy. A creditor's written state
ment that is submitted to show the basis and amount of
the creditor's claim. PI. proofs ofclaim. [Cases: Bank
ruptcy (::::>2891-2904.]
informal proofofclaim. A proof of claim stating a
creditor's demand for payment and intent to hold the
debtor's bankruptcy estate liable, but that does not
comply with the Bankruptcy Code's form for proofs
of claim. - A late-filed proof of claim may be given
effect if the creditor had timely filed an informal proof
of claim. [Cases: Bankruptcy (::::>2902.]
proof of debt. The establishment by a creditor of a debt
in some prescribed manner (as by affidavit) as a first

step in recovering the debt from an estate or property;
PROOF OF CLAIM.
proof of loss. An insured's formal statement of loss
required by an insurance company before it will deter
mine whether the policy covers the loss. [Cases: Insur
ance (;:::c 3164.]
proof ofservice. (18c) 1. A document filed (as by a sheriff)
in court as evidence that process has been successfully
served on a party. -Also termed return ofservice;
return ofprocess. See SERVICE (1). [Cases: Federal Civil
Procedure (;:::c511-518; Process (;:::c 127-150.] 2. CER
TIFICATE OF SERVICE.
proof of will. See PROBATE (1).
pro omni alio onere (proh om-nI [also -nee] ay-lee-oh
on-dc-eel. [Law Latin "for all other burden"] Hist. A
portion of a charter clause restricting the vassal's duties
to those explicitly named in the charter.
pro opere et labore (proh op-il-ree et Id-bor-ee). [Latin]
For work and labor.
propaganda. Int'llaw. 1. The systematic dissemination
ofdoctrine, rumor, or selected information to promote
or injure a particular doctrine, view, or cause. 2. The
ideas or information so disseminated . The word pro
paganda originated as an abbreviated form of Congre
gatio de propaganda fide, a committee (of cardinals) for
propagating the (Christian) faith.
defamatory propaganda. Propaganda used to promote
dissatisfaction among a nation's citizens and under
mine government authority . Defamatory propa
ganda is common in wartime but is also used in
peacetime as a means ofincitement.
hostile propaganda. Propaganda employed by a nation
to manipulate the people ofanother nation to support
or oppose their government. -Also termed ideologi
cal aggression. See subversive propaganda.
"Ideological aggression ... is the spreading of ideas inten
tionally and deliberately so as to manipulate by symbols
controversial attitudes and positions. It is hostile pro
paganda indulged in by a state directly or vicariously to
incite and influence the people of another state so as to
maintain or alter the institutions and poliCies of that state,
The campaign of hostile propaganda may emanate from
within or without the territory of the victim state and can
be carried on by any means of communications." Ann Van
Wynen Thomas & A,J. Thomas,Jr., The Concept of Aggyes
sion in International Law 84 (l972),
subversive propaganda. Propaganda calculated to
incite a civil war or revolution . When the instiga
tor is another nation, it is termed hostile propaganda
or ideological aggression.
war-mongeringpropaganda. Propaganda calculated to
produce national support for a war and to encourage
the government to declare or join in a war regardless
ofany legal constraints.
pro parte (proh pahr-tee). [Latin) Hist. Partly; in part.
pro parte legitim us, pro parte illegitimus (proh pahr-tee
ld-jit-il-mds, proh pahr-tee il-ld-jit-d-mds). [Law
Latin] Hist. Partly legitimate, partly illegitimate .
In Roman and civil law, an illegitimate child could be later legitimated through the marriage of the child's
parents. But England did not fully recognize this legiti
mate status.
pro parte virili (proh pahr-tee vd-rI-lI). [Latin "for the
share per man"] Hist. In equal shares; for one's own
proportion.
pro purtibus liberandis (proh pahr-ti-bds lib-J-ran-dis).
[Latin "to free the portions"] Hist. A writ for the parti
tion oflands among coheirs.
propatruus (proh-pay-troo-ds or -pa-troo-dS). [Latin]
Roman & civil law. A great-grandfather's brother.
propatruus magnus (proh-pay-troo-ds [or -pa-troo-dS]
mag-nils). [Latin] Roman & civil law. A great-great
great-uncle on the father's side.
pro per., adv. & adj. See PRO PERSONA.
pro per., n. 1. See PRO SE. 2. See PROPRIA PERSONA.
proper care. See reasonable care under CARE.
proper evidence. See admissible evidence under
EVIDENCE.
proper feud. See FEUD (1).
proper improbation. See IMPROBATION.
proper independent advice. See INDEPENDENT
ADVICE.
proper law. Conflict oflaws. The substantive law that,
under the principles ofconflict oflaws, governs a trans
action. [Cases: Action (;:::c 17.]
proper lookout, n. (1842) The duty ofa vehicle operator
to exercise caution to avoid collisions with pedestrians
or other vehicles. [Cases: Automobiles (;:::c 150.J
proper means. Trade secrets. Any method ofdiscovering
trade secrets that does not violate property-protection
statutes or standards ofcommercial ethics . Proper
means include independent invention, reverse engi
neering, observing the product in public, and studying
published literature. RESTATEMENT OF TORTS  757
cmt. f (1977). [Cases: Antitrust and Trade Regulation
(;::::)414.]
"Trade secrets are protected ... in a manner akin to private
property, but only when they are disclosed or used through
improper means. Trade secrets do not enjoy the absolute
monopoly afforded patented processes. for example, and
trade secrets will lose their character as private property
when the owner divulges them or when they are discovered
through proper means .... Thus, it is the employment of
improper means to produce the trade secret, rather than
mere copy or use, which is the basis of liability" Chicago
Lock Co. v. Fanberg, 676 F.2d 400, 404 (9th Cif. 1982).
proper party. See PARTY (2).
pro persona (proh pdr-soh-nd), adv. & adj. [Latin] For
one's own person; on one's own behalf <a pro persona
brief>. Sometimes shortened to pro per. See PRO SE.
property. (14c) 1. The right to possess, use, and enjoy a
determinate thing (either a tract ofland or a chattel);
the right of ownership <the institution of private
property is protected from undue governmental inter
ference>. -Also termed bundle of rights. [Cases:
Constitutional Law Property G~1.] 2. Any

property 1336
external thing over which the rights of possession,
use, and enjoyment are exercised <the airport is city
property>. [Cases: Property <>1.]
"In its widest sense, property includes all a person's legal
rights, of whatever description. A man's property is all that
is his in law. This usage, however, is obsolete at the present
day, though it is common enough in the older books ....
In a second and narrower sense, property includes not all
a person's rights, but only his proprietary as opposed to
his personal rights. The former constitute his estate or
property, while the latter constitute his status or personal
condition. In this sense a man's land, chattels, shares, and
the debts due to him are his property; but not his life or
liberty or reputation.... In a third application, which is that
adopted [here], the term includes not even all proprietary
rights, but only those which are both proprietary and in
rem. The law of property is the law of proprietary rights
in rem, the law of proprietary rights in personam being
distinguished from it as the law of obligations. According
to this usage a freehold or leasehold estate in land, or a
patent or copyright, is property; but a debt or the benefit
of a contract is not. ... Finally, in the narrowest use of the
term, it includes nothing more than corporeal property
that is to say, the right of ownership in a material object,
or that object itself." John Salmond, Jurisprudence 423~24
(Glanville L. Williams ed., 10th ed. 1947).
abandoned property. (1841) Property that the owner
voluntarily surrenders, relinquishes, or disclaims. Cf.
lost property; mislaid property. [Cases: Abandoned
and Lost PropertyC=, 1.]
absolute property. Property that one has full and
complete title to and control over.
adventitious property. 1. Roman law. Property coming
to a son or daughter from anyone other than the
paterfamilias. -Also termed peculium adventitium.
2. Hist. Property coming to one from a stranger or
collateral relative.
appointive property. A property interest that is subject
to a power ofappointment. [Cases: Powers ~4.J
common property. (17c) 1. Real property that is held by
two or more persons with no right of survivorship.
Cf. joint property. [Cases: Common Lands <>LJ 2.
COMMON AREA.
community property. See COMMUNITY PROPERTY.
complete property. The entirety ofthe rights, privileges,
powers, and immunities that it is legally possible for a
person to have with regard to land or any other thing,
apart from those that all other members of society
have in the land or thing.
corporeal property. l. The right of ownership in
material things. 2. Property that can be perceived, as
opposed to incorporeal property; tangible property.
[Cases: Property <>1,2.)
distressed property. (1927) Property that must be sold
because ofmortgage foreclosure


1,2.)
distressed property. (1927) Property that must be sold
because ofmortgage foreclosure or because it is part of
an insolvent estate. [Cases: BankruptcyC='3067.1.)
domestic-partnership property. Property that would
be marital property if the domestic partners were
married to each other. See DOMESTIC PARTNERSHIP;
DOMESTIC-PARTNERSHIP PERIOD. [Cases: Marriage dotal property. Civil law. Separate property that the
wife brings to the marriage to assist the husband
with the marriage expenses. Cf. extradotal property.
[Cases: Dower and Curtesy <>.> 10.]
exempt property. See EXEMPT PROPERTY.
extradotal property (ek-str;:,-doh-t<ll). Civil law. l.
That portion of a wife's property over which she has
complete control. 2. All of a wife's effects that have
not been settled on her as dowry; any property that a
wife owns apart from her dowry. _ In Louisiana, after
January 1, 1980, all property acquired by the wife that
is not community is neither dotal nor extradotal; it
is simply her separate property, as has always been
true of the husband. La. Civ. Code art. 2341. -Also
termed paraphernal property. Cf. dotal property.
general property. Property belonging to a general
owner. See general owner under OWNER.
income property. Property that produces income, such
as rental property.
incorporeal property. (18c) 1. An in rem proprietary
right that is not classified as corporeal property. _
Incorporeal property is traditionally broken down
into two classes: (1) jura in re aliena (encumbrances),
whether over material or immaterial things, examples
being leases, mortgages, and servitudes; and (2) jura
in re propria (full ownership over immaterial things),
examples being patents, copyrights, and trademarks.
2. A legal right in property having no physical exis
tence. -Patent rights, for example, are incorporeal
property. Also termed incorporeal chattel; incor
poreal thing.
intangible property. (1843) Property that lacks a
physical existence. -Examples include stock options
and business goodwill. C( tangible property. [Cases:
Property ~1, 2.]
intellectual property. See INTELLECTUAL PROPERTY.
joint property. Real or personal property held by two
or more persons with a right of survivorship. Cf.
common property. [Cases: Joint TenancyG=~)1.)
limited-market property. See special-purpose
property.
literary property. See LITERARY PROPERTY.
lost property. (1810) Property that the owner no longer
possesses because of accident, negligence, or care
lessness, and that cannot be located by an ordinary,
diligent search. Cf. abandoned property; mislaid
property. [Cases: Abandoned and Lost Property
10.]
marital property. (1855) Property that is acquired
during marriage and that is subject to distribution or
division at the time ofmarital dissolution. -Generallv,
it is property acquired after the date of the marriage
and before a spouse files for separation or divorce. The
phrase marital property is used in equitable-distribu
tion states and is roughly equivalent to community
property. -Also termed marital estate. See COMMU

1337 property
NITY PROPERTY; EQUITABLE DISTRIBUTION. [Cases:
Divorce (::=248; Husband and Wife C----::>6-15(6).]
maternal property. Property that comes from the
mother of a party or other ascendants ofthe maternal
stock.
mislaid property. (1915) Property that has been vol
untarily relinquished by the owner with an intent to
recover it later -but that cannot now be found. Cf.
abandoned property; lost property. [Cases: Abandoned
and Lost Property C= L 10.)
"A distinction is drawn between lost property and mislaid
property. An article is 'mislaid' if it is intentionally put in
a certain place for a temporary purpose and then inadver
tently left there when the owner goes away. A typical case
is the package left on the patron's table in a bank lobby by
a depositor who put the package there for a moment while
he wrote a check and then departed without remembering
to take it with him. There is always a 'clue' to the owner
ship of property which is obviously mislaid rather than
lost, because of the strong probability that the owner will
know where to return for his chattel when he realizes he
has gone away without it." Rollin M. Perkins & Ronald N.
Boyce, Criminal Law 31 0-11 (3d ed. 1982).
mixedproperty. (18c) Property with characteristics of
both real property and personal property -such as
heirlooms and fixtures. [Cases: Property C=4.]
movable property. See MOVABLE (1).
neutral property. See NEUTRAL PROPERTY.
nonancestral property. See nonancestral estate under
ESTATE (1).
nonexempt property. See NONEXEMPT PROPERTY.
paraphernal property. See extradotal property.
paternal property. Property that comes from the father
ofa party or other ascendants of the paternal stock.
personal property. (18c) 1. Any movable or intangible
thing that is subject to ownership and not classified
as real property. Also termed personalty; personal
estate; movable estate; (in plural) things personal. Cf.
real property. [Cases: PropertyC=4.]2. 7ax. Property
not used in a taxpayer's trade or business or held for
income production or collection. [Cases: Taxation
Cr-;2176.]
private property. (17c) Property -protected from
public appropriation over which the owner has
exclusive and absolute rights.
public property. (17c) State-or community-owned
property not restricted to anyone individual's use or
possession. [Cases: States (>88.)
qualified property. A temporary or special interest in
a thing (such as a right to possess it), subject to being
totally extinguished by the occurrence of a specified
contingency over which the qualified owner has no
control.
qualified-terminable-interest property. (1982)
Property that passes by a QTIP trust from a deceased
spouse to the surviving spouse and that (if the
executor so elects) qualifies for the marital deduc
tion provided that the surviving spouse is entitled to receive all income in payments made at least annually
for life and that no one has the power to appoint the
property to anyone other than the surviving spouse.
 The purpose of the marital deduction is to permit
deferral of estate taxes until the death of the surviv
ing spouse. But this property is included in the sur
viving spouse's estate at death, where it is subject to
the federal estate tax. Abbr. QTIP. See QTIP trust
under TRUST. [Cases: Internal Revenue (::=4169(4).]
quasi-community property. See COMMUNITY PRO
PERTY.
real property. (18c) Land and anything growing on,
attached to, or erected on it, excluding anything that
may be severed without injury to the land. Real
property can be either corporeal (soil and buildings)
or incorporeal (easements). -Also termed realty;
real estate. Cf. personal property (1). [Cases: Property
(::='4.]
"Historically. the line between real and personal property
stems from the types of assets administered on death
respectively, in the king's and in the church's courts. The
king's courts, concerned with the preservation of the feudal
structure, dealt with fees Simple, fees tail and life estates,
Estates for years, gradually evolving out of contracts made
by feudally unimportant persons, clearly became interests
in land but never fully attained the historical dignity of
being 'real property.' The early economic unimportance
of money, goods and things other than land permitted the
church courts to take over the handling of all such assets
on the death of the owner. When the development of trade
and of capitalism caused assets of these types to assume
great, and sometimes paramount, importance we found
ourselves with the two important categories of property,
namely 'real' and 'personal' property, each with its set
of rules evolved from a different matrix. The pressure of
modern society has been strongly for assimilation and the
resultant elimination of this line, but this movement is far
from complete attainment of its goal." 1 Richard R. Powell,
Powell on Real Property  5.04, at 5-7 to 5-8 (Patrick j.
Rohan ed., rev, ed. 1998).
scheduled property. Insurance. Property itemized on a
list (usu. attached to an insurance policy) that records
property values, which provide the basis for insurance
payments in the event of a loss under an insurance
policy. [Cases: Insurance C=2169.~
separate property. See SEPARATE PROPERTY.
special-design property. See special-purpose property.
speCial property. Property that the holder has only a
qualified, temporary, or limited interest in, such as
(from a bailee's standpoint) bailed property.
special-purpose property. Property that has a unique
design or layout, incorporates special construction
materials, or has other features that limit the prop
erty's utility for purposes other than the one for which
it was built.  Because of the property's specialized
nature, the market for the property may be quite
limited. Also termed limited-market property;
special-design property. [Cases: Eminent Domain
C:::> 134; Taxation G::::>2514.]
specialty property. See SPECIALTY (3).
tangible personal property. (1843) Corporeal personal
property of any kind; personal property that can be

seen, weighed, measured, felt, or touched, or is in any
other way perceptible to the senses, such as furniture,
cooking utensils, and books.
tangible property. (1802) Property that has physical
form and characteristics. Cf. intangible property.
[Cases: Property 2.]
terminable property. Property (such as a leasehold)
whose duration is not perpetual or indefinite but is
limited in time or is liable to termination upon the
occurrence ofsome specified event.
wasting property. (1853) 1. Property that is consumed
in its normal use, such as a wasting asset, a leasehold
interest, or a patent right. 2. A right to or an interest
in such property.
property, law of. See LAW OF PROPERTY.
property crimes. See CRIMES AGAINST PROPERTY.
property-damage insurance. See property insurance
under INSURANCE.
property dividend. See asset dividend under
DIVIDEND.
property division. See PROPERTY SETTLEMENT (1).
property insurance. See INSURANCE.
property of the debtor. Bankruptcy. Property that is
owned or (in some instances) possessed by the debtor,
including property that is exempted from the bank
ruptcyestate. 11 USCA  541(b). -Also termed debtor's
property. [Cases: Bankruptcy~2531-2559.]
property ofthe estate. Bankruptcy. The debtor's tangible
and intangible property interests (including both legal
and equitable interests) that fall under the bankruptcy
court's jurisdiction because they were owned or held by
the debtor when the bankruptcy petition was filed. 11
USCA  541. Also termed estate's property. [Cases:
Bankruptcy ~2491-2559.]
property ratione privilegii (ray-shee-oh-nee priv-i-Iee
jee-I). Hist. A common-law right, granted by a royal
franchise, to take wild animals on another's land.
This principle made its way into American law. See, e.g.,
Hanson v. Fergus Falls Nat'l Bank, 65 N.W.2d 857, 862
(Minn. 1954). Cf. PROPERTY RATIONE SOLI.
"Property Ratione privilegii is the right which, by a peculiar
franchise anciently granted by the Crown in virtue of its
prerogative, one man had of killing and taking animals
Ferae naturae on the land of another; and in like manner
the game, when killed or taken by virtue of the privilege,
became the absolute property of the owner of the fran
chise, just as in the other case it becomes the absolute
property of the owner of the soil." Blades v. Higgs, 11 Eng.
Rep. 1474, 1479 (H.L. 1865).
property ratione soli (ray-shee-oh-nee soh-II). The com
mon-law right to take wild animals found on one's own
land. Cf. PROPERTY RATIONE PRIVILEGII.
"The exclusive common law right of a landowner to take
game on his land, known as property ratione soli ... has
been recognized throughout the history of common law,
with one exception: Following the Norman Conquest the
King contended that he was lord paramount of the field,
possessed of the right to the universal soil and of the
exclusive right to take the game, but the irate landowners, vehemently objecting, quickly and decisively recaptured
their rights and re-established the common law." Alford v.
Finch, 155 So.2d 790, 792 (Fla. 1963).
property right. See RIGHT.
property settlement. 1. A judgment in a divorce case
determining the distribution of the marital property
between the divorcing parties. _ A property settle
ment includes a division of the marital debts as well
as assets. Also termed property division; division
ofproperty. [Cases: Husband and Wife (,'=248.] 2.
A contract that divides up the assets of divorcing
spouses and is incorporated into a divorce decree.
Also termed integrated property settlement; property
settlement agreement. Cf. DIVORCE AGREEMENT. [Cases:
Husband and Wife 3. MARITAL AGREEMENT.
property settlement agreement. See PROPERTY SETTLE
MENT (2).
property tax. See TAX.
property tort. See TORT.


agreement. See PROPERTY SETTLE
MENT (2).
property tax. See TAX.
property tort. See TORT.
prophylactic (proh-fa-Iak-tik), adj. (16c) Formulated to
prevent something <a prophylactic rule>. -prophy
laxis (proh-f<3-lak-sis), prophylactic, n.
prophylactic cost. See COST (1).
propinquity (pra-ping-kw<3-tee). (15c) The state ofbeing
near; specif., kindred or parentage <degrees ofpropin
quity>.
propior sobrina (proh-pee-<3r sa-brI-na), n. [Latin]
Civil law. The daughter ofa great-uncle Of great-aunt,
paternal or maternal.
propior sobrino (proh-pee-af sa-brI-noh), n. [Latin] Civil
law. The son ofa great-uncle or great-aunt, paternal or
maternal.
propoue (pra-pohn), vb. To put forward for consider
ation or adjudication <propone a will for probate>.
proponent, n. (16c) 1. A person who puts forward a
legal instrument for consideration or acceptance; esp.,
one who offers a will for probate. Also termed pro
pounder. [Cases: Wills ~211, 219.] 2. A person who
puts forward a proposal; one who argues in favor of
something <a proponent ofgun control>. 3. Parliamen
tary law. A member who speaks in favor of a pending
motion. Cf. OPPONENT (3).
proportionality. lnt'llaw. The principle that the use of
force should be in proportion to the threat or grievance
provoking the use offorce.
proportionality review. (1976) Criminal law. An appel
late court's analysis ofwhether a death sentence is arbi
trary' capricious, or excessive by comparing the case in
which it was imposed with similar cases in which the
death penalty was approved or disapproved. [Cases:
Sentencing and Punishment ~1788(6).]
proportional quorum. See QUORUM.
proportional representation. 1. An electoral system
that allocates legislative seats to each political group
in proportion to its popular voting strength. 2. Seepro
portional voting under VOTING. -The term refers to

1339
two related but distinguishable concepts: proportional
outcome (having members ofa group elected in propor
tion to their numbers in the electorate) and propor
tional involvement (more precisely termed proportional
voting and denoting the electoral system also known as
single transferable voting).
proportional tax. See flat tax under TAX.
proportional voting. See VOTING.
proportionate-reduction clause. See LESSER-INTEREST
CLAUSE.
proposal. Something offered for consideration or accep
tance.
proposed agenda. See AGENDA.
proposed regulation. See REGULATION.
proposition. See main motion under MOTION (2).
propositus (proh-poz-;>-t;>s). [Law Latin] Civil law. 1.
A person from whom descent is to be traced. 2. The
person whose rights or obligations are in issue. Also
termed persona proposita. PI. propositi.
pro possessore (proh pos-;>-sor-ee). [Latin] As a pos
sessor; by title of a possessor; by virtue of possession
alone.
pro posse suo (proh pos-ee s[yJoo-oh). [Latin] To the
extent ofone's power or ability.
propound (prOl-pownd), vb. (16c) 1. To offer for consid
eration or discussion. 2. To make a proposal. 3. To put
forward (a will) as authentic.
propounder. An executor or administrator who offers a
will or other testamentary document for admission to
probate; PROPONENT.
prop. reg. abbr. See proposed regulation under REGULA
TION.
propria persona (proh-pree-Ol p;>r-soh-nOl), adj. & adv.
[Latin] In his own person; PRO SE. -Sometimes short
ened to pro per. Abbr. p.p. [Cases: Attorney and
Client (;.-::>62.]
proprietary (pr;>-prI-;>-ter-ee), adj. (ISc) L Ofor relating
to a proprietor <the licensee's proprietary rights>. 2.
Of, relating to, or holding as property <the software
deSigner sought to protect its proprietary data>.
proprietary act. See PROPRIETARY FUNCTION.
proprietary article. See ARTICLE.
proprietary capacity. See CAPACITY (1).
proprietary capital. See CAPITAL.
proprietary drug. See DRUG.
proprietary duty. See DUTY (2).
proprietary function. (1902) Torts. A municipality's
conduct that is performed for the profit or benefit of the
municipality, rather than for the benefit of the general
public . Generally, a municipality is not immune from
tort liability for proprietary acts. But the distinction
between proprietary acts and governmental functions
has been abrogated by statute in many states. Also pro privato commodo
termed proprietary act. Cf. GOVERNMENTAL FUNCTION.
[Cases: Municipal Corporations
proprietary government. See GOVERNMENT.
proprietary information. Information in which the
owner has a protectable interest. See TRADE SECRET.
[Cases: Contracts li8.J
proprietary interest. See INTEREST (2).
proprietary lease. See LEASE.
proprietary license. See LICENSE.
proprietary name. See NAME.
proprietary power. See power coupled with an interest
under POWER (3).
proprietary right. See RIGHT.
proprietary software. Software that cannot be used,
redistributed. or modified without permission . Pro
prietary software is usu. sold for profit, consists only of
machine-readable code, and carries a limited license
that restricts copying, modification, and redistribution.
A user may usu. make a backup copy for personal use;
but if the software is sold or given away, any backup
copies must be passed on to the new user or destroyed.
Cf. FREEWARE; SHAREWARE; SEMI-FREE SOFTWARE.
proprietary technology. Intellectual property. A body of
knowledge or know-how that is owned or controlled by
a person whose authorization is required before any
other party may use that know-how or knowledge for
commercial purposes. See TRADE SECRET.
proprietas (prd-prI-Ol-tas). [Latin] Hist. Ownership.
proprietas nuda (pr;>-prI-Ol-tas n[y]oo-d;. Naked
ownership; the mere title to property, without the
usufruct.
proprietas plena (prd-pn-a-tas pIee-nOll. Full owner
ship, including both the title and the usufruct.
proprietate probanda (prOl-pn-Ol-tay-tee prOl-ban-dd).
See DE PROPRIETATE PROBANDA.
proprietor, n. (16c) An owner, esp. one who runs a
business. See SOLE PROPRIETORSHIP. -proprietor
ship, n.
propriety. Hist. Privately owned possessions; property.
propriis manibus (proh-pree-is man-Ol-bOls). [LatinJ Hist.
By one's own hands.
proprio jure (proh-pree-oh joor-ee). [LatinJ Rist. By
one's own property right.
proprio nomine (proh-pree-oh nahm-Ol-nee). [Latin]
Hist. In one's own name.
proprio vigore (proh-pree-oh vi-gor-ee). [Latin] By its
own strength.
proprium negotium (proh-pree-;>m ni-goh-shee-Olm).
[LatinJ Hist. One's own business.
pro privato commodo (proh pn-vay-toh kom-Ol-doh).
[Law LatinJ Hist. For private convenience . The phrase
sometimes appeared in reference to a private road as
distingUished from a public highway. Cf. PRO BONO
PUBLICO.

1340 propter
propter (prop-t<Jr). [Latin] For; on account of.
propter affectum (prop-t;)f ;)-fek-t<Jm). See challenge
propter affectum under CHALLENGE (2).
propter commodum curiae (prop-tar kom-;)-d;)m
kyoor-ee-ee). [Law Latin] Hist. For the advantage of
the court.
propter curam et culturam (prop-t<Jr kyoor-am et
k;)l-t[y]oor-<Jm). [Latin] Rist. For care and cultiva
tion.
propter defectum (prop-t<Jr d;)-fek-t<Jm). See challenge
propter defectum under CHALLENGE (2).
propter defectum sanguinis (prop-t<Jr d<J-fek-t<Jm sang
gwi-nis). [Latin] On account offailure ofblood.
propter delectum personae (prop-t<Jf d<J-Iek-t<Jm par
soh-nee). [Law Latin] Hist. On account ofthe selection
of persons. _ For example, a person could not delegate
the principal duties ofan office when that person had
been specifically chosen to perform those duties.
propter delictum (prop-t<Jr d<J-lik-t<Jm). See challenge
propter delictum under CHALLENGE.
propter honoris respectum (prop-tar h<J-nor-is ri-spek
tdm). [Latin] On account of respect of honor or rank.
propter impotentiam (prop-tdf im-pd-ten-shee-dm).
[Latin] On account ofhelplessness. -This was formerly
given as a ground for gaining a property interest in a
wild animal, based on the animal's inability to escape
(as where, for example, a young bird could not fly
away).
propter ingratitudinem (prop-t;)r in-grat-<J-t[y]oo-dd
n<Jm). [Latin] Hist. On account of ingratitude. -In
some instances, a superior could revoke a gift based
on the vassal's ingratitude, and a slave-owner could
revoke the manumission ofa slave.
propter majorem securitatem (prop-tar ma-jor-;)m
si-kyoor-;)-tay-tdm). [Law Latin] Hist. For greater
security.
propter negligentiam haeredis jus suum non prose
quentis (prop-tar neg-li-jen-shee-am h<1-ree-dis jas
s[yloo-~m non prahs-<J-kwen-tis). [Law Latin] Hist. On
account of the negligence of the heir in not following
up the heir's right.  Ifa vassal's heir failed, for a year
and a day, to enter the estate, then the heir forfeited the
right to the land.
propter privilegium (prop-t<Jr priv-<J-lee-jee-am). [Latin]
On the account of privilege. -This describes a way of
acquiring a property interest in a wild animal, based
on the claimant's exclusive right to hunt in a particular
park or preserve.
propter quodfeceruntper alium (prop-tar kwod fi-see
rant p<1r ay-Iee-am). [Law Latin] Hist. On account of
what they have done by another. -The phrase usu.
referred to an agent's actions.
propter rem ipsam non habitam (prop-tdr rem ip-sam
non hab-a-t<1m). [Law Latin] Hist. On account of not
having had possession of the thing itself. -The phrase
appeared in reference to damages suffered by a party who failed to receive a thing for which he had con
tracted.
pro quantitate haereditatis et temporis (proh kwon-ti
tay-tee h<J-red-i-tay-tis et tem-p<J-ris). [Law Latin] Hist.
According to the extent of the succession.
pro quer. abbr. PRO QUERENTE.
pro querente (proh kW<1-ren-tee). [Latin] For the plain
tiff. -In old law reports, the plaintiff's advocate is
designated pro querente and the opposing advocate
contra. -Abbr. pro quer. Cf. PRO DEFENDENTE.
pro rata (proh ray-t<J or rah-t<J or ra-ta), adv. (16c) Pro
portionately; according to an exact rate, measure, or
interest <the liability will be assessed pro rata between
the defendants>. See RATABLE. pro rata, adj.
pro rata clause. An insurance-policy provision -usu.
contained in the "other insurance" section of the
policy -that limits the insurer's liability to payment of
the portion ofthe loss that the face amount ofthe policy
bears to the total insurance available on the risk.
Also termed pro rata distribution clause. Cf. ESCAPE
CLAUSE; EXCESS CLAUSE. [Cases: Insurance
pro rata itineris (proh ray-td I-tin-~-ris). [Latin] Scots
law. For the proportion of the journey.
"Where a ship, chartered to convey a cargo to a certain
port ... is prevented from completing the voyage ...
the master of the ship may transship the goods, and thus
conveying them to their destination, earn his full freight.
But if, when the ship has been prevented from proceeding
on her voyage, the freighter himself transships the cargo,
the master is entitled to freight pro rata itineris, for the
proportion of the voyage which he has accomplished." John
Trayner, Trayner's Latin Maxims 486 (4th ed. 1894).
prorate (proh-rayt or proh-rayt), vb. (1858) To divide,
assess, or distribute proportionately <prorate taxes
between the buyer and the seller>. proration, n.
pro re nata (proh ree nay


ate taxes
between the buyer and the seller>. proration, n.
pro re nata (proh ree nay-t~). [Latin "in the light of what
has arisen"] Hist. By reason of emergency; arising from
exigent circumstances. -The phrase appeared, for
example, in reference to a meeting called to address
an emergency.
"So far as may be, the state leaves the rule of right to
be declared and constituted by the agreement of those
concerned with it. So far as possible, it contents itself with
executing the rules which its subjects have made for them
selves. And in so doing it acts wisely. For, in the first place,
the administration of justice is enabled In this manner to
escape in a degree not otherwise attainable the disadvan
tages inherent in the recognition of rigid principles of law.
Such principles we must have: but jf they are established
pro re nata by the parties themselves, they will possess a
measure of adaptability to individual cases which is unat
tainable by the more general legislation of the state itself."
John Salmond, Jurisprudence 352 (Glanville L. Williams ed.,
10th ed. 1947).
prorogated jurisdiction. See JURISDICTION.
prorogatio de loco in locum (proh-roh-gay-shee-oh dee
loh-koh in loh-k<Jm). [Law Latin) Hist. Prorogation (of
jurisdiction) from one place to another.
prorogatio de tempore in tempus (proh-roh-gay-shee-oh
dee tem-pa-ree in tem-p<Js). [Law Latin] Hist. Proroga
tion (esp. ofjurisdiction) from one time to another.

prorogation (proh-ra-gay-shan). (14c) 1. The act of
putting off to another day; esp., the discontinuance of
a legislative session until its next term. [Cases: States
<;~'32.] 2. Civil law. The extension ofa court's or judge's
jurisdiction by consent of the parties to a case that it
would otherwise be incompetent to hear. -proroga
tive, adj.
tacit prorogation. Civil law. Consent to jurisdiction
that arises when a party does not request recusal
despite awareness that the judge is not qualified to
try the case. Cf. prorogated jurisdiction under JURIS
DICTION.
prorogue (proh-rohg or pra-), vb. (15c) 1. To postpone
or defer. 2. To discontinue a session of (a legislative
assembly, esp. the British Parliament) without dissolu
tion. 3. To suspend or discontinue a legislative session.
[Cases: States (::::>32.]
proscribe, vb. (15c) 1. To outlaw or prohibit; to forbid.
2. Roman & civil law. To post or publish the name of
(a person) as condemned to death and forfeiture of
property.
proscription, n. (14c) 1. The act of prohibiting; the state
ofbeing prohibited. 2. A prohibition or restriction. Cf.
PRESCRIPTION (1). proscriptive, adj.
pro se (proh say or see), adv. & adj. [Latin] (1817) For
oneself; on one's own behalf; without a lawyer <the
defendant proceeded pro se> <a pro se defendant>.
Also termed pro persona; in propria persona; propria
persona; pro per. See PROPRIA PERSONA. [Cases:
Attorney and Client (::::>62; Criminal Law (::::> 1750.]
pro se, n. (1857) One who represents oneself in a court
proceeding without the assistance of a lawyer <the
third case on the court's docket involving a pro se>.
Also termed pro per; self-represented litigant; (rarely)
pro se-er. [Cases: Attorney and Client (::::>62; Criminal
Law (::::> 1750]
prosecutable, adj. (Of a crime or person) subject to pros
ecution; capable ofbeing prosecuted.
prosecute, vb. (15c) 1. To commence and carry out a
legal action <because the plaintiff failed to prosecute
its contractual claims, the court dismissed the suit>.
2. To institute and pursue a criminal action against (a
person) <the notorious felon has been prosecuted in
seven states>. 3. To engage in; carryon <the company
prosecuted its business for 12 years before going
bankrupt>. prosecutory, a~j.
prosecuting attorney. See DISTRICT ATTORNEY.
prosecuting witness. See WITNESS.
prosecution. (16c) 1. The commencement and carrying
out ofany action or scheme <the prosecution ofa long,
bloody war>. 2. A criminal proceeding in which an
accused person is tried <the conspiracy trial involved
the prosecution of seven defendants>. -Also termed
criminal prosecution.
deferred prosecution. See deferred judgment under
JUDGMENT. private prosecution. Hist. A criminal prosecution ini
tiated by a privately employed attorney or by a lay
person or private organization, rather than a district
attorney or other government-employed prosecutor.
 Until the 19th century, victims often had the burden
of directly prosecuting criminals who had harmed
them. With the rise of public-prosecution services,
the need for private prosecutions declined. Though
uncommon, they are still sometimes permitted in
England. [Cases: Criminal LawC=,1704.j
selective prosecution. See SELECTIVE PROSECUTION.
sham prosecution. (1903) A prosecution that seeks to
circumvent a defendant's double-jeopardy protection
by appearing to be prosecuted by another sovereignty,
when it is in fact controlled by the sovereignty that
already prosecuted the defendant for the same crime.
 A sham prosecution is, in essence, a misuse of the
dual-sovereignty doctrine. Under that doctrine, a
defendant's protection against double jeopardy does
not provide protection against a prosecution by a
different sovereignty. For example, if the defendant
was first tried in federal court and acquitted, that fact
would not forbid the state authorities from prosecut
ing the defendant in state court. But a sham prosecu
tion for example, a later state-court prosecution
that is completely dominated or manipulated by the
federal authorities that already prosecuted the defen
dant' so that the state-court proceeding is merely a
tool ofthe federal authorities will not withstand a
double-jeopardy challenge. See DUAL-SOVEREIGNTY
DOCTRINE. [Cases: Double JeopardYC=J 53.)
vindictive prosecution. (1834) A prosecution in which
a person is singled out under a law or regulation
because the person has exercised a constitutionally
protected right. Cf. SELECTIVE ENFORCEMENT. [Cases:
Criminal Law ~'-;)37.15.)
3. The government attorneys who initiate and maintain
a criminal action against an accused defendant <the
prosecution rests>. 4. Patents. The process of applying
for a patent through the U.S. Patent and Trademark
Office and negotiating with the patent examiner.
Also termed patent-prosecution process. [Cases: Patents
~-'104.]
prosecution history. See FILE WRAPPER.
prosecution-history estoppel. See ESTOPPEL.
prosecution laches. See LACHES.
prosecution-laches doctrine. See CONTINGATION-APPLI
CATION LACHES DOCTRINE.
prosecutor, n. (16c) 1. A legal officer who represents the
state or federal government in criminal proceedings.
See DISTRICT ATTORNEY; UNITED STATES ATTORNEY;
ATTORNEY GENERAL. -Also termed public prosecutor;
state's attorney; public commissioner.
public prosecutor. 1. See PROSECUTOR (1). 2. See DIS
TRICT ATTORNEY.

special prosecutor. (1859) A lawyer appointed to inves
tigate and, if justified, seek indictments in a particular
case. See independent counsel under COUNSEL.
2. A private person who institutes and carries on a legal
action, esp. a criminal action. -Also termed (in sense
2) private prosecutor. -prosecutorial, adj.
prosecutorial discretion. See DISCRETION (4).
prosecutorial immunity. See IMMUNITY.
prosecutorial misconduct. (1963) Criminal law. A pros
ecutor's improper or illegal act (or failure to act), esp.
involVing an attempt to avoid required disclosure or
to persuade the jury to wrongly convict a defendant
or assess an unjustified punishment . If prosecuto
rial misconduct results in a mistrial, a later prosecu
tion may be barred under the Double Jeopardy Clause.
[Cases: Criminal Law C==> 1980-1986.]
prosecutorial vindictiveness. Criminal law. The act or
an instance of intentionally charging a more serious
crime or seeking a more severe penalty in retaliation for
a defendant's lawful exercise ofa constitutional right.
[Cases: Criminal LawC==>37.l5; Sentencing and Pun
ishment
prosecutrix (pros-a-kyoo-triks). Archaic. A female pros
ecutor.
prosequi (prahs-a-kwI), vb. [Latin) To follow up or
pursue; to sue or prosecute. See NOLLE PROSEQUI.
prosequitur (pra-sek-wa-t<lr or proh-). [Latin) He follows
or pursues; he prosecutes.
pro servitio burgali (proh sar-vish-ee-oh b<lr-gay-h).
[Law Latin] Hist. For burghal service. See BURGAGE
TENURE (2).
prosocer (proh-sd-sar). [Latin) Civil law. A father-in-law's
father; a spouse's grandfather.
prosocerus (prd-sos-d-ras). [Latin] Civil law. A wife's or
husband's grandmother.
pro socio (proh soh-shee-oh). [Latin) As a partner . This
was the name ofan action on behalfofa partner.
pro solido (proh sol-d-doh). [Latin] For the whole;
without division.
prospectant evidence. See EVIDENCE.
prospective, adj. (18c) 1. Effective or operative in the
future <prospective application of the new statute>.
Cf. RETROACTIVE. 2. Anticipated or expected; likely to
come about <prospective clients>.
prospective damages. See DAMAGES.
prospective heir. See HEIR.
prospective law. See prospective statute under
STATUTE.
prospective nuisauce. See anticipatory nuisance under
NUISANCE.
prospective statute. See STATUTE.
prospective \\-"<liver. See WAIVER (1).
prospect theory. See INCENTIVE-TO-COMMERCIALIZE
THEORY. prospectus (pr<l-spek-t<ls). A printed document that
describes the main features ofan enterprise (esp. a cor
poration's business) and that is distributed to prospec
tive buyers or investors; esp., a written description ofa
securities offering . Under SEC regulations, a publicly
traded corporation must provide a prospectus before
offering to sell stock in the corporation. PI. prospec
tuses. See REGISTRATION STATEMENT. Cf. TOMBSTONE.
[Cases: Securities Regulation
newspaper prospectus. A summary prospectus that
the SEC allows to be disseminated through advertise
ments in newspapers, magazines, or other periodicals
sent through the mails as second-class matter (though
not distributed by the advertiser), when the securities
involved are issued by a foreign national government
with which the United States maintains diplomatic
relations.
preliminary prospectus. A prospectus for a stock issue
that has been filed but not yet approved by the SEC.
 The SEC requires such a prospectus to contain a
notice -printed in distinctive red lettering -that
the document is not complete or final. Ihat notice,
which is usu. stamped or printed in red ink, typi
cally reads as follows: "The information here given
is subject to completion or amendment. A registra
tion statement relating to these securities has been
filed with the Securities and Exchange Commission.
These securities cannot be sold and offers to buy
cannot be accepted -until the registration statement
becomes effective. This prospectus does not consti
tute an offer to buy. And these securities cannot be
sold in any state where the offer, solicitation, or sale
would be unlawful before registration or qualification
under the securities laws ofthat state." Also termed
red-herring prospectus; red herring. [Cases: Securities
Regulation C==>25.51.]
prostitute, n. (16c) A person who engages in sexual acts
in exchange for money or anything else ofvalue.
child prostitute. A child who is offered or used for sex
acts in exchange for money . Some people object to
this phrase because the term "prostitute" suggests a
degree ofvoluntariness or choice on the child's part,
which is often not true. An alternative without those
connotations is prostituted child. [Cases: Infants
13.]
prostituted child. See child prostitute under PROSTI
TUTE.
prostitution, n. (16c) 1. The act or practice ofengaging
in sexual activity for money or its equivalent; commer
cialized sex. [Cases: Prostitution C==> L)
"Prostitution is not itself a crime in England or Scotland,
although certain activities of prostitutes and those who
profit from prostitution are prohibited, such as soliciting in
a public place, procuring, letting premises for the purpose
of prostitution and so forth. On the other hand. prostitu
tion was, at least at one time, prohibited in all American
jurisdictions." Rollin M. Perkins & Ronald N. Boyce, Criminal
Law 470 (3d ed. 19


Rollin M. Perkins & Ronald N. Boyce, Criminal
Law 470 (3d ed. 1982).

1343
child prostitution. The act or practice of offering or
using a minor for sex acts in exchange for money. See
child prostitute under PROSTITUTE.
2. The act ofdebasing. - prostitute, vb. -prostitute,
n.
pro tanto (proh tan-toh), adv. & adj. [Latin) (l7c) To that
extent; for so much; as far as it goes <the debt is pro
tanto discharged> <a pro tanto payment>.
protected activity. (1918) Conduct that is permitted or
encouraged by a statute or constitutional provision, and
for which the actor may not legally be retaliated against.
 For example, Title VII of the Civil Rights Act prohib
its an employer from retaliating against an employee
who opposes a discriminatory employment practice
or helps in investigating an allegedly discriminatory
employment practice. An employee who is retaliated
against for engaging in one of those activities has a
claim against the employer. 42 USCA  2000e-3(a).
[Cases: Civil Rights (;::::c 1244; Labor and Employment
Cr'-::772.)
protected class. See CLASS (1).
protected person. See PERSON (1).
protecting power. lnt'llaw. A country responsible for
protecting another country's citizens and interests
during a conflict or a suspension of diplomatic ties
between the citizens' country and a third party.
After a protecting power is accepted by both belliger
ents, it works to ensure the proper treatment ofnation
als who are in a belligerent's territory, esp. prisoners of
war. Ifthe parties cannot agree on a protecting power,
the International Committee of the Red Cross is often
appointed to this position.
protection, n. (14c) 1. The act of protecting. 2. PROTEC
TIONISM. 3. COVERAGE (1). 4. A document given by a
notary public to sailors and other persons who travel
abroad, certifying that the bearer is a U.S. citizen.
protect, vb.
Protection and Advocacy for Individuals with Mental
Illness Act. A 1986 federal statute that provides
funding for the state-level establishment of indepen
dent organizations dedicated to monitoring and pro
tecting the rights of mentally ill citizens. 42 U.S.c.
 10801-10851.  Formerly titled the Protection and
Advocacy for Mentally III Individuals Act, this statute
was renamed in the Children's Health Act of 2000 (114
Stat. 1101).
Protection and Advocacy for Mentally III Individuals
Act. See PROTECTION A:SD ADVOCACY FOR INDIVIDU
ALS WITH MENTAL ILLNESS ACT.
protection covenant. Oil & gas. The implied promise
in an oil-and-gas lease that the lessee will protect the
property against the loss of oil and gas by drainage from
the prodUcing reservoir by drilling one or more offset
ting wells . The covenant applies only ifa reasonably
prudent operator would drill the additional wells.
Also termed covenant to protect against drainage. See protective order
REASONABLY PRUDENT-OPERATOR STANDARD. [Cases:
Mines and Minerals (;::::c78.1(1l).j
protectionism. (1844) The protection of domestic busi
nesses and industries against foreign competition by
imposing high tariffs and restricting imports. -pro
tectionist, adj.
protection money. (lSc) 1. A bribe paid to an officer as
an inducement not to interfere with the criminal activi
ties of the briber . Examples include payments to an
officer in exchange for the officer's releasing an arrestee,
removing records of traffic violations from a court's
files, and refraining from making a proper arrest.
[Cases: Bribery 1(1).] 2. Money extorted from a
business owner by one who promises to "protect" the
business premises, with the implied threat that if the
owner does not pay, the person requesting the payment
will harm the owner or damage the premises.
protection order. See RESTRAINING ORDER (1).
protective appeal. See APPEAL.
protective committee. A group of security holders or
preferred stockholders appointed to protect the inter
ests of their group when the corporation is liqUidated
or reorganized.
protective custody. See CUSTODY (1).
protective order. (1884) 1. A court order prohibiting or
restricting a party from engaging in conduct (esp. a
legal procedure such as discovery) that unduly annoys
or burdens the opposing party or a third-party witness.
[Cases: Federal Civil Procedure 1271.5; Pretrial
Procedure (;::::c41.j 2. RESTRAINI:sG ORDER (1).
blanket protective order. A protective order that covers
a broad subject or class. -Often shortened to blanket
order. Also termed umbrella protective order.
emergency protective order. A temporary protective
order granted on an expedited basis, usu. after an
ex parte hearing (without notice to the other side),
most commonly to provide injunctive relief from
an abuser in a domestic-violence case; esp., a short
term restraining order that is issued at the request of
a law-enforcement officer in response to a domestic
violence complaint from a victim who is in immediate
danger. A victim of domestic violence can obtain an
EPa only through a law-enforcement officer. There is
no notice requirement, but the abuser must be served
with the order. The duration of an EPa varies from
three to seven days, depending on state law. -Abbr.
EPa. Cf. TEMPORARY RESTRAINING ORDER. [Cases:
Breach of the Peace
permanent protective order. A protective order of
indefinite duration granted after a hearing with
notice to both sides; esp., a court order that prohibits
an abuser from contacting or approaching the pro
tected person for a long period, usu. years. Despite the
name, permanent orders often have expiration dates
set by state law. An order may also require the abuser
to perform certain acts such as attending counsel
ing or providing financial support for the protected

1344 protective principle
person, Abbr, PPO, [Cases: Breach of the Peace
(;=20.]
protective prindple. Int'l law. The doctrine that a sov
ereign state has the power to assert jurisdiction over a
person whose conduct outside its boundaries threatens
its security or could interfere with the operation of its
government functions. [Cases: International Law
7,]
protective search. See SEARCH.
protective sweep. (1973) A police officer's quick and
limited search conducted after the officer has
lawfully entered the premises -based on a reason
able belief that such a search is necessary to protect the
officer or others from harm.
protective tariff. See TARIFF (2).
protective trust. See TRUST.
protector. 1. An unrelated, disinterested overseer of a
trust who possesses broader authority than a trustee .
Protectors are usu. appOinted to manage offshore trusts,
but the concept is slowly being applied to domestic
trusts, Protectors often possess broad powers to act
for the benefit of the trust, as by removing trustees
and clarifying or modifying trust terms to promote
the settlor's objectives. For these reasons, a protector
is generally not a trustee or beneficiary of the trust.
Cf. TRUSTEE. 2. A person who, haVing been named in
an instrument creating a fee tail, has the responsibil
ity of exercising discretion over whether the tenant in
tail may bar the entail. -Also termed protector ofthe
settlement.
'The only additional restriction imposed upon the alien
ation of an estate tail is that the consent of the person
who is called the Protector of the settlement is necessary
to its being effectually barred. Alienation by tenant in tail
without this consent binds his own issue, but not remain
dermen or reversioners, and creates what is called a 'base
fee.' The Protector of the settlement is usually the tenant
for life in possession; but the settlor of the lands may
appoint in his place any number of persons not exceeding
three to be together Protector during the continuance of
the estates preceding the estate tail." Kenelm E. Digby, An
Introduction to the History ofthe Law ofReal Property 255
(5th ed. 1897).
protectorate (pr<'l-tek-t<'l-r<'1t). 1. Int'llaw. The relation
ship between a weaker nation and a stronger one when
the weaker nation has transferred the management of
its more important international affairs to the stronger
nation. 2. Int'l law. The weaker or dependent nation
within such a relationship. 3. (usu. cap.) The period in
British history from 1653 to 1659 -during which
Oliver Cromwell and Richard Cromwell governed. 4.
The British government in the period from 1653 to
1659.
protege. 1. A person protected by or under the care or
training of another person or an entity, esp. one who is
established or influential. 2. International law. A nation
that is under the protection ofanother nation. 3. Inter
national law. A person who is a citizen of a protected
nation or otherwise recognized by treaty as a protected
person. pro tem. abbr. PRO TEMPORE.
pro tempore (proh tem-p<'1-ree), adv. & adj. [Latin] (ISc)
For the time being; appointed to occupy a position
temporarily <a judge pro tempore>. -Abbr. pro tem.
[Cases: Judges ~15.J
protest, n. (ISc) 1. A formal statement or action express
ing dissent or disapproval.  Under some circum
stances, a protest is lodged to preserve a claim or right.
2. A notary public's written statement that, upon pre
sentment, a negotiable instrument was neither paid nor
accepted. Also termed initial protest; noting protest.
Cf. NOTICE OF DISHONOR. [Cases: Bills and Notes
408.J
"Noting or initial protest is a memorandum made on [a
dishonoreq] instrument, with the notary's initials, date, and
the amount of noting charges, together with a statement
of the cause of dishonor, such as 'no effects,' 'not advice,'
or 'no account.' This is done to charge the memory of the
notary, and should be done on the day of dishonor." Fred
erick M. Hinch, john's American Notary and Commission
ofDeeds Manual  442, at 281 (3d ed. 1922).
3. A formal statement, usu. in writing, disputing a
debt's legality or validity but agreeing to make payment
while reserving the right to recover the amount at a
later time . The disputed debt is described as under
protest. [Cases: Payment 4. Tax. A taxpayer's
statement to the collecting officer that payment is being
made unWillingly because the taxpayer believes the
tax to be invalid. 5. Int'llaw. A formal communica
tion from one subject of international law to another
objecting to conduct or a claim by the latter as violating
international law. 6. Patents. A proceeding in the U.S.
Patent and Trademark Office to determine patentabil
ity ofan invention after a third party has challenged it
in a petition . Unlike in a public use proceeding, the
protestant has no right to participate in the proceeding
beyond filing the petition and supporting documents.
37 CFR 1.291. Cf. PUBLIC-USE PROCEEDING. [Cases:
Patents ~104.] protest, vb.
protestando (proh-t<:l-stan-doh). [Law Latin] Protesting.
 'Ibis emphatic word was used in a protestation to
allege or deny something in an oblique manner.
protestant. Patents. A person who files a protest petition
with the U.S. Patent and Trademark Office challenging
the patentability ofan invention. See PROTEST. [Cases:
Patents ~104.]
protestatio contraria facto (proh-tes-tay-shee-oh bn
trair-ee-<:l fak-toh). [Law Latin] Hist. Protestation
inconsistent with one's conduct while protesting.
protestation (prot-<:l-stay-sh<:ln). (14c) 1. Common-law
pleading. A declaration by which a party makes an
oblique allegation or denial ofsome fact, claiming that
it does or does not exist or is or is not legally sufficient,
while not directly affirming or denying the fact. [Cases:
Pleading l28.]
'The practice of protestation of facts not denied arose
where the pleader, wishing to avail himself of the right
to contest in a future action some traversable fact in the
pending action, passes it by without traverse, but at the
same time makes a declaration collateral or incidental to

1345 provisional exit
his main pleading, importing that the fact so passed over
is untrue. The necessity for this arose from the rule that
pleadings must not be double, and that every pleading
is taken to admit such matters as it does not traverse.
Such being its only purpose, it is wholly without effect in
the action in which it occurs ...." Benjamin J. Shipman,
Handbook of Common-Law Pleading  207, at 358 (Henry
Winthrop Ballantine ed., 3d ed. 1923).
2. Scots law. A defendant's act in a civil case to compel
a pursuer (plaintiff) who has failed to take the neces
sary procedural steps either to proceed or to allow the
action to fall.
protest certificate. A notarial certificate declaring (1)
that a holder in due course has recruited the notary
public to present a preViously refused or dishonored
negotiable instrument, (2) that the notary has presented
the instrument to the person responsible for payment
or acceptance (the drawee), (3) that the instrument was
presented at a given time and place, and (4) that the
drawee refused or dishonored the instrument.  In
former practice, the notary would issue a protest cer
tificate, which could then be presented to the drawe


ored the instrument.  In
former practice, the notary would issue a protest cer
tificate, which could then be presented to the drawee
and any other liable parties as notice that the holder
could seek damages for the dishonored negotiable
instrument. Also termed notarial protest certificate.
See NOTICE OF DlSHONOR. [Cases; Bills and Notes
408.]
protest fee. A fee charged by a bank or other financial
institution when an item (such as a check) is presented
but cannot be collected.
prothonotary (pra-thon-a-ter-ee or proh-tha-noh-ta
reel, n. A chief clerk in certain courts oflaw. -Also
termed protonotary. [Cases; Clerks ofCourts L]
prothonotarial, adj.
protocol. 1. A summary of a document or treaty. 2. A
treaty amending and supplementing another treaty.
[Cases: Treaties (;::::::'8.] 3. The formal record of the pro
ceedings of a conference or congress. -Also termed
prod~s-verbal. 4. The minutes of a meeting, usu. ini
tialed by all participants after confirming accuracy.
5. The rules ofdiplomatic etiquette; the practices that
nations observe in the course oftheir contacts with
one another.
protonotary. See PROTHONOTARY.
pro tribunali (proh trib-ya-nay-h). [Latin] Hist. Before
the court.
protntor (proh-t[y]oo-tar). Civil law. A person who,
though not legally appointed as a guardian, adminis
ters another's affairs.
prout de lege (proh-at dee [or di]lee-jee). [Law Latin]
According to law . Proof prout de lege is proof by
any legal means, as distinct from proof limited to
writing. -Also termed prout de jure (proh-at dee [or
di] joor-ee).
"A proof prout de jure is a proof by all the legal means
of probation -viz.: writ, witnesses, and oath of party;
although, in practice, the phrase is usually applied to a
proof of facts and circumstances by parole, in contradis
tinction to a proof limited to writ or oath of party." William Bell, Bell's Dictionary and Digest ofthe Law ofScotland 871
(George Watson ed., 7th ed. 1890).
prout patet per recordum (proh-at pay-tet par ri-kor
dam). [Latin] As appears by the record.
provable, adj. (ISc) Capable ofbeing proved.
prove, vb. (13c) To establish or make certain; to estab
lish the truth of (a fact or hypothesis) by satisfactory
evidence.
prover, n. Hist. A person charged with a felony who
attempts to obtain a pardon by confessing and naming
accomplices.
pro veritate accipitur (proh ver-i-tay-tee ak-sip-a-tar).
[Latinl Hist. Is held or received as the truth.
prove up, vb. (1832) To present or complete the proof of
(something) <deciding not to put a doctor on the stand,
the plaintiff attempted to prove up his damages with
medical records only>.
prove-up, n. The establishment of a prima facie claim.
 A prove-up is necessary when a factual assertion is
unopposed because even without opposition, the claim
must be supported by evidence.
provided, conj. (ISc) 1. On the condition or understand
ing (that) <we will sign the contract provided that you
agree to the follOWing conditions> . For the Latin
antecedent ofthis term, see DUMMODO. 2. Except (that)
<all permittees must be at least 18 years ofage, prOVided
that those with a bona fide hardship must be at least 15
years of age>. 3. And <a railway car must be operated
by a full crew ifit extends for more than 15 continuous
miles, provided that a full crew must consist ofat least
six railway workers>.
provident plea. See PLEA (1).
province, n. 1. An administrative district into which a
country has been divided. 2. A sphere of activity of a
profeSSion such as medicine or law.
provincia lis (pra-vin-shee-ay-lis). [Latin] One who has
a domicile in a province.
provincial synod. See SYNOD.
proving the tenor. Scots law. An action to establish the
terms ofa deed or will that has been lost or destroyed.
provision. (ISc) 1. A clause in a statute, contract, or other
legal instrument. 2. A stipulation made beforehand.
See PROVISO.
provisional, adj. (16c) 1. Temporary <a provisional
injunction>. 2. Conditional <a provisional govern
ment>.
provisional alimony. See temporary alimony under
ALIMONY.
provisional application. See PATENT APPLICATION.
provisional attachment. See ATTACHMENT (1).
provisional court. See COURT.
provisional director. See DlRECTOR.
provisional exit. Criminal procedure. A prisoner's tem
porary release from prison for a court appearance,

1346 provisional government
hospital treatment, work detail, or other purpose
requiring a release with the expectation of return,
provisional government. See GOVERNMENT,
provisional injunction. See preliminary injunction
under INJUNCTION.
provisional partition. See PARTITION,
provisional patent application. See provisional applica
tion under PATENT APPLICATION,
provisional remedy. See REMEDY,
provisional right. Patents. The right to obtain a reason
able royalty for use of a patented invention or process
by an infringer with actual notice during the period
between the publication ofa patent application and the
time a patent is issued . The right is only available if
the invention as claimed in the issued patent is sub
stantially identical to the invention as claimed in the
published application. 35 USCA  154.
provisional seizure. See ATTACHMENT (1).
provisione hominis (pr<l-vizh-ee-oh-nee hom-<l-nis).
[Law Latin] Hist. By an individual's appointment.
The phrase referred to heirs that a testator appoints, as
distingUished from those who succeed by law.
provisione legis (prd-vizh-ee-oh-nee lee-jis). [Law Latin]
Hist. By provision oflaw.
"Heirs who succeed according to the rules of law regulat
ing succession, without the consent or appointment of
their ancestor, are said to succeed provisione legis, and
are known as heirs-at-Iaw." John Trayner, Trayner's Latin
Maxims 494 (4th ed. 1894).
provisione tenus (prd-vizh-ee-oh-nee ten-ds). [Law
Latin] Hist. To the extent of the provision.
provision of a fine. Hist. A proclamation made after
the conveying ofland by fine, read aloud in court 16
times -four times in the term when the fine was made,
and four times in the three succeeding terms.
Provisions of Oxford. Hist. Duri ng the reign of Henry
III, a constitution created by the Mad Parliament and
forming the King's advisory council that met with a
group ofbarons several times a year to handle the coun
try's affairs and resolve grievances, esp. those result
ing from the King's avoidance ofhis obligations under
Magna Carta . The Provisions were effective until the
baron uprising in 1263 under Simon de Montfort.
proviso (pr;l-vI-zoh). (ISc) 1. A limitation, condition, or
stipulation upon whose compliance a legal or formal
document's validity or application may depend. 2.
In drafting, a provision that begins with the words
provided that and supplies a condition, exception, or
addition.
provisor. 1. Hist. A provider of care or sustenance. 2.
Eccles. law. A person nominated by the pope to be the
next incumbent of a benefice that is vacant or about to
become vacant.
provocation, n. (ISc) 1. The act ofinciting another to do
something, esp. to commit a crime. 2. Something (such
as words or actions) that affects a person's reason and
self-control, esp. causing the person to commit a crime impulsively. [Cases: Sentencing and Punishment (;::J
1675.] -provoke, vb. provocative, adj.
adequate provocation. (1842) Something that would
cause a reasonable person to act without self-control
and lose any premeditated state of mind . The usual
form of adequate provocation is the heat of passion.
Adequate provocation can reduce a criminal charge,
as from murder to voluntary manslaughter. -Also
termed adequate cause; reasonable provocation. See
HEAT OF PASSION. Cf. SELF-DEFENSE. [Cases: Homicide
(;::J673.]
reasonable provocation. See adequate provocation.
provost marshal. Military law. A staff officer who super
vises a command's military police and advises the com
mander.
proxenete (prok-sd-neet). [Latin fro Greek] Roman & civil
law. 1. A person who negotiates or arranges the terms
of a contract between parties; a broker. 2. [Greek] A
person who negotiates a matchmaker.
Also termed proxeneta.
proximate (prok-sa-mit), adj. (17c) 1. Immediately
before or after. 2. Very near or dose in time or space.
Cf. IMMEDIATE. proximateness, n.
proximate cause. See CAUSE (1).
proximate consequence. (1840) A result following an
unbroken sequence from some (esp. negligent) event.
[Cases: Negligence (;::J383-387.]
proximate damages. See DAMAGES.
proximity. (ISc) The quality or state of being near in
time, place, order, or relation.
proximus pubertati (prok-s<l-mds pyoo-bar-tay-tr).
[Latin] Roman law. Near puberty hence likely to
know right from wrong.
proxy, n. (ISc) 1. One who is authorized to act as a sub
stitute for another; esp., in corporate law, a person who
is authorized to vote another's stock shares. Cf. absentee
vote under VOTE (1). [Cases: Corporations 198(1);
Securities Regulation (;::J49.l0-49.30.] 2. The grant
ofauthority by which a person is so authorized. 3. The
document granting this authority. Also termed (for
sense 3 in Roman law) procuratorium.
proxy contest. A struggle between two corporate factions
to obtain the votes of uncommitted shareholders . A
proxy contest usu. occurs when a group of dissident
shareholders mounts a battle against the corporation's
managers. -Also termed proxy fight. [Cases: Corpo
rations (;::J 198(3).]
proxy directive. A document that appoints a surrogate
decision-maker for the declarant's healthcare deci
sions. Cf. ADVANCE DIRECTIVE; INSTRUCTION DIREC
TIVE; LIVING WILL.
proxy marriage, See MARRIAGE (3).
proxy solicitation. A request that a corporate share
holder authorize another person to cast the sharehold
er's vote at a corporate meeting. [Cases: Corporations
(;::J 198(3); Securities Regulation (;::J49.11.]

1347 puberty
proxy statement. An informational document that
accompanies a proxy solicitation and explains a
proposed action (such as a merger) by the corporation.
[Cases: Corporations \;=> 198(3); Securities Regulation
\;=>49.19.]
PRP. abbr. POTENTIALLY RESPONSIBLE PARTY.
prudent, adj. (14c) Circumspect or judicious in one's
dealings; cautious. prudence, n.
prudent-investor rule. (1960) Trusts. The principle
that a fiduciary must invest in only those securities
or portfolios of securities that a reasonable person
would blJY. The origin of the prudent-investor rule
is Harvard College v. Amory, 26 Mass. 446 (1830). This
case stressed two points for a trustee to consider when
making investments: probable income and probable
safety. The trustee must consider both when making
investments. Originally termed the prudent-man rule,
the Restatement (Third) ofTrusts changed the term to
prudent-investor rule. -Also termed prudent-person
rule. [Cases: Trusts \;=>217.3(5).J
prudent-operator standard. See REASONABLY-PRUDENT
OPERATOR STANDARD.
prudent person. See REASONABLE PERSON.
prudent-person rule. See PRUDENT-INVESTOR RULE.
prurient (pruur-ee-;mt), adj. (17c) Characterized by or
arousing inordinate or unusual sexual desire <films
appealing to prurient interests>. See OBSCENITY.
prurience, n.
PRWORA. abbr. PERSONAL RESPONSIBILITY AND WORK
OPPORTUNITY RECONCILIATION ACT.
p.s. abbr. (usu. cap.) 1. Public statute. See PUBLIC LAW
(2). 2. Postscript.
pseudo-foreign-corporation statute. A state law regu
lating foreign corporations that either derive a specified
high percentage oftheir income from that state or have
a high percentage oftheir stock owned by people living
in that state. [Cases: Corporations (,.'='636.]
pseudograph (soo-d<>-graf). A false writing; a forgery.
pseudo-guarantee treaty. See guarantee treaty under
TREATY (1).
pseudonym (sood-<>-nim), n. A fictitious name or
identity. Cf. ALIAS. [Cases: Federal Civil Procedure
101; Names 10; Parties <>=>6


. Cf. ALIAS. [Cases: Federal Civil Procedure
101; Names 10; Parties <>=>67,73.] -pseudony
mous (soo-don-a-m<>s), adj. -pseudonymity (sood
a-nim-a-tee), n.
pseudonymous work. See WORK (2).
pseudopresumption of law. See presumption of law
under PRESUMPTION.
pseudo-stepparent adoption. See second-parent
adoption under ADOPTION.
PSI. abbr. PRESENTENCE INVESTIGATION REPORT.
psychiatric (sI-kee-at-rik), adj. Ofor relating to the study
or treatment ofmental, emotional, and behavioral dis
orders by medical doctors trained in the field of psy
chiatry. psychiatric examination. Criminal law. An analysis
performed by a psychiatrist to determine a defendant's
mental state . A defendant in a criminal prosecution
may undergo a psychiatric examination to determine
competence to stand trial or to establish a defense
based on some mental condition, such as insanity.
Also (more broadly) termed mental examination. See
INSANITY DEFENSE; COMPETENCY (2). Cf. competency
proceeding under PROCEEDING; SUBSTANTIAL-CAPAC
ITY TEST. cr. INDEPENDENT MENTAL EVALUATION.
[Cases: Mental Health G'::::434.]
psychological abuse. See emotional abuse under
ABUSE.
psychological fact. See FACT.
psychological father. See psychological parent under
PARENT.
psychological mother. See psychological parent under
PARENT.
psychological parent. See PARENT.
psychopath (sl-ka-path), n. (1885) 1. A person with a
mental disorder characterized by an extremely antiso
cial personality that often leads to aggressive, perverted,
or criminal behavior.  The formal psychiatric term for
the mental illness from which a psychopath suffers is
antisocial personality disorder. 2. Loosely, a person who
is mentally ill or unstable. -Also termed sociopath.
[Cases: Mental Health <8='3.] psychopathy (si-kop
<>-thee), n. psychopathic (sI-k<>-path-ik), adj.
psychotherapist-client privilege. See psychotherapist-
patient privilege under PRIVILEGE (3).
psychotherapist-patient privilege. See PRIVILEGE (3).
PTA. abbr. PATENT-TERM ADJUSTMENT.
PTI. See previously taxed income under INCOME.
PTO. abbr. Patent and Trademark Office. See UNITED
STATES PATENT AND TRADEMARK OFFICE.
PTO Code ofProfessional Responsibility. Disciplinary
rules and canons ofethics for practicing before the U.S.
Patent and Trademark Office . The Code is found at 37
CFR  10.20-10.112. Often shortened to PTO Code.
[Cases: Patents (;:;;97.]
PTP. See publicly traded partnership under PARTNER
SHIP.
puberes (pyoo-b<>-reez), n. pl. [Latin] Roman law.
Children who have reached puberty, whether or not
they have reached the age ofmajority.
puberty. 1. The stage ofphYSical development in which a
person takes on secondary sexual characteristics, when
it becomes possible to reproduce. In females, the
beginning of this stage is marked by the menarche. 2.
Hist. The earliest age at which one could presumptively
consent and to legally enter into a binding marriage.
At English common law, children became marriageable
at the onset oflegal puberty (age 12 for girls and 14 for
boys). At French civil law, a marriage was invalid ifcon
tracted before the end oflegal puberty (age 15 for girls
and 18 for boys). An underage spouse had the power to

1348 Pub.L.
void the marriage. -Also termed (in English common
law) age ofdiscretion.
Pub. L. abbr. PuBLIC LAW (2).
public, adj. (14c) 1. Relating or belonging to an entire
community, state, or nation. [Cases: Municipal Cor
porations C::='721.] 2. Open or available for all to use,
share, or enjoy. 3. (Of a company) having shares that
are available on an open market. [Cases: Corporations
public, n. (16c) 1. The people of a nation or community
as a whole <a crime against the public>. 2. A place open
or visible to the public <in public>.
Public Access to Court Electronic Records. A computer
system by which subscribers can obtain online infor
mation from the federal courts, including information
from a court's docket sheet about the parties, filing, and
orders in a specific case. Abbr. PACER.
public accommodation. See ACCOMMODATION.
public act. See PUBLIC LAW (2).
public action. See civil action under ACTION (4).
publica delicta (p::lb-li-b di-lik-t;l). [Latin] Roman
law. Public wrongs; crimes. See DELICT. Cf. PRIVATA
DELICTA.
public administration. See ADMINISTRATION.
public administrator. See ADMINISTRATOR (2).
public advocate. See ADVOCATE.
public agency. See AGENCY (3).
public agent. See AGENT (2).
publican (p::lb-li-k;ln). 1. A person authorized by license
to keep a public house for consumption of alcoholic
beverages on or off the premises. 2. PUBLICANUS.
publican us (p;lb-li-kay-n;ls). (Latin] Hist. Roman law.
A tax collector. A publicanus was described as "a
farmer ofthe public revenue," although the publicanus
reaped only the money from that sown by the labor of
others. Often shortened to publican.
public appointment. See APPOINTMENT (1).
publication, n. (14c) 1. Generally, the act ofdeclaring or
announcing to the public. 2. Copyright. The offering
or distribution of copies of a work to the public. -At
common law, publication marked the dividing line
between state and federal protection, but the Copyright
Act of1976 superseded most ofcommon -law copyright
and thereby diminished the significance ofpublica
tion. Under the Act, an original work is considered
published only when it is first made publicly available
without restriction. [Cases: Copyrights and Intellectual
Property C::='31.]
''The concept of publication was of immense importance
under the 1909 Act. It became a legal word of art, denoting
a process much more esoteric than is suggested by the lay
definition of the term. That it thus evolved was due largely
to the American dichotomy between common law and stat
utory copyright, wherein the act of publication constituted
the dividing line between the two systems of protection
[state and federal]." 1 Melville B. Nimmer & David Nimmer,
Nimmer on Copyright  4.01, at 4-3 (Supp. 1997). divestitive publication. Archaic. The public distribu
tion of an author's work on a scale large enough to
divest the author of any claim to state common-law
copyright protection . The Copyright Act of 1976
preempted most common-law copyright. -Some
times (erroneously) written divestive publication.
general publication. Distribution of an author's work
to the public, as opposed to a selected group, whether
or not restrictions are placed on the use ofthe work. _
Before the Copyright Act of 1976, a general publica
tion was generally held to divest common-law rights
in a work. Rather, the author was deemed to have
dedicated the work to the public. Cf. limited publi
cation. [Cases: Copyrights and Intellectual Property
C;::;)31.]
investitive publication. Archaic. The public distribu
tion of an author's work on a scale large enough to
qualify for federal statutory copyright protection .
Since 1976 copyright has protected works since their
creation, rather than their publication.
limited publication. Distribution of copies of an
author's work to a selected group for a limited purpose
and with no permission to copy the work, at a time
when copies are not available to the general public.
 Before the Copyright Act of 1976 made publica
tion irrelevant, courts distinguished between limited
publication and general publication to decide whether
federal copyright laws applied. Under that Act, a work
published before January 1,1978 without proper
copyright notice entered the public domain unless
the publication was limited. -Also termed private
publication. Cf. general publication. [Cases: Copy
rights and Intellectual Property C::='31.J
private publication. See limited publication.
3. Defamation. The communication of defamatory
words to someone other than the person defamed .
The communication may be in any form, verbal or non
verbal. [Cases: Libel and Slander C::='23.]
"Publication means the act of making the defamatory
statement known to any person or persons other than the
plaintiff himself. It is not necessary that there should be
any publication in the popular sense of making the state
ment public. A private and confidential communication to
a single indiVidual is sufficient. Nor need it be published in
the sense of being written or printed; for we have seen that
actions as well as words may be defamatory. A communi
cation to the person defamed himself, however, is not a
sufficient publication on which to found civil proceedings;
though it is otherwise in the case of a criminal prosecution,
because such a communication may provoke a breach of
the peace. Nor does a communication between husband
and wife amount to publication; domestic intercourse
of this kind is exempt from the restrictions of the law of
libel and slander. But a statement by the defendant to the
wife or husband of the plaintiff is a ground of action."
R.F.V. Heuston, Salmond on the Law ofTorts 154 (17th ed.
1977).
"The publication of a libel might be in the form of a book,
pamphlet or newspaper, but nothing of that nature is
required. A letter sent to a single individual is sufficient."
Rollin M. Perkins & Ronald N. Boyce, Criminal Law 489 (3d
ed. 1982).

1349
4. Wills & estates. The formal declaration made by a
testator when signing the will that it is the testator's
will.  There is no requirement that the provisions of
the will or the identities ofthe beneficiaries be revealed
to the witnesses.
publication-quality drawings. Patents. Illustrations or
drawings filed with a patent application and capable of
being scanned. [Cases: Patents C=> 100.]
publication right. Copyright. The right of an author
or artist to decide when to reveal or display a creative
work. Publication is one ofthe moral rights ofartists
recogniz.ed in civil-law countries and much ofEurope,
but largely unavailable in the United States. -Also
termed right ofdisclosure. [Cases: Copyrights and Intel
lectual Property (;:="36.]
public attorney. See ATTORNEY (2).
public authority. See AUTHORITY (3).
pUblic-authority justification. See JUSTIFICATION.
publica vindicta (pab-Ii-k;l vin-dik-t;l). [Latin] Hist. The
protection of the public interest.
public-benefit corporation. See public corporation (3)
under CORPORATION.
public bill. See BILL (3).
public blockade. See BLOCKADE.
public boundary. See BOUNDARY.
public building. A building that is accessible to the
public; esp., one owned by the government. [Cases:
States C::>88.]
Public Buildings Service. A unit in the General Services
Administration responsible for constructing federal
buildings and managing federally owned and leased
property through 11 regional offices. Abbr. PBS.
[Cases: United States C=>57.]
public carrier. See common carrier under CARRIER.
public character. See PUBLIC FIGURE.
public commissioner. See PROSECUTOR (1).
public contract. See CONTRACT.
Public Contracts Act. See WALSH-HEALEY ACT.
public controversy. See CONTROVERSY.
public-convenience-and-necessity standard. (1964)
A common criterion used by a governmental body to
assess whether a particular request or project should
be granted or approved.
public corporation. See CORPORATION.
public debt. See DEBT.
public defender. (1827) A lawyer or staff of lawyers, usu.
publicly appointed and paid, whose duty is to repre
sent indigent criminal defendants. Often shortened
to defender. -Abbr. P.D. [Cases: Criminal Law
1840.]
public delict. See DELICT.
public director. See DIRECTOR.
public disclosure ofprivate facts. See DISCLOSURE (1). public forum
public disturbance. See BREACH OF THE PEACE.
public document. See DOCUMENT.
public domain. (17c) 1. Government-owned land. 2.
Hist. Government lands that are open to entry and
settlement.  Today Virtually all federal lands are off
limits to traditional entry and settlement. 3. Intellectual
property. The universe of inventions and creative works
that are not protected by intellectual-property rights
and are therefore available for anyone to use without
charge. _ When copyright, trademark, patent, or trade
secret rights are lost or expire, the intellectual property
they had protected becomes part ofthe public domain
and can be appropriated by anyone without liability
for infringement. [Cases: Copyrights and Intellectual
Property (;:::::::>40.]
"[Plublic domain is the status of an invention. creative
work, commercial symbol, or any other creation that is
not protected by any form of intellectual property. Public
domain is the rule: intellectual property is the exception."
1J. Thomas McCarthy, McCarthy on Trademarks and Unfair
Competition  1.01 [2), at 1-3 (3d ed. 1996).
public-duty doctrine. (1976) Torts. The rule that a
governmental entity (such as a state or municipality)
cannot be held liable for an individual pla