necropsy. [Cases: Coroners 2. The evidence of
one's own senses.
"To a rational man of perfect organization, ... the best
and highest proof of which any fact is susceptible is the
evidence of his own senses. Hence autopsy, or the evidence
of one's own senses, furnishes the strongest probability
and indeed the only perfect and indubitable certainty of
the existence of any sensible fact." Centry v. McMinnis, 3
Dana 382 (1835) (as quoted in John H. Wigmore, A Students'
Textbook of the Law of Evidence 214 (1935)).
autoptic evidence (aw-top-tik). See demonstrative
evidence under EVIDENCE.
autoptic proference (proh-far-;mts). 1. The presentation
of an item for inspection by the court. 2. See demon
strative evidence under EVIDENCE. [Cases: Criminal
Law <>404.35; Evidence <>188.]

155
"Yet another form of proof that may present difficulties in
defining evidence is what Wigmore calls 'autoptic profer
ence.' By this barbarism, the learned author was referring
to those few cases in which it is possible to bring before
the jury the material fact itself, rather than evidence of
the fact." 22 Charles Alan Wright & Kenneth W. Graham Jr.,
Federal Practice and Procedure  5163, at 33 (1978).
autre action pendant (oh-tr;l ak-see-awn pahn-dahn).
[Law French] Another action pending. This phrase
was formerly used in pleas of abatement.
autre droit (oh-tr;l drwah). [Law French] In right of
another. This phrase describes the manner in which
a trustee holds property for a beneficiary.
autrefois (oh-tr;l-fwah or oh-t;lr-foyz). [Law French] On
another occasion; formerly.
autrefois acquit (;l-kwit or a-kee). [Law French "previ
ously acquitted"] A plea in bar of arraignment that
the defendant has been acquitted of the offense.
Also termed former acquittal. See DOUBLE JEOPARDY.
[Cases: Criminal Law C=>289-297; Double Jeopardy
C=>100.]
"Suppose that a transgressor is charged and acquitted
for lack of evidence, and evidence has now come to light
showing beyond doubt that he committed the crime.
Even so, he cannot be tried a second time. He has what is
termed, in legal Frenglish, the defence of autrefois acquit.
Similarly, if he is convicted, even though he is let off very
lightly, he cannot afterwards be charged on fresh evidence,
because he will have the defence of autrefois convict. These
uncouth phrases have never been superseded, though they
might well be called the defence of 'previous acquittal'
and 'previous conviction'; and 'double jeopardy' makes
an acceptable generic name for both." Glanville Williams,
Textbook of Criminal Law 24 (1978).
autrefois attaint (;l-taynt). Hist. A plea in bar that the
defendant has already been attainted for one felony
and therefore cannot be prosecuted for another.
This plea was abolished in 1827.
autrefois convict. [Law French "previously convicted"]
A plea in bar of arraignment that the defendant has
been convicted ofthe offense. See DOUBLE JEOPARDY.
[Cases: Criminal Law C=>289-297; Double Jeopardy
C=>lOS.]
autre vie (oh-tr;l vee). [Law French "another's life"] 1. See
PUR AUTRE VIE. 2. See VIE.
auxiliary (awg-zil-y;l-ree), adj. 1. Aiding or supporting.
2. Subsidiary. 3. Supplementary.
auxiliary covenant. See COVENANT (1).
auxiliary jnrisdiction. See assistant jurisdiction under
JURISDICTION.
auxiliator (awg-zil-ee-ay-t;lr), n. [Latin] Hist. A helper;
an assistant.
auxilium (awg-zil-ee-;lm), n. [Latin] Hist. Aid; esp.,
compulsory aid such as a tax or tribute to be paid by a
vassal to a lord as an incident of the tenure by knight's
service.
auxilium ad filium militem faciendum etfiliam mari
tandam (awg-zil-ee-;lm ad fil-ee-;lm mil-;l-tem fay
shee-en-d;lm et fil-ee-am mar-;l-tan-d;lm), n. [Law
Latin] Hist. A writ ordering a sheriff to levy a tax toward average
the knighting ofa son and the marrying of a daughter
oftenants in capite of the Crown.
auxilium curiae (awg-zil-ee-;lm kyoor-ee-I or kyoor
ee-ee). [Latin] Hist. A court order summoning a party
to appear and assist another party already before the
court.
auxilium regis (awg-zil-ee-;lm ree-jis), n. [Latin] Hist.
The Crown's tax levied for royal use and public service,
such as a tax granted by Parliament.
auxilium vice comiti (awg-zil-ee-;lm VI-see kom-;l-tr), n.
[Latin] Hist. An ancient tax paid to sheriffs.
avail, n. (ISc) 1. Use or advantage <of little or no avail>.
2. (pI.) Profits or proceeds, esp. from a sale ofproperty
<the avails of the trust fund>.
available, adj. Legally valid <available claims> <avail
able defenses>.
available for work, adj. (Of a person) ready, willing, and
able to accept temporary or permanent employment
when offered.
availment, n. (17c) The act of making use or taking
advantage of something for oneself <availment of the
benefits of public office>. -avail, vb.
avail of marriage. See VALOR MARITAGIl.
aver (;l-var), vb. (ISc) To assert positively, esp. in a
pleading; to allege.
average, n. 1. A single value that represents the midpoint
of a broad sample of subjects; esp., in mathematics,
the mean of a series. 2. The ordinary or typical level;
the norm. 3. Maritime law. Accidental partial loss or
damage to an insured ship or its cargo during a voyage.
[Cases: Shipping C=> 186-202.] -average, vb. & adj.
extraordinary average. A contribution by all the
parties concerned in a commercial voyage -whether
for vessel or cargo -toward a loss sustained by some
of the parties in interest for the benefit of all.
general average. Average resulting from an intentional
partial sacrifice ofship or cargo to avoid total loss .
The liability is proportionately shared by all parties
who had an interest in the voyage. -Abbr. GA.
Also termed gross average; general-average contribu
tion. [Cases: Shipping C=>186-202.]
"[Gleneral average refers to certain extraordinary sacrifices
made or expenses incurred to avert a peril that threat
ens the entire voyage. In such a case the party sustaining
the loss confers a common benefit on all the parties to
the maritime venture. As a result the party suffering the
loss has a right -apart from contract or tort -to claim
contribution from all who participate in the venture. The
doctrine of general average is thus an equitable principle
derived from the general maritime law. General average
is an exception to the principle of particular average that
losses lie where they fall; rather the loss becomes 'general,'
meaning that it is spread ratably among all the parties
involved in the maritime adventure. The doctrine of general
average is of ancient vintage, and can be traced back to
remotest antiquity." ThomasJ. Schoenbaum, Admiralty and
Maritime Law  161, at 522-23 (1987).
particular average. Average resulting from an acci
dental partial loss or damage. Any average that

is not general is termed particular. The liability is
borne solely by the person who suffered the loss.
Also termed simple average; partial average; petty
average.
4. Hist. A service, esp. one of carriage, due from a
feudal tenant to a lord. The average is mentioned
in the Domesday Book, but the exact nature of the
service is unclear. Based on etymological studies, some
authorities believe the term referred to the performance
of work with or by beasts of burden. But because the
term's origin is unclear, this theory is not universally
accepted.
average adjuster. See ADJUSTER.
average bond. See general-average bond under BOND
(2).
average cost. See COST (1).
average daily balance. See DAILY BALANCE.
average gross sales. See SALE.
average tax rate. See TAX RATE.
average variable cost. The average cost per unit ofoutput,
arrived at by dividing the total variable expenses ofpro
duction by the total units of output. See COST (1). Cf.
LONG-RUN INCREMENTAL COST.
averaging down. An investment strategy in which shares
in the same company are purchased at successively
lower prices to achieve a lower average cost basis than
the first purchase . An investor may buy any number
ofshares in each transaction, not necessarily the same
number each time. Cf. AVERAGING UP.
averaging up. An investment strategy in a rising market
in which equal numbers ofshares in the same company
are purchased at successively higher prices to reduce
the investment's average cost basis . For example, if
an investor buys an equal number ofshares at $10, $13,
$15, and $lS, the average cost basis per share is $14. Cf.
AVERAGING DOWN.
averment (;:)-v;Jr-m;mt), n. (lSc) A positive declaration or
affirmation offact; esp., an assertion or allegation in a
pleading <the plaintiff's averment that the defendant
ran a red light>. Cf. ASSEVERATE.
immaterial averment. (lSc) An averment that alleges
something in needless detail; a statement that goes
far beyond what is in issue. This type of averment
may be ordered struck from the pleading. [Cases:
Federal Civil Procedure ~6S2, 1125; Pleading C::::o
22,362(3), 364.]
negative averment. (lSc) An averment that is negative
in form but affirmative in substance and that must
be proved by the alleging party.  An example is the
statement "she was not old enough to enter into the
contract," which is more than just a simple deniaL
Cf. TRAVERSE. [Cases: Federal Civil Procedure C::::o
741; Pleading C='7S, 119-123.]
averment of notice. A statement in a pleading that
someone else has been properly notified about some
fact, esp. in special actions ofassumpsit. See NOTICE. aviation easement. See avigational easement under
EASEMENT.
aviation insurance. See INSURANCE.
avigational easement. See EASEMENT.
avigation easement. See avigational easement under
EASEMENT.
a vinculo matrimonii (ay ving-ky;:)-loh ma-tp-moh
nee-I). [Latin] From the bond of matrimony. -Often
shortened to a vinculo. See divorce a vinculo matrimonii
under DIVORCE.
avizandum (av-i-zan-d;:)m). [Law Latin] Scots law. Delib
eration; advisement.  The judge is said later to "advise"
the case -that is, to give an opinion.
''To make avizandum with a process, or part of it, is to take
it from the public court to the private consideration of the
judge." William Bell, Bel/'s Dictionarv and Digest ofthe Law
ofScotland 82 (George Watson ed., 7th ed. 1890).
avoid, vb. (14c) To render void <because the restric
tive covenant was overbroad, the court avoided it> .
Because this legal use of avoid can be easily confused
with the ordinary sense of the word, the verb to void
is preferable.
avoidable, adj. 1. Not inevitable; subject to prevention
<an avoidable accident>.
practically avoidable. (Of harm) capable ofbeing elim
inated in whole or substantial part without incurring
prohibitive expense or hardship.
2. Capable ofbeing refrained from <avoidable habits>.
3. Voidable.
avoidable-consequences doctrine. See MITIGATION-OF
DAMAGES DOCTRINE.
avoidable cost. See COST (1).
avoidance, n. (l4c) 1. The act of evading or escaping
<avoidance of tax liability>. See TAX AVOIDANCE. 2.
The act of refraining from (something) <avoidance
of an argument>. 3. RESCISSION (1) <avoidance of the
agreement>. 4. VOIDANCE <avoidance ofa penalty>. 5.
ANNULMENT (1) <avoidance of the marriage>. 6. CON
FESSION AND AVOIDANCE <the defendant filed an avoid
ance in an attempt to avert liability>. -avoid, vb.
avoiding power. See POWER (5).
avoision (.:J-voy-zh;:)n), n. An ambiguous act that falls
between legal avoidance and illegal evasion of the law.
 The term, coined by Arthur Seldon, an economist, is
a blend of evasion and avoidance. Avoision usu. refers
to financial acts that are not clearly legal tax avoid
ance or illegal tax evasion, but it may appear in other
contexts.
"The book is in three parts, divided into tiny chapter
lets. forty-two in all. The first part takes up what Katz
calls 'avoision': a fusion of 'avoidance' and 'evasion' that
denotes cases in which it is unclear whether a person's
conduct should be considered lawful avoidance of the
law's prohibitions or illegal evasion. Two actresses are
vying for the same part. Mildred knows that Abigail has
been unfaithful to her husband. If she threatens to tell the
husband unless Abigail forgoes the audition, that would
be blackmail, and


. If she threatens to tell the
husband unless Abigail forgoes the audition, that would
be blackmail, and a crime. Instead she tells Abigail that she
is mailing a letter addressed to the husband that reveals

Abigail's infidelity and that has been timed to arrive the
morning of the audition. Knowing that Abigail will stay
home to intercept the letter, Mildred will have achieved the
same end as she would have done by committing black
mail, yet her conduct is not criminal." Richard A. Posner,
"The Immoralist," New Republic, July 15, 1996, at 38.
avoucher (;3-vow-ch;3r). 1. Hist. A tenant's calling upon a
warrantor of title to the land to help the tenant defend
the title. 2. One who declares a probable truth, cor
roborates, confirms, or confesses.
avoutry. See ADULTERY.
avowal (;3-VOW-;3l), n. 1. An open declaration. 2. OFFER
OF PROOF..-avow, vb.
avowant (;3-vow-;3nt), n. A person who makes avowry in
an action of replevin.
avowee. See ADVOCATUS.
avowry (;3-vow-ree), n. Common-law pleading. An
acknowledgment -in an answer to a replevin action
that one has taken property, and a justification for that
taking <the defendant's avowry was based on alleged
damage to the property by the plaintiff>. Cf. COGNI
zANcE (4). [Cases: Replevin ~64.] -avow, vb.
avowter. Hist. An adulterer. The crime was called
avowtry. -Also spelled advouterer; avowterer; avouter;
advowter.
avowtry. See ADULTERY.
avulsion (;3-v;3l-sh;3n), n. (17c) 1. A forcible detachment
or separation. 2. A sudden removal of land caused by
change in a river's course or by flood . Land removed
by avulsion remains the property ofthe original owner.
Cf. ALLUVION; ACCRETION (1); DELICTION; EROSION. 3.
A tearing away ofa body part surgically or accidentally. [Cases: Navigable Waters ~4S; Waters and Water
Courses ~94.1 -avulse, vb.
avunculus (;3-v;mgk-y;3-I;3s), n. [Latin] Roman & civil law.
A maternal uncle; one's mother's brother.
avunculus maximus (mak-s;3-m;3s). See ABAVUNCU
LUS.
avus (av-;3s or ay-v;3s), n. [Latin] Roman & civil law. A
grandfather.
award, n. (I4c) A final judgment or decision, esp. one by
an arbitrator or by a jury assessing damages. -Also
termed arbitrament.
award, vb. (14c) To grant by formal process or by judicial
decree <the company awarded the contract to the low
bidder> <the jury awarded punitive damages>.
award in interference. See PRIORITY AWARD.
away-going crops. See CROPS.
AWOL. abbr. (1921) Absent without leave; missing
without notice or permission. [Cases: Armed Services
~36;Military Justice ~667.]
axiom (ak-see-;3m), n. (ISc) An established principle that
is universally accepted within a given framework of
reasoning or thinking <"innocent until proven guilty"
is an age-old axiom of criminal law>. -axiomatic
(ak-see-;3-mat-ik), adj.
ayant cause (aY-;3nt). Civil law. 1. One to whom a right
has been assigned by will, gift, sale, or exchange; an
assignee. 2. One who has a "cause" or standing in one's
own right.
aye (I), n. Parliamentary law. An affirmative vote.
ayel (aY-;3I). See AIEL.
ayle (ayl). See AIEL.

B
B. abbr. BARON (3).
B2B. abbr. BUSINESS-TO-BUSINESS <a B2B transac
tion>.
B2C. abbr. BUSINESS-TO-CONSUMER <a B2C transac
tion>.
BA. abbr .. See banker's acceptance under ACCEPTANCE
(4)
baby act, pleading the. Slang. The act of asserting a
person's infancy as a defense to a contract claim.
baby-bartering. See BABY-SELLING.
baby bond. See BOND (3).
baby-brokering. See BABY-SELLING.
Baby Doe. (1974) A generic pseudonym for a very young
child involved in litigation . Today a gender designa
tion is often added: Baby Girl Doe or Baby Boy Doe. The
generic term is used to shield the child's identity.
Baby FTC Act. (1988) A state statute that, like the Federal
Trade Commission Act, outlaws deceptive and unfair
trade practices.
Baby Moses law. See SAFE-HAVEN LAW.
baby-selling. The exchange of money or something of
value for a child . All states have prohibitions against
baby-selling. It is not considered baby-selling for pro
spective adoptive parents to pay money to a birth
mother for pregnancy-related expenses. -Also termed
baby-brokering; bally-bartering.
baby-snatching. See child-kidnapping under KIDNAP
PING.
BAC. abbr. BLOOD ALCOHOL CONTENT.
bachelor. 1. An unmarried man. 2. The usual title of the
first degree that is conferred on a university graduate. 3.
English law. A member of one of the orders of chivalry,
such as the Order of the Bath. -Also termed (in sense
3) knight bachelor.
bachelor oflaws. See LL.B.
back, vb. (ISc) 1. To indorse: to sign the back of a negotia
ble instrument. 2. To sign so as to show acceptance or
approval. 3. To sign so as to indicate financial respon
sibility for (someone or something). 4. Hist. (Of a mag
istrate) to sign (a warrant issued in another county) to
permit execution in the signing magistrate's county.
"[Although) the warrant of the judge of the Court of King's
Bench extends over the whole realm, ... that of ajustice of
the peace cannot be executed out of his county, unless it be
backed. that is, indorsed by ajustice of the county, in which
it is to be carried into execution. It is said. that formerly
there ought in strictness to have been a fresh warrant in
every fresh county, but the practice of backing warrants
has long been observed, and was at last sanctioned by
the statute 23 Geo. 2. c. 26. s. 2, and 24 Geo. 2. c. 55." 1 Joseph Chitty, A Practical Treatise on the Criminal Law 45
(2d ed. 1826).
backadation. See BACKWARDATION.
backberend (bak-ber-;md). [Old English] Hist. 1. The
bearing of stolen goods upon one's back or about
one's person . Backberend is sometimes modernized
to backbearing. 2. A person caught carrying stolen
goods. Also spelled bacberende: backberinde. Cf.
HANDHABEND.
"Backberinde signifieth bearing upon the Back, or about a
Man. Bracton useth it for a Sign or Circumstance of Theft
apparent, which the Civilians call Furtum manifestum .... "
Giles Jacob, A New Law-Dictionary (8th ed. 1762).
back carry. Hist. The crime of carrying, on one's back,
unlawfully killed game.
backdate, vb. (1944) 1. To put a date earlier than the
actual date on (something, as an instrument) . Under
UCC  3-113(a), backdating does not affect an instru
ment's negotiability. Cf. POSTDATE; ANTEDATE (1). 2.
To make (something) retroactively valid.
back door to Berne. Copyright. A U.S. copyright owner's
simultaneous publication of the copyrighted work in
both the United States and in a Berne Convention
country in order to obtain Berne Convention protec
tion. -This backdoor method was used before March
1989, when the United States became a member of the
Berne Convention. [Cases: Copyrights and Intellectual
Property (:.:::> 34.]
back-end load. See load fund under MUTUAL FUND.
background of the invention. Patents. In a U.S. patent
application and any resulting patent, the section
that identifies the field of art to which the invention
pertains, summarizes the state of the art, and describes
the problem solved by the invention. _ The Background
of the Invention section usu. includes two subsections:
"Field of the Invention" and "Description of the Related
Art." A mistaken inclusion in this section of a reference
that postdates the date of invention may be construed
as an admission. [Cases: Patents (:'::::'99.]
backhaul allowance. See ALLOWANCE (1).
backing. Endorsement, esp. of a warrant by a magistrate.
See BACK (4).
back-in right. Oil & gas. A reversionary interest in an
oil-and-gas lease entitling an assignor to a share of the
working interest after the assignee has recovered speci
fied costs from production.
back lands. (17c) Generally, lands lying away from not
next to a highway or a watercourse.
backpay. The wages or salary that an employee should
have received but did not because of an employer's

159
unlawful action in setting or paying the wages or
salary. Also written back pay. Cf. FRONTPAY.
backpay award. A judicial or quasi-judicial body's
decision that an employee or ex-employee is entitled
to accrued but uncollected wages or benefits. -Some
times shortened to backpay.
backspread. Securities. In arbitrage, a less than normal
price difference in the price of a currency or commod
ity. See ARBITRAGE; SPREAD (3).
back taxes. See back tax under TAX.
back-title certificate. See BACK-TITLE LETTER.
back-title letter. An official letter from a title insurer
advising about the condition of title to land as of a
certain date . With this information, the title can be
examined from that date forward. -Also termed back
title certificate.
back-to-back loan. See LOAN.
back-to-work agreement. A contract between a union
and an employer covering the terms under which the
employees will return to work after a strike.
backwardation. Securities. A fee paid by the seller of
securities so that the buyer will allow delivery after
their original delivery date. Also termed backada
tion; inverted market.
backward integration. See INTEGRATION (5).
backwater. See WATER.
baculus (bak-ya-las or bak-a-Ias). Hist. A rod or staff
used to symbolize the conveyance of unimproved land.
See LIVERY OF SEISIN; FESTUCA.
bad, adj. Invalid or void; legally unsound <bad service
of process> <bad law>.
bad actor. See ACTOR (1).
bad-boy disqualification. Securities. An issuer's disqual
ification from certain SEC-registration exemptions as a
result of the issuer's securities-law violations.
bad-boy provision. Securities. A statutory or regulatory
clause in a blue-sky law stating that certain persons,
because of their past conduct, are not entitled to any
type of exemption from registering their securities. _
Such clauses typically prohibit issuers, officers, direc
tors, control persons, or broker-dealers from being
involved in a limited offering if they have been the
subject of an adverse proceeding concerning securi
ties, commodities, or postal fraud.
bad character. (17c) A person's propensity for or tendency
toward unlawful or immoral behavior. _ In limited cir
cumstances, proof of bad character may be introduced
into evidence to discredit a witness. Fed. R. Evid. 608,
609. See character evidence under EVIDENCE.
bad check. See CHECK.
bad-conduct discharge. See DISCHARGE (8).
bad debt. See DEBT.
bad-debt loss ratio. The proportion of a business's uncol
lectible debt to a business's total receivables. badger game
bad-debt reserve. See RESERVE.
bad faith, n. (I7c) L Dishonesty of belief or purpose <the
lawyer filed the pleading in bad faith>. Also termed
mala fides (mal-d-fI-deez).
"A complete catalogue of types of bad faith is impossible,
but the following types are among those which have been
recognized in judicial decisions: evaSion of the spirit of the
bargain. lack of diligence and slacking off, Willful rendering
of imperfect performance, abuse of a power to specify
terms, and interference with or failure to cooperate in the
other party's performance." Restatement (Second) of Con
tracts  205 emt. d (1979).
2. Insurance. An insurance company's unreasonable
and unfounded (though not necessarily fraudulent)
refusal to provide coverage in violation of the duties
of good faith and fair dealing owed to an insured .
Bad faith often involves an insurer's failure to pay the
insured's claim or a claim brought by a third party.
3. Insurance. An insured's claim against an insurance
company for an unreasonable and unfounded refusal
to provide coverage. Cf. GOOD FAITH. [Cases: Insurance
(;=>3335,3336.]- bad-faith, adj.
bad-faith enforcement. Patents. l. The filing of an
infringement action by a patentee who knows that the
accused product or process does not infringe or that


of an
infringement action by a patentee who knows that the
accused product or process does not infringe or that the
patent is invalid or unenforceable. [Cases: Patents
325.11(4).] 2. In an infringement action, a counterclaim
alleging that at the time of filing suit, the patentee knew
that the accused product or process did not infringe or
that the patent was invalid or unenforceable . A coun
terclaim for bad-faith enforcement arises under  2 of
the Sherman Act and under the common law of unfair
competition. Cf. PATENT-MISUSE DOCTRINE. [Cases:
Antitrust and Trade Regulation (;=>587(3).]
bad-faith filing, n. Bankruptcy. The act of submitting
a bankruptcy petition that is inconsistent with the
purposes of the Bankruptcy Code or is an abuse of the
bankruptcy system (that is, by not being filed in good
faith) . A court may dismiss a bankruptcy case if it
finds that the petition was filed in bad faith. [Cases:
Bankruptcy (;=> 2253.J
badge of fraud. (18c) A circumstance generally consid
ered by courts as an indicator that a party to a trans
action intended to hinder or defraud the other party,
such as a transfer in anticipation of litigation, a trans
action outside the usual course of business, or a false
statement. See FRAUD. [Cases: Fraud (::;=3; Fraudulent
Conveyances (;=> 13-16.]
badge of slavery. (17c) 1. Strictly, a legal disability
suffered by a slave, such as the inability to vote or to
own property. 2. Broadly, any act of racial discrimina
tion -public or private -that Congress can prohibit
under the 13th Amendment. [Cases: Constitutional
Law (;=> 1101.]
badger game. (1858) A scheme to extort money or some
other benefit by arranging to catch someone in a com
promising position and then threatening to make that
person's behavior public.
'The 'badger game' is a blackmailing trick, usually in the
form of enticing a man into a compromising position with a

bad-man theory
woman whose real or pretended husband comes upon the
scene and demands payment under threat of prosecution
or exposure." Rollin M. Perkins & Ronald N. Boyce, Criminal
Law451 (3d ed. 1982).
bad-man theory. (1938) The jurisprudential doctrine or
belief that a bad person's view of the law represents the
best test of what the law actually is because that person
will carefully calculate precisely what the rules allow
and will operate up to the rules' limits. -Ihis theory
was first expounded by Oliver Wendell Holmes in his
essay The Path of the Law, 10 Harv. 1. Rev. 457 (1897).
In the essay, Holmes maintained that a society's legal
system is defined by predicting how the law will affect a
person, as opposed to considering the ethics or morals
supposedly underlying the law. Under Holmes's theory,
the prediction is best made by viewing the law as would
a "bad man" who is unconcerned with morals. Such
a person is not concerned with acting morally or in
accord with a grand philosophical scheme. Rather, that
person is concerned with whether and to what degree
certain acts will incur punishment by the public force
of the law. See LEGAL REALISM. Also termed predic
tion theory.
bad motive. See MOTIVE.
bads, n. Slang. In economics, the counterpart of "goods,"
characterized by a negative correlation between the
amount consumed and the consumer's wealth; speciL
the kinds of products that tend to be bought only by
poor people.
"Some products are termed 'bads' because consumption
of the product tends to decrease with increasing wealth.
Spam is one example of a bad, while beef tenderloin is
generally thought to be a good." Donald S. Chisum et aI.,
Principles of Patent Law 54 (1998).
bad title. See TITLE (2).
baga (bag-<'l). [Law Latin] Hist. A bag or purse, esp. one in
which original writs were kept by the Chancery.
bagman. Slang. (1928) A person who collects and dis
tributes illegally obtained money; esp., an intermediary
who collects a bribe for a public officiaL
bail, n. (I5c) 1. A security such as cash or a bond; esp.,
security required by a court for the release of a prisoner
who must appear in court at a future time <bail is set at
$500>. Cf RECOGNIZANCE. [Cases: Bail
bail absolute, A fiduciary bond conditioning a surety's
liability on the failure of an estate administrator,
executor, or guardian to properly account for estate
funds. See fiduciary bond under BOND (2).
cash bail. A sum of money (rather than a surety bond)
posted to secure a prisoner's release from jaiL Also
termed stationhouse bail. [Cases: Bail C;)73.]
civil bail. A bond or deposit of money given to secure
the release of a person arrested for failing to pay a
court-ordered civil debt. -The bail is conditioned on
the payment of the debt. [Cases: Bail
excessive bail. (17c) Bail that is unreasonably high con
Sidering both the offense with which the accused is
charged and the risk that the accused will not appear 160
for trial. -The Eighth Amendment prohibits exces
sive bail. [Cases: Bail
stationhouse bail. See cash bail.
2. The process by which a person is released from
custody either on the undertaking of a surety or on his
or her own recognizance. 3. Release of a prisoner on
security for a future court appearance; esp., the delivery
of a person in custody to a surety <the court refused
bail for the accused serial killer>. [Cases: Bail C=>39.]
4. One or more sureties for a criminal defendant <the
attorney stood as bail for her client>. See BAILER (1).
"As a noun, and in its strict sense, bail is the person in
whose custody the defendant is placed when released from
jail, and who acts as surety for defendant's later appear
ance in court .... The term is also used to refer to the
undertaking by the surety, into whose custody defendant is
placed, that he will produce defendant in court at a stated
time and place." 8 c.J,S. Bail  2 (1988).
bail above. See bail to the action.
bail below. See bail to the sheriff.
bail common. Hist. A fictitious surety filed by a defen
dant in a (usu. minor) civil action. -Also termed
common bail; straw bail.
"[Tlhe Common Pleas made a distinction between common
and special bail, allowing the former, in cases where the
defendant voluntarily appeared to the process, or where
the damage expressed in it appeared to be but of a trifling
amount, and requiring the latter only, when the plaintiff's
demand or the damage he had sustained appeared to be
something conSiderable. In time therefore, in common
cases, every defendant took the liberty of offering John
Doe and Richard Roe, for his bail .... " I George Crompton,
Practice Common-Placed: Rules and Cases of Practice in
the Courts of King's Bench and Common Pleas Ixi (3d ed.
1787).
bail to the action. Hist. A surety for a civil defendant
arrested by a mesne process (Le., a process issued
during the lawsuit) . If the defendant lost the
lawsuit, the bail to the action was bound either to
pay the judgment or to surrender the defendant into
custody. -Also termed bail above; special bail. Cf.
bail to the sheriff.
bail to the sheriff. Hist. A person who pledged to the
sheriff that a defendant served with process during a
civil action would appear on the writ's return day. -
Also termed bail below. Cf. bail to the action.
"This kind of bail is called bail to the sheriff, because given
to that officer, and for his security; and bail be/ow, because
subordinate or preliminary to bail to the action or speCial
bail, which is termed bail above." 1 Alexander M. Burrill, A
Law Dictionary and Glossary 174 (2d ed. 1867).
common bail. See bail common.
discretionary bail. Bail set in an amount that is subject
to judicial discretion. [Cases: Bail
special bail. See bail to the action.
straw bail. See bail common.
S. Archaic. Legal custody of a detainee or prisoner who
obtains release by giving surety for a later appearance.
6. Canadian law. A lease.
bail-a-rente. A lease in perpetuity.

161
bail emphyteotique. A renewable lease for a term of
years that the lessee may prolong indefinitely.
bail, vb. (l6c) 1. To obtain the release of (oneself or
another) by providing security for a future appearance
in court <his parents bailed him out of jail>. [Cases:
Bail C= 39.] 2. To release (a person) after receiving such
security <the court bailed the prisoner>. [Cases: Bail
C=39.] 3. To place (personal property) in someone
else's charge or trust <bail the goods with the ware
house>.
bailable, ad). (Of an offense or person) eligible for bail.
bailable offense. See OPPENSE (1).
bailable process. See PROCESS.
bail above. See bail to the action under BAIL (4).
bail absolute. See BAIL (1).
bail-a.-rente. See BAIL (6).
bail below. See bail to the sheriff under BAIL (4).
bail bond. See BOND (2).
bail bondsman. See BAILER (1).
Bail Clause. The clause in the Eighth Amendment to
the U.S. Constitution prohibiting excessive bail.  This
clause was derived from similar language in England's
Bill of Rights (1689).
bail commissioner. 1. An adjudicator or official empow
ered to hold an emergency hearing to set bail when a
hearing cannot be held during regular court hours .
A bail commissioner does not review other judge's bail
decisions. 2. An officer appOinted to take bail bonds. -
Also termed commissioner of bail. [Cases: Bail C=48.]
3. Hist. A court-appointed officer who made a written
acknowledgement of bail in civil cases.
bail common. See BAIL (4).
Bail Court. Hist. An ancillary court of Queen's Bench
responsible for ensuring that bail sureties were worth
the sums pledged (i.e., hearing justifications) and for
handling other procedural matters . The court was
established in 1830 and abolished in 1854. -Also
termed Practice Court.
bail dock. A small compartment in a courtroom used to
hold a criminal defendant during trial. -Often short
ened to dock. -Also spelled bale dock. See DOCK (3).
bailee. (16c) A person who receives personal property
from another, and has possession of but not title to
the property . A bailee is responsible for keeping
the property safe until it is returned to the owner. See
BAILMENT. [Cases: Bailment
bailee policy. See INSURANCE POLICY.
bail emphytiotique. See BAIL (6).
bail-enforcement agent. See BOUNTY HUNTER.
bailer. (16c) 1. One who provides bail as a surety for a
criminal defendant's release. -Also spelled bailor.
Also termed bail bondsman; bailsman. 2. BAILOR (1).
bailiff. (l4c) 1. A court officer who maintains order
during court proceedings . In many courts today, bailiwick
the bailiff also acts as crier, among other responsibili
ties. See CRIER. Also termed (in England and Wales)
usher; (in Scotland) macer. 2. A sheriff's officer who
executes writs and serves processes. [Cases: Sheriffs
and Constables C::J24.]
bailiff-errant. Hist. A bailiff appointed by the sheriff to
deliver writs and other process within a county. Cf.
bailiffs of franchises.
bailiffs offranchises. His!. Bailiffs who executed writs
and performed other duties in privileged districts that
were outside the Crown's (and therefore the sheriffs)
jurisdiction. Cf. bailiffs-errartt.
"Bailiffs of Franchises are those who are appointed by every
Lord within his Uberty, to do such Offices therein, as the
Bailiff Erran t does at large in the County." Thomas Blount,
Noma-Lexicon: A Law-Dictionary (1670).
bailiffs of hun dreds . Hist. Bailiffs appointed by a sheriff
to collect fines, summon juries, attend court sessions,
and execute writs and process in the county district
known as a hundred. See HUNDRED.
bailiffs of manors. Hist. Persons appointed to super
intend the estates of the nobility . These bailiffs col
lected fines and rents, inspected buildings, and took
account of waste, spoils, and misdemeanors in the
forests and demesne lands.
bound bailiff. Hist. A deputy sheriff placed under
bond to ensure the faithful performance of assigned
duties. Also termed bumbailiff
"The sheriff being answerable for the misdemesnors of
these bailiffs, they are therefore usually bound in a bond
for the due execution of their office, and thence are called
bound-bailiffs; which the common people have corrupted
into a much more homely appellation [Le., bumbailiff]." 1
William Blackstone, Commentaries on the Laws of England
334 (1765).
bumbailiff. 1. BrE. S


aries on the Laws of England
334 (1765).
bumbailiff. 1. BrE. Slang. A bailiff of the lowest rank
who performs the most menial tasks, such as arrest
ing debtors and serving writs . In British English,
"bum" is slang for a person's buttocks. Some sources
suggest that bumbailiffs are so called because they
often approached debtors from behind before arrest
ing them. 2. See bound bailiff
high bailiff. Hist. A bailiff attached to a county court,
responsible for attending court sessions, serving sum
monses, and executing orders, warrants, and writs.
special bailiff. Hist. A deputy sheriff appointed at a liti
gant's request to serve or execute some writ or process
related to the lawsuit.
bail in error. Security given by a defendant who intends
to bring a writ of error on a judgment and desires a
stay of execution in the meantime. See appeal bond,
supersedeas bond under BOND (2).
bailivia. See BAILIWICK.
bailiwick (bay-l;::l-wik). The office, jurisdiction, or district
of a bailiff; esp., a bailiffs territorial jurisdiction. -Also
termed bailivia; baliva; balliva. Cf. constablewick.
"In the early days a village was called a 'wick.' Each village
had a bailiff who was its peace officer. His authority was
limited to the territory of the wick. A bailiff was popularly

bail-jumping
referred to as a 'bailie,' and before long a bailie's wick was
expressed as his 'bailiwick.' And in time this word came
to be used to indicate the special territory over which a
peace officer exercises his authority as such. Although it
may be changed by statute, the normal situation is that
the bailiwick of a policeman is his city, the bailiwick of a
sheriff is his county and the bailiwick of a state officer,
such as a member of the Highway Patrol, is the state."
Rollin M. Perkins & Ronald N. Boyce, Criminal Law 1096
(3d ed. 1982).
bail-jumping, n. (1881) The criminal offense of failing
to appear in court after having been released on bail.
See Model Penal Code  242.8. See rUMP BAIL. [Cases:
Bail bail-jumper, n.
bailment:(16c) 1. A delivery of personal property by one
person (the bailor) to another (the bailee) who holds the
property for a certain purpose, usu. under an express
or implied-in-fact contract. -Unlike a sale or gift of
personal property, a bailment involves a change in pos
session but not in title. Cf. PAWN. [Cases: Bailment ~
1.]
"The customary definition of a bailment considers the
transaction as arising out of contract. Thus Justice Story
defines a bailment as 'a delivery of a thing in trust for some
special object or purpose, and upon a contract express
or implied, to conform to the object or purpose of the
trust' Uoseph Story, Bailments 5 (9th ed. 1878)]. There has,
however, been a vigorous dissent to this insistence on the
contractual element in bailments. Professor Williston ...
defines bailments broadly 'as the rightful possession of
goods by one who is not the owner' [4 Samuel Williston,
Law of Contracts 2888 (rev. ed. 1936)] .... It is obvious
that the restricted definition of a bailment as a delivery
of goods on a contract cannot stand the test of the actual
cases. The broader definition of Professor Williston is pref
erable." Ray Andrews Brown, The Law of Personal Property
 73, at 252,254 (2d ed. 1955).
"Although a bailment is ordinarily created by the agreement
of the parties, resulting in a consensual delivery and accep
tance of the property, such a relationship may also result
from the actions and conduct of the parties in dealing
with the property in question. A bailment relationship
can be implied by law whenever the personal property of
one person is acquired by another and held under circum
stances in which principles of justice require the recipient
to keep the property safely and return it to the owner." SA
Am. Jur. 2d Bailment  1 (1997).
actual bailment. (1821) A bailment that arises from
an actual or constructive delivery of property to the
bailee.
bailment for hire. A bailment for which the bailee is
compensated, as when one leaves a car with a parking
attendant. Also termed lucrative bailment. Cf.
bailment for mutual benefit.
bailment for mutual benefit. (1868) A bailment for
which the bailee is compensated and from which the
bailor receives some additional benefit, as when one
leaves a car with a parking attendant who will also
wash the car while it is parked. Cf. bailment for hire.
bailment for sale. A bailment in which the bailee agrees
to sell the goods on behalf of the bailor; a consign-
ment. [Cases: Bailment Sales ~457.1
bailment for sole benefit of bailor. See gratuitous
bailment. 162
constructive bailment. (1843) A bailment that arises
when the law imposes an obligation on a possessor
of personal property to return the property to its
rightful owner, as with an involuntary bailment. Cf.
involuntary bailment.
gratuitous bailment. (1811) A bailment for which the
bailee receives no compensation, as when one borrows
a friend's car. _ A gratuitous bailee is liable for loss of
the property only if the loss is caused by the bailee's
gross negligence. Also termed naked bailment;
depositum; naked deposit; gratuitous deposit; deposit;
bailment for sole benefit of bailor.
involuntary bailment. (1840) A bailment that arises
when a person accidentally, but without any negli
gence, leaves personal property in another's posses
sion. _ An involuntary bailee who refuses to return
the property to the owner may be liable for conver
sion. Also termed involuntary deposit. See aban
doned property, lost property, mislaid property under
PROPERTY. Cf. constructive bailment.
lucrative bailment. See bailment for hire.
naked bailment. See gratuitous bailment.
2. The personal property delivered by the bailor to the
bailee. [Cases: Bailment ~4.13. The contract or legal
relation resulting from such a delivery. [Cases: Bailment
4. The act of posting bail for a criminal defen
dant. 5. The documentation for the posting of bail for
a criminal defendant.
bailor (bay-lor or bay-lilr). (17c) 1. A person who delivers
personal property to another as a bailment. Also
spelled bailer. 2. BAILER (1).
bailout, n. 1. A rescue of an entity, usu. a corporation
or an industry, from financial trouble. 2. An attempt
by a business to receive favorable tax treatment of its
profits, as by withdrawing profits at capital-gain rates
rather than distributing stock dividends that would be
taxed at higher ordinary-income rates. [Cases: Internal
Revenue~37501
bailout stock. See STOCK.
bailpiece. 1. Hist. A document recording the nature of
the bail granted to a defendant in a civil action; specif.,
a surety issued to attest the act of offering bail 2. More
modernly, a warrant issued to a surety upon which the
surety may arrest the person bailed by him. -The bail
piece was filed with the court and usu. was Signed by the
defendant's sureties. See BAIL (2); RECOGNIZANCE.
Sometimes written bail piece. Cf. EXONERETUR.
bail-point scale. A system for determining a criminal
defendant's eligibility for bail, whereby the defendant
either will be released on personal recognizance or will
have a bail amount set according to the total number
of points given, based on the defendant's background
and behavior.
bail revocation. (1950) The court's cancellation of bail
previously granted to a criminal defendant. [Cases: Bail
~73.LJ
bailsman. See BAILER (1).

163
bail to the action. See BAIL (4).
bail to the sheriff. See BAIL (4).
bairn's part. See LEGITIM.
bait advertising. See BAIT AND SWITCH.
bait and switch. (1967) 1. A sales practice whereby a
merchant advertises a low-priced product to lure cus
tomers into the store only to induce them to buy a
higher-priced product.  Most states prohibit the bait
and switch when the original product is not actually
available as advertised. Cf. LOSS LEADER. Also
termed bait advertising. [Cases: Antitrust and Trade
Regulation 163, 477.] 2. The unethical practice
of offering im attractive rate or premium to induce a
person to apply for a loan or contract, with approval
contingent on some condition, and then telling the
person that the offered rate is not available but that a
higher one can be substituted. [Cases: Antitrust and
Trade Regulation 477.]
Baker v. Selden doctrine. See MERGER DOCTRINE (1).
balance, vb. (16c) 1. To compute the difference between
the debits and credits of (an account) <the accoun
tant balanced the company's books>. 2. To equalize
in number, force, or effect; to bring into proportion
<the company tried to balance the ratio of mid-level
managers to assembly-line workers>. 3. To measure
competing interests and offset them appropriately
<the judge balanced the equities before granting the
motion>. -balance, n.
balance billing. A healthcare provider's practice of
requiring a patient or other responsible party to pay any
charges remaining after insurance and other payments
and allowances have been applied to the total amount
due for the provider's services.
balanced budget. See BUDGET.
balanced economy. See ECONOMY.
balanced fund. See MUTUAL FUND.
balance of convenience. A balancing test that courts
use to decide whether to issue a preliminary injunc
tion stopping the defendant's allegedly infringing or
unfair practices, weighing the benefit to the plaintiff
and the public against the burden on the defendant. -
Also termed balance of hardship. [Cases: Injunction
(;=c 138.15.]
balance of power. Int' llaw. A relative equality of force
between countries or groups of countries, as a result of
which peace is encouraged because no country or group
is in a position to predominate.
balance of probability. See PREPONDERANCE OF THE
EVIDENCE.
balance of sentence suspended. (1942) A sentencing dis
position in which a criminal defendant is sentenced to
jail but is credited with the time already served before
sentencing, resulting in a suspension of the remaining
sentence and release of the defendant from custody. Cf.
SENTENCED TO TIME SERVED. [Cases: Sentencing and
Punishment 1158.] ballot
balance sheet. (18c) A statement of an entity's current
financial position, disclosing the value of the entity's
assets, liabilities, and owners' equity. Also termed
statement of financial condition; statement of condi
tion; statement of financial position. Cf. INCOME STATE
MENT.
balance-sheet insolvency. See INSOLVENCY.
balance-sheet test. See balance-sheet insolvency under
INSOLVENCY.
balancing test. (1951) A judicial doctrine, used esp. in
constitutional law, whereby a court measures com
peting interests as between individual rights and
governmental powers, or between state authority and
federal supremacy -and decides which interest should
prevail.
bale. A package of goods wrapped in cloth and marked
so as to be identifiable on a bill oflading.
baliva. See BAILIWICK.
ballistics. (18c) 1. The science of the motion of projec
tiles, such as bullets. 2. The study of a weapon's firing
characteristics, esp. as used in criminal cases to deter
mine a gun's firing capacity and whether a particular
gun fired a given bullet.
balliva. See BAILIWICK.
ballivo amovendo (bCl-h-voh ay-moh-ven-doh). [Latin
"a bailiff to be removed"] Hist. A writ to remove from
office a bailiff who does not have sufficient land in the
bailiwick as required by the Statute of Westminster
(1285).
balloon loan. See LOAN.
balloon note. See NOTE (1).
balloon payment. See PAYMENT.
balloon-payment mortgage. See MORTGAGE.
ballot, n. 1. An instrument, such as a paper or ball, used
for casting a vote. [Cases: Elections C=:, 126(5),215.] 2.
The system of choosing officers by a recorded vote, such
as by marking a paper.
absentee ballot. A ballot that a voter submits, some
times by mail, before an election. Also termed
absentee vote. See absentee voting under VO'I'lNG.
[Cases: Elections (;=c 126(6),216.1.1
bullet ballot. See bullet vote under VOTE (1).
butterfly ballot. A punchcard ballot that opens like a
book and usu. has arrows pointing to the punchhole
beside a candidate's name . The butterfly ballots
used in Florida during the 2000 presidential elections
produced widespread controversy because the layout
of the candidates' names on the ballots allegedly
confused voters and caused them to cast votes mis
takenly for candidates they did not support. [Cases


the ballots allegedly
confused voters and caused them to cast votes mis
takenly for candidates they did not support. [Cases:
Elections
exhausted ballot. See exhausted vote under VOTE (1).
joint ballot. A vote by legislators of both houses sitting
together as one body.

ballot box
preferential ballot. See preferential vote under VOTE
(1).
secret ballot. A vote cast in such a way that the person
voting cannot be identified. Cf Australian ballot.
[Cases: Elections 126(6),215.]
'The secret ballot, when used to protect citizens when
choosing their representatives, is a hallmark of a demo
cratic system of government; but, when it is used to conceal
a public official's vote, it violates the fundamental tenet of
an elected or appointed official's ultimate accountability to
the electorate," Op. Tex. Att'y Gen. H-1l63 (1978).
spoiled ballot. A ballot reflecting a vote that cannot be
counted because it was cast in a form or manner that
does not comply with the applicable rules. See illegal
vote under VOTE (1). [Cases: Elections ~ 186(4).]
3. A vote in a series of votes that is not conclusive
until one candidate attains the necessary majority or
supermajority <the candidate was nominated on the
21st ballot>. 4. A list of candidates running for office
<four candidates are on the ballot>. ballot, vb.
Australian ballot. A uniform ballot printed by the gov-
ernment, listing all eligible candidates, and marked in
secret . Before Australian ballots became standard,
candidates often printed their own ballots with only
their name, and watchers at polling places could see
whose ballot a voter was casting. Loosely termed
secret ballot. [Cases: Elections C~:> 126(5), 164.)
Massachusetts ballot. A ballot in which, under each
office, the candidates' names appear in alphabetical
order alongside their party designations . This is a
type of Australian ballot.
office-block ballot. A ballot that lists the candidates'
names under the title of the office sought without
mentioning the candidates' party affiliations. [Cases:
Elections (;:::::c 126(5), 168(1), 173.]
party-column ballot. A ballot that lists the candidates'
names in separate columns by political party regard
less of the offices sought by the candidates. [Cases:
Elections 168(1),173.]
Texas ballot. A ballot that the voter marks for the can
didates that he or she does not want elected . The
Texas ballot is particularly useful when the number
of candidates only slightly exceeds a large number of
representatives being elected. [Cases: Elections ~
180(1).]
ballot box. A locked box into which ballots are depos
ited.
Bamako Convention on the Ban of the Import into
Africa and the Control of Transboundary Movement
of Hazardous Wastes Within Africa. A 1991 treaty
prohibiting the importation of hazardous wastes into
Africa and restricting the transfer of wastes among
African nations . The treaty's objectives are to protect
human health and the environment from the dangers
posed by hazardous wastes by banning their importa
tion, banning the dumping of waste in seas and internal
waters, and reducing waste generation. Only a nation
that is a member of the Organization of African Unity 164
(OAU) can become a party to the Bamako Conven
tion. Often shortened to Bamako Convention.
ban, n. 1. Hist. A public proclamation or summons .
Bans dealt with a variety of matters, such as the calling
to arms of a lord's vassals or the proclamation that an
offender was henceforth to be considered an outlaw. 2.
Eccles. law. An authoritative ecclesiastical prohibition;
an interdict or excommunication. 3. BANNS OF MATRI
MONY. -Also spelled bann.
ban, vb. To prohibit, esp. by legal means.
banality (b<l-nal-i-tee), n. Hist. Fr. Can. law. A lord's
right to make his vassals use his own wine press, oven,
mill, etc.
bane (bangk or bongk). [French) A bench; esp., the
bench on which one or more judges sit. -Also spelled
bank. Also termed bancus. See EN BANC.
banco (bang-koh). 1. A seat or bench of justice. See
EN BANC. 2. A tract ofland cut offby the shifting of a
river's course; esp., land that has become cut offin such
a manner from the country it originally belonged to.
See AVULSION (2).
bancus (bang-k<ls). [Law Latin "bench"] Hist. English
law. A court or tribunal.
bancus reginae (bang-k<ls r<l-jI-nee). See QUEEN'S
BENCH.
bancus regis (bang-bs ree-j<ls). See KING'S BENCH.
bancus superior (bang-bs s<>-peer-ee-<lr). Upper
bench . The King's Bench was so called during the
Protectorate (1653-1659). -Abbr. b.s. -Also termed
bancus publicus ("public bench").
Band E. abbr. Breaking and entering. See BURGLARY
(2).
bands. Two strips of white cloth suspended from the
front of a clerical-style collar, worn by advocates when
appearing in the courts of the United Kingdom.
bane. Hist. A malefactor or murderer; a person whose
criminal act calls for the raising of the hue and cry.
banish, vb. See EXILE.
bank. (ISc) 1. A financial establishment for the deposit,
loan, exchange, or issue of money and for the transmis
sion of funds; esp., a member of the Federal Reserve
System . Under securities law, a bank includes any
financial institution, whether or not incorporated,
doing business under federal or state law, if a sub
stantial portion of the institution's business consists
of receiving deposits or exercising fiduciary powers
similar to those permitted to national banks and if the
institution is supervised and examined by a state or
federal banking authority; or a receiver, conservator, or
other liquidating agent of any of the above institutions.
15 USC A  78c(a)(6). [Cases: Banks and Banking C=: 2,
232,289,359.]2. The office in which such an establish
ment conducts transactions.
"A bank is a quasi public institution, for the custody and
loan of money, the exchange and transmission of the
same by means of bills and drafts, and the issuance of
its own promissory notes, payable to bearer. as currency,

165
or for the exercise of one or more of these functions, not
always necessarily chartered, but sometimes so, created
to subserve public ends, or a financial institution regulated
by law .... A bank is wholly a creature of statute doing
business by legislative grace and the right to carryon a
banking business through the agency of a corporation is
a 'franchise' which is dependent on a grant of corporate
powers by the state." 1A Michie on Banks and Banking
2, at 5-6 (1993).
bank for cooperatives. A bank within a system of banks
established to provide a permanent source of credit
to farmers' cooperatives and supervised by the Farm
Credit Administration. [Cases: Banks and Banking
<:::='401-409.]
collecting bimk. (1834) In the check-collection process,
any bank handling an item for collection, except for
the payor bank. UCC  4-105(5). [Cases: Banks and
Banking C=>156-163.]
commercial bank. (18c) A bank authorized to receive
both demand and time deposits, to make loans, to
engage in trust services, to issue letters of credit,
to rent time-deposit boxes, and to provide similar
services.
correspondent bank. A bank that acts as an agent for
another bank, or engages in an exchange of services
with that bank, in a geographical area to which the
other bank does not have direct access.
custodian bank. A bank or trust company that acts as
custodian for a clearing corporation and that is super
vised and audited by a state or federal authority.
depositary bank. (1848) The first bank to which an item
is transferred for collection. UCC  4-105(2). [Cases:
Banks and Banking <:::=' 120, 121, 137, 158.]
drawee bank. See payor bank.
Federal Home Loan Bank. See FEDERAL HOME LOAN
BANK.
federal intermediate credit bank. One of a system of
twelve regional banks created in 1923 to discount obli
gations of agricultural credit corporations and similar
institutions making short-term loans to farmers and
ranchers . The system is now merged with federal
land banks to create the federal farm-credit system.
[Cases: United States <:::='53(7).]
federal land bank. See FEDERAL LAND BANK.
intermediary bank. (1896) A bank to which an item is
transferred in the course of collection, even though
the bank is not the depositary or payor bank. UCC
 4-105(4).
investment bank. A bank whose primary purpose is
to acquire financing for businesses, esp. through the
sale of securities . An investment bank does not
accept deposits and, apart from selling securities,
does not deal with the public at large. See INVEST
MENT BANKER. [Cases: Brokers C=>2.]
member bank. A bank that is a member of the Federal
Reserve System. -Also termed reserve bank. See
FEDERAL RESERVE SYSTEM. [Cases: Banks and
Banking <:::='359.] bank
mutual savings bank. A bank that has no capital stock
and in which the depositors are the owners. See SAV
INGS-AND-LOAN ASSOCIATION. [Cases: Banks and
Banking <:::='289; Building and Loan Associations
<:::=' 1.]
national bank. A bank incorporated under federal law
and governed by a charter approved by the Comptrol
ler of the Currency.  A national bank must use the
term "national," "national bank," or "national associa
tion" as part of its name. [Cases: Banks and Banking
<:::='232,238.]
negotiating bank. A financial institution that discounts
or purchases drafts drawn under a letter of credit
issued by another bank. [Cases: Banks and Banking
<:::=' 191.]
nonbank bank. A financial institution that either
accepts demand deposits or makes commercial loans,
but, unlike traditional banks, does not do both at the
same time and therefore can avoid federal regula
tions on bank ownership . Nonbank banks were
esp. prolific in the 1980s, but amendments to the
definition of a bank under federal law have essentially
closed this loophole.
nonmember bank. A bank that is not a member of
the Federal Reserve System. See FEDERAL RESERVE
SYSTEM.
payor bank. (1911) A bank that is asked to pay the
amount of a negotiable instrument and, on the bank's
acceptance, is obliged to pay that amount; a bank by
which an item is payable as drawn or accepted .
Because the bank is the drawee of a draft, it is also
termed a drawee bank. UCC  4-105(3). [Cases: Banks
and Banking <:::=' 137, 158.]
presenting bank. (1862) A nonpayor bank that presents
a negotiable instrument for payment. UCC  4-105(6).
[Cases: Banks and Banking <:::=' 158.]
private bank. An unincorporated banking institution
owned by an individual or a partnership and, depend
ing on state statutes, mayor may not be subject to
state regulation.
remitting bank. A payor or intermediary bank that
pays or transfers an item.
reserve bank. See member bank.
respondent bank. A bank, association, or other entity
that exercises fiduciary powers, that holds securities
on behalf of beneficial owners, and that deposits the
securities for safekeeping with another bank, associa
tion, or other entity exercising fiduciary powers. SEC
Rule 14a-1(k) (17 CFR  240.14a-1(k)).
savings-and-loan bank. See SAVINGS-AND-LOAN ASSO
CIATION.
savings bank. (1817) A bank that makes primarily
home mortgage and some other consumer loans,
receives deposits and pays interest on them, and may
offer checking accounts . Historically, savings banks
did not provide any checking services. [Cases: Banks
and Banking <:::='289.]

state bank. A bank chartered by a state and super
vised by the state banking department. .A state bank
must have FDIC insurance on deposits but need not
become a member of the Federal Reserve System to
obtain the insurance. A state bank that is a member of
the Federal Reserve is regulated by the state banking
department and by the Federal Reserve. Nonmember
state banks are regulated by both the state banking
department and the FDIC. [Cases: Banks and Banking
~2-6.]
bank, vb. (l8c) 1. To keep money at <he banks at the
downtown branch>. 2. To deposit (funds) in a bank
<she banked the prize money yesterday>. 3. Slang. To
lend money to facilitate (a transaction) <who banked
the deal?> . The lender's consideration usu. consists
of a fee or an interest in the property involved in the
transaction.
bankable paper. See PAPER.
bank acceptance. See banker's acceptance under ACCEP-
TANCE (4).
bank account. See ACCOUNT.
bank-account trust. See Totten trust under TRUST.
bank bill. See BANKNOTE.
bankbook. See PASSBOOK.
bank charter. See CHARTER (3).
bank credit. See CRED


bankbook. See PASSBOOK.
bank charter. See CHARTER (3).
bank credit. See CREDIT (4).
bank discount. The interest that a bank deducts in
advance on a note. See DISCOUNT (2).
bank draft. See DRAFT.
banker. A person who engages in the business of
banking.
bankerout, adj. Archaic. Indebted beyond the means of
payment; bankrupt. -Also spelled bankrout.
banker's acceptance. See ACCEPTANCE (4).
banker's bill. See finance bill under BILL (6).
banker's lien. See LIEN.
banker's note. See NOTE (1).
bank examiner. A federal or state official who audits
banks with respect to their financial condition, man
agement, and policies. -Sometimes shortened to
examiner. [Cases: Banks and Banking ~ 17.]
bank for cooperatives. See BANK.
bank fraud. See FRAUD.
bank holding company. A company that owns or
controls one or more banks . Ownership or control
of 25 percent is usu. enough for this purpose. -Abbr.
BHC. [Cases: Banks and Banking ~521-528.]
banking. The business carried on by or with a bank.
Banking Act of 1933. See GLASS-STEAGALL ACT.
banking day. (l8c) 1. Banking hours on a day when a
bank is open to the public for carrying on substantially
all its banking functions . Typically, if the bookkeep
ing and loan departments are closed by a certain hour, the remainder of that day is not part of that bank's
banking day. 2. A day on which banks are open for
banking business.
"'Banking day' is defined in [UCC ] 4-104(l)(c) [now
4-1 04(a)(3)]. The definition was designed to exclude from
the 'banking day' all bank holidays (although some states
added specifics on holidays) as well as the portions of a day
on which one or more of the substantial departments of the
bank closed off their services to the public, even though
it remained open for accepting deposits and withdrawing
funds as well as continuously processing items for payment
or for dispatch. Clearly, when night depositaries came
into vogue, their existence did not extend the 'banking
day.' The present existence and growing use of so-called
24-hour teller machines also does not extend the banking
day. The nature of the banking day is sufficiently tenuous
that banks would do well to fix a definite cutoff hour under
subsection 4-107(1)." William D. Hawkland, Uniform Com
mercial Code Series  4-104:01, at 4-43 (1984).
banking game. A gambling arrangement in which the
house (Le., the bank) accepts bets from all players and
then pays out winning bets and takes other bettors'
losses. [Cases: Gaming ~6, 68(0.5).]
bank night. A lottery in which a prize is awarded to a
person (often a theater patron) whose name is drawn
randomly from a hopper. [Cases: Lotteries ~3.]
banknote. A bank-issued promissory note that is
payable to bearer on demand and that may circulate as
money. -Also written bank note. -Also termed bank
bill. [Cases: Banks and Banking ~ 196-212.]
spurious banknote. 1. A banknote that is legitimately
made from a genuine plate but that has forged sig
natures of the issuing officers, or the names of ficti
tious officers. 2. A banknote that is not a legitimate
impression from a genuine plate, or is made from a
counterfeit plate, but that is signed by the persons
shown on it as the issuing officers. -Also termed
spurious bank bill.
bank rate. See INTEREST RATE.
bankrout. See BANKEROUT.
Bankr. Rep. abbr. Bankruptcy Reporter. -Also abbre
viated B.R.
bankrupt, adj. Indebted beyond the means of payment;
insolvent. -Also spelled (archaically) bankerout;
bankrout. -bankrupt, vb.
bankrupt, n. (16c) 1. A person who cannot meet current
financial obligations; an insolvent person . This term
was used in bankruptcy statutes until 1979, and is still
commonly used by nonbankruptcy courts. But the
Bankruptcy Code uses debtor instead of bankrupt. 2.
DEBTOR (2).
cessionary bankrupt. Archaic. A person who forfeits all
property so that it may be divided among creditors.
 For the modern near-equivalent, see CHAPTER 7.
[Cases: Bankruptcy ~2221.]
bankruptcy. (l8c) 1. A statutory procedure by which
a (usu. insolvent) debtor obtains financial relief and
undergoes a judicially supervised reorganization or liq
uidation of the debtor's assets for the benefit of credi
tors; a case under the Bankruptcy Code (Title 11 of the

167
United States Code) . For various types of bankruptcy
under federal law, see the entries at CHAPTER. -Also
termed bankruptcy proceeding; bankruptcy case. [Cases:
Bankruptcy ~200l.1
"There are two general forms of bankruptcy: (1) liquidation
and (2) rehabilitation. Chapter 7 of the Code is entitled
'Liquidation.' The terms 'straight bankruptcy' and 'bank
ruptcy' often are used to describe liquidation cases under
the bankruptcy laws because the vast majority of bank
ruptcy cases are liquidation cases. In a typical Chapter
7 liquidation case, the trustee collects the nonexempt
property of the debtor, converts that property to cash,
and distributes the cash to the creditors. The debtor gives
up all the nonexempt property she owns at the time of
the filing of the bankruptcy petition and hopes to obtain
a discharge. Chapters 11, 12, and 13 of the Bankruptcy
Code contemplate debtor rehabilitation. In a rehabilitation
case, creditors look to future earnings of the debtor, not
to the property of the debtor at the time of the initiation
of the bankruptcy proceeding, to satisfy their claims. The
debtor generally retains its assets and makes payments to
creditors, usually from postpetition earnings, pursuant to
a court-approved plan." David G. Epstein et aI., Bankruptcy
 1-5, at 8-9 (1993).
family-farmer bankruptcy. See CHAPTER 12 (2).
farmer bankruptcy. See CHAPTER 12 (2).
involuntary bankruptcy. (1842) A bankruptcy case
commenced by the debtor's creditors (usu. three or
more), or, if the debtor is a partnership, by fewer than
all the general partners. 11 USCA  303(b). -Also
termed involuntary proceeding. [Cases: Bankruptcy
~2281.1
liquidation bankruptcy. See CHAPTER 7 (2).
malicious bankruptcy. An abuse of process by which
a person wrongfully petitions to have another person
adjudicated a bankrupt or to have a company wound
up as insolvent. [Cases: Bankruptcy~2187.1
straight bankruptcy. See CHAPTER 7 (2).
voluntary bankruptcy. (18c) A bankruptcy case com
menced by the debtor. 11 USCA  301. [Cases: Bank
ruptcy ~2251.1
2. The field oflaw dealing with the rights of debtors who
are financially unable to pay their debts and the rights
of their creditors. -Also termed bankruptcy law. 3. The
status of a party who has declared bankruptcy under
a bankruptcy statute. -Also termed statutory insol
vency. 4. Informally, the fact of being financially unable
to pay one's debts and obligations as they become due;
insolvency . The roots of bankruptcy are the Latin
bancus (table) and ruptus (broken). The English word
bankruptcy derives from the Italian banca rotta, refer
ring to the medieval Italian custom of breaking the
counter of a financially failed merchant. -Also termed
(in sense 4) failure to meet obligations.
Bankruptcy Act. The Bankruptcy Act of 1898, which
governed bankruptcy cases filed before October 1,
1979.
bankruptcy case. A proceeding commenced by filing a
voluntary or involuntary petition under a bankruptcy
statute. See BANKRUPTCY (1).
bankruptcy clause. See IPSO FACTO CLAUSE. Bank Secrecy Act
Bankruptcy Code. Title I of the Bankruptcy Reform Act
of 1978 (as amended and codified in 11 USCA), which
governs bankruptcy cases filed on or after October 1.
1979. [Cases: Bankruptcy ~2011.1
Bankruptcy Court. A U.S. district court subunit com
prising the bankruptcy judges within the district and
exclusively concerned with administering bankruptcy
proceedings. [Cases: Bankruptcy ~2121, 2123.]
bankruptcy crime. A crime committed in connection
with a bankruptcy case, such as a trustee's embez
zling from the debtor's estate. 18 USCA  152-57. See
bankruptcy fraud under FRAUD. [Cases: Bankruptcy
~3861.]
bankruptcy estate. A debtor's legal and equitable inter
ests in property at the beginning of a bankruptcy case
where the property is subject to administration. See 11
USCA  541. [Cases: Bankruptcy~2491-2559.1
bankruptcy fraud. See FRAUD.
bankruptcy judge. See JUDGE.
bankruptcy law. 1. INSOLVENCY LAW. 2. Traditionally, a
statute that provides some relief and protection to an
insolvent debtor or to the debtor's creditors. Cf. INSOL
VENCY LAW. 3. BANKRUPTCY (2).
bankruptcy petition. See voluntary petition under
PETITION.
bankruptcy plan. (1944) A detailed program of action
formulated by a debtor or its creditors to govern the
debtor's rehabilitation, continued operation or liqui
dation, and payment of debts . The bankruptcy court
must approve the plan before it is implemented. -
Often shortened to plan. -Also termed plan of reor
ganization (for Chapter 11); plan of rehabilitation (for
Chapter 13). See ARRANGEMENT WITH CREDITORS.
[Cases: Bankruptcy~3531-3570, 3704.]
bankruptcy proceeding. (1828) 1. BANKRUPTCY (1). 2.
Any judicial or procedural action (such as a hearing)
related to a bankruptcy. [Cases: Bankruptcy ~
2156.]
bankruptcy-remote entity. A business entity formed in
a manner designed to minimize the risk of becoming
a debtor in a bankruptcy case . The entity's organi
zational charter usu. requires at least one independent
director to be appointed, as well as a unanimous vote by
the entity's directors, before a bankruptcy petition may
be filed. The business is usu. a special-purpose entity
established to perform limited functions, such as to
purchase and hold accounts receivable or other finan
cial assets that generate revenue. It also has only one or
a few primary creditors, to reduce the likelihood of an
involuntary bankruptcy. A bankruptcy-remote entity
will sometimes issue securities instead of receiving a
loan from a financial institution. See SINGLE-PURPOSE
PROJECT; SPECIAL-PURPOSE ENTITY; project financing
under FINANCING.
bankruptcy trustee. See TRUSTEE (2).
Bank Secrecy Act. A federal statute that requires banks
and other financial institutions to maintain records of

customers' transactions and to report certain domestic
and foreign transactions . This act, passed by Congress
in 1970, is designed to help the federal government in
criminal, tax, and other regulatory investigations. 12
USCA  lS29b; 31 USCA  5311. [Cases: Banks and
Banking C=> 16; United States C=>34.]
bank statement. See STATEMENT OF ACCOUNT (1).
bank-statement rule. (1974) Commercial law. The prin
ciple that if a bank customer fails to examine a bank
statement and any items returned with it, and report
to the bank within a reasonable time any unauthorized
payments because of a material alteration or forgery,
the customer may be precluded from complaining
about the alteration or forgery. UCC  4-406. [Cases:
Banks and Banking C=> 14S(3, 4), 174.]
bann, n. [Law Latin] 1. BAN. 2. Hist. The power of a court
to issue an edict, esp. one relating to the public peace. 3.
Hist. The edict itself. -Also termed bannum.
"An essential attribute of judicial power in the later periods
is the bann, the right to command and forbid. Etymologi
cally, bann comes from a root signifying loud speech. It
may have meant at first the order issued by the leader
in war; later an administrative command or ordinance.
Hence it covers the official proclamation of peace in the
court, and then it comes to mean the peace itself. In the
older Frank sources, bann appears in the Latin as sumo,
and sumo regis is the king's peace. Extra sermonem regis
ponere means to put out of the peace. Another Latin or
rather Latinized German word is forisbannire, from which
comes our word 'banish.'" Munroe Smith, The Development
of European Law 35 (1928).
bannitio (bd-nish-ee-oh or ba-). [Law Latin] Hist. Expul
sion by a ban or public proclamation; banishment. See
EXILE; BAN (1).
bannitus (ban-d-tds). [Law Latin] Hist. A person under
a ban; an outlaw. See BAN (1).
banns of matrimony. Family law. Public notice of an
int


ban; an outlaw. See BAN (1).
banns of matrimony. Family law. Public notice of an
intended marriage . The notice is given to ensure that
objections to the marriage would be voiced before the
wedding. Banns are still common in many churches. -
Also spelled bans of matrimony. -Also termed banns
of marriage. [Cases: Marriage C=>24.]
"A minister is not obliged to publish banns of matrimony
unless the persons to be married deliver to him, at least
seven days before the intended first publication, a notice
in writing stating the Christian name and surname and the
place of residence of each of them and the period during
which each has resided there .... Banns are to be published
in an audible manner and in the form of words prescribed
by the rubric prefixed to the office of matrimony in the
Book of Common Prayer on three Sundays preceding the
solemnisation of marriage during morning service or, if
there be no morning service on a Sunday on which they
are to be published, during evening service." Mark Hill,
Ecclesiastical Law 136 (2d ed. 2001) (dealing with practice
in the Church of England).
bannum. See BANN.
bar, n. (14c) 1. In a courtroom, the railing that separates
the front area, where court business is conducted, from
the back area, which provides seats for observers; by
extension, a similar railing in a legislative assembly
<the spectator stood behind the bar>. 2. The whole
body oflawyers qualified to practice in a given court or jurisdiction; the legal profession, or an organized subset
of it <the attorney's outrageous misconduct disgraced
the bar>. See BAR ASSOCIATION. [Cases: Attorney and
Client C=>31.]
integrated bar. A bar association in which membership
is a statutory requirement for practicing law; a usu.
statewide organization oflawyers in which member
ship is compulsory in order for a lawyer to have a law
license. -Also termed unified bar.
specialty bar. A voluntary bar association for lawyers
with special interests, specific backgrounds, or
common practices.
voluntary bar. A bar association that lawyers need not
join to practice law.
3. A particular court or system of courts <case at bar>.
 Originally, case at bar referred to an important case
tried "at bar" at the Royal Courts ofJustice in London.
4. BAR EXAMINATION <Pendarvis passed the bar>. 5. A
barrier to or the destruction of a legal action or claim;
the effect of a judgment for the defendant <a bar to
any new lawsuit>. Cf. MERGER (6). 6. A plea arresting a
lawsuit or legal claim <the defendant filed a bar>. See
PLEA IN BAR. [Cases: Pleading C=> lOS, 109.] 7. Patents.
Statutory preclusion from patentability, based on pub
lication, use, sale, or other anticipatory activity that
occurred before an invention's critical date and thereby
negated the invention's novelty . Under  102 of the
Patent Act, a person is not entitled to a patent if (1)
before the date of invention, the same invention was
publicly known or used by others in this country or was
patented or described in a printed publication anywhere
in the world; (2) more than one year before the U.S.
filing date, the invention was patented or described in
a printed publication anywhere in the world or was in
public use, on sale, or offered for sale in the U.S.; (3)
the invention has been abandoned by the applicant;
(4) the invention was first patented by the applicant
or its representatives in a foreign country before the
U.S. filing date, and the foreign application was filed
more than 12 months before the U.S. filing; (5) before
the date of invention, the invention was described in a
patent granted on an application filed by someone else
in the U.S.; (6) the inventor did not invent the subject
matter of the application; or (7) the invention was pre
viously made in this country by someone else who has
not abandoned, suppressed, or concealed it. -Also
termed statutory bar. [Cases: Patents c=>so.]8. Trade
marks. Statutory preclusion of certain marks from
listing on the Principal Register.  Under 15 USCA
 1052, a mark is not entitled to registration if: (1) it
consists of immoral, deceptive, or scandalous matter;
(2) it falsely suggests a connection with, or brings into
contempt or disrepute, a living or dead person, an insti
tution, a belief, or a nation's symbols; (3) it depicts or
simulates the flag, coat of arms, or other insignia of
the U.S., a state, a municipality, or a foreign nation;
(4) it consists of a geographic designation that, when
used on wines or spirits, designates a place other than
the goods' actual origin; (5) it consists of the name,

169
signature, or portrait of a living person who has not
consented to registration; (6) it is likely to deceive or
to cause confusion or mistake because when applied to
specific goods and services it resembles someone else's
unabandoned mark registered in the u.s. Patent and
Trademark Office, or an unabandoned mark or trade
name previously used in the U.S.; (7) it is descriptive or
deceptively misdescriptive of the goods or services; (8)
it is primarily geographically descriptive or primarily
geographically misdescriptive of the goods or services;
(9) it is primarily a surname; or (10) it comprises matter
that, as a whole, is functional. [Cases: Trademarks
1072, 1073.].
bar, vb. (l6c) To prevent, esp. by legal objection <the
statute of limitations barred the plaintiff's wrongful
death claim>.
bar association. (1872) An organization of members
of the legal profeSSion <several state bar associations
sponsor superb CLE programs>. See BAR (2). [Cases:
Attorney and Client (::::::>31.]
local bar association. A bar association organized on a
local level, such as an association within a county or
city . Local bar associations are voluntary in mem
bership.
state bar association. (1883) An association or group of
attorneys that have been admitted to practice law in a
given state; a bar association organized on a statewide
level, often with compulsory membership . State bar
associations are usu. created by statute, and member
ship is often mandatory for those who practice law in
the state. Unlike voluntary, professional-development
bar associations such as the American Bar Associa
tion, state bar associations often have the author
ity to regulate the legal profession, by undertaking
such matters as disciplining attorneys and bringing
lawsuits against those who engage in the unauthor
ized practice of law.
bar date. Patents. The date by which a u.s. patent appli
cation must be filed to avoid losing the right to receive
a patent.  In the U.S., the bar date for a patent appli
cation is one year after the invention is disclosed in a
publication or patented in another country, or put into
public use, sold, or offered for sale in the U.S. <Since
the invention was offered for domestic sale on January
1, 2000, the bar date for the U.S. patent application is
January 1,2001.> Cf. absolute novelty under NOVELTY.
[Cases: Patents (::::::>67.1.]
bareboat charter. See CHARTER (8).
barebones indictment. See INDICTMENT.
bare-bones legislation. See skeletal legislation under
LEGISLATION.
bare license. See LICENSE.
bare licensee. See LICENSEE.
bare ownership. See trust ownership under OWNER
SHIP.
bare possibility. See naked possibility under POSSIBIL
ITY. bargain and sale
bare promise. See gratuitous promise under PROMISE.
bare steerageway. Maritime law. The lowest speed neces
sary for a vessel to maintain course. [Cases: Collision
C=82(2).]
bare trustee. See TRUSTEE (1).
bar examination. (1875) A written test that a person
must pass before being licensed to practice law . The
exam varies from state to state. -Often shortened to
bar. [Cases: Attorney and Client
Multistate Bar Examination. A nationally standard
ized part of a state bar examination given as a multi
ple-choice test covering broad legal subjects, including
constitutional law, contracts, criminal law, evidence,
property, and torts. Abbr. MBE.
bar examiner. (1902) One appointed by the state to
test applicants (usu. law-school graduates) by prepar
ing, administering, and grading the bar examination.
[Cases: Attorney and Client (::::::>6.]
bargain, n. (14c) An agreement between parties for the
exchange of promises or performances . A bargain is
not necessarily a contract because the consideration
may be insufficient or the transaction may be illegal.
See BARGAIN SALE; informal contract under CONTRACT.
[Cases: Contracts (::::::>l.J bargain, vb.
"A bargain is an agreement of two or more persons to
exchange promises, or to exchange a promise for a per
formance. Thus defined, 'bargain' is at once narrower than
'agreement' in that it is not applicable to all agreements,
and broader than 'contract' since it includes a promise
given in exchange for insufficient consideration. It also
covers transactions which the law refuses to recognize as
contracts because of illegality." Samuel Williston, A Treatise
on the Law of Contracts  2A, at 7 (Walter H.E. Jaeger ed.,
3d ed. 1957).
catching bargain. An agreement on unconscionable
terms to purchase real property from -or loan
money secured by real property to - a person who
has an expectant or reversionary interest in the
property.
illegal bargain. A bargain whose formation or perfor
mance is criminal, tortious, or otherwise contrary to
public policy.
plea bargain. See PLEA BARGAIN.
time-bargain. See FUTURES CONTRACT.
unconscionable bargain. See unconscionable agree-
ment under AGREEMENT.
bargain and sale. (16c) 1. A negotiated transaction, usu.
for goods, services, or real property. 2. Hist. A written
agreement for the sale ofland whereby the buyer would
give valuable consideration (recited in the agreement)
without having to enter the land and perform livery
of seisin, so that the parties equitably "raised a use" in
the buyer.  The result of the transaction was to leave
the leg'al estate in fee simple in the seller and to create
an equitable estate in fee simple in the buyer until legal
title was transferred to the buyer by delivery of a deed.
In most jurisdictions, the bargain and sale has been

bargain-and-sale deed
replaced by the statutory deed of grant. [Cases: Deeds
~22.]
bargain-and-sale deed. See DEED.
bargained-for exchange. Contracts. A benefit or det
riment that the parties to a contract agree to as the
price of performance . The Restatement of Contracts
(Second) defines consideration exclusively in terms of
bargain, but it does not mention benefit or detriment.
[Cases: Contracts
bargainee. The buyer in a bargained-for exchange.
bargaining agent. See AGENT (2).
bargaining unit. A group of employees authorized to
engage in collective bargaining on behalf of all the
employees of a company or an industry sector. [Cases:
Labor and Employment C:::;, 1171.J
bargain money. See EARNEST MONEY.
bargainor (bahr-gan-or or bahr-gd-nar). The seller in a
bargained -for \;;)l'_ll~'l1l'1.\;;.
bargain purchase. See BARGAIN SALE.
bargain sale. (1898) A sale of property for less than its
fair market value . For tax purposes, the difference
between the sale price and the fair market value must
be taken into account. And bargain sales between
family members may lead to gift-tax consequences. -
Also termed bargain purchase.
bargain theory of consideration. (1927) The theory
that a promise or performance that is bargained for in
exchange for a promise is consideration for the promise.
 This theory underlies all bilateral contracts. See bilat
eral contract under CONTRACT. [Cases: Contracts
50.]
"[C]lassical contract theory tended to associate the doctrine
of consideration with the concept of bargain. The emphasis
of classical law shifted away from actual benefits and detri
ments to the mutual promises which constitute a wholly
executory contract. American lawyers developed from this
trend a 'bargain theory of consideration' and similarly in
English law a more modern basis for the doctrine of con
sideration was found by some lawyers in the notion that
a contract is a bargain in which the consideration is the
price of the bargain. Allied to this is the supposed rule that
nothing can be treated as a consideration unless it is seen
by the parties as the 'price' of the bargain." P.S. Atiyah, An
Introduction to the Law of Contract 119 (3d ed. 1981).
barometer stock. See STOCK.
baron. 1. Hist. A man who held land directly from the
Crown in exchange for military service. 2. Hist. A
husband. See BARON ET FEME. 3. One of the judges of
the former English or Scottish Courts of Exchequer. -
Abbr. B. See BARONS OF THE EXCHEQUER. 4. A noble
rank; specif., the lowest rank in the British peerage. 5.
Generally, a lord or nobleman.
barones scaccarii. See BARONS OF THE EXCHEQUER.
baronet. Hist. A non-noble hereditary title that descends
in the male line only . Baronets originated in 1611
when James I began selling the title as a way to raise
revenue. 170
baron et feme (bar-an ay fem). [Law French] Hist.
Husband and wife. See COVERTURE;


on et feme (bar-an ay fem). [Law French] Hist.
Husband and wife. See COVERTURE; FEME COVERT.
baronial court. See COURT.
Baron Parke's rule. See GOLDEN RULE.
Barons of the Exchequer. Hist. The six judges of the
Court of Exchequer . After the 1873 transfer of the
Court's jurisdiction to the High Court ofJustice, the
judges were known as justices of the High Court. Also
termed barones scaccarii. See COURT OF EXCHEQUER.
barony (bar-dn-ee). 1. See BARON (1). 2. See TENURE (2).
bar pilot. See branch pilot under PILOT.
barra (bah-fa). [Law French "bar"] Hist. 1. See PLEA IN
BAR. 2. A barrister. Also spelled barre.
barrator (bar-d-tdr), n. (ISc) 1. One who commits barratry
(in any sense). 2. A fomenter of quarrels and lawsuits; one
who stirs up dissension and litigation among people. -
Also spelled barretor. Cf. CHAMPERTOR.
"Barrator or Barater(Fr. Barateur, a Deceiver) Is a common
mover or maintainer of Suits, Quarrels, or Parts. either in
Courts or elsewhere in the Country, and is himself never
quiet, but at variance with one or other." Thomas Blount,
Nomo-Lexicon: A LawDictionary (1670).
barratry (bar-;J-tree or bair-), n. (I5c) 1. Vexatious
incitement to litigation, esp. by soliciting potential legal
clients . Barratry is a crime in most jurisdictions. A
person who is hired by a lawyer to solicit business is
called a capper. See CAPPER (1). [Cases: Champerty
and Maintenance ~4(.5), 5(.5),9.] 2. Maritime law.
Fraudulent or grossly negligent conduct (by a master or
crew) that is prejudicial to a shipowner. [Cases: Seamen
~14; Shipping~61.J
"[S]ailing out of port in violation of an embargo, or without
paying the port duties, or to go out of the regular course
upon a smuggling expedition, or to be engaged in smug
gling against the consent of the owner, are all of them acts
of barratry, equally with more palpable and direct acts of
violence and fraud, for they are wilful breaches of duty
by the master. It makes no difference in the reason of the
thing, whether the injury the owner suffers be owing to
an act of the master, induced by motives of advantage to
himself, or of malice to the owner, or a disregard of those
laws which it was the master's duty to obey, and which
the owner relied upon him to observe. It is, in either case,
equally barratry." 3 James Kent, Commentaries on American
Law*305-06 (George Comstock ed., 11th ed. 1866).
3. The buying or selling of ecclesiastical or governmen
tal pOSitions. 4. The crime committed by a judge who
accepts a bribe in exchange for a favorable decision. Cf.
BRIBE. -barratrous (bar~;Hr;)s), adj.
barrier to entry. An economic factor that makes it dif
ficult for a business to enter a market and compete with
existing businesses.
"Strictly speaking, a barrier to entry is a condition that
makes the longrun costs of a new entrant into a market
higher than the long-run costs of the existing firms in the
market; a good example is a regulatory limitation on entry.
The term is also used, more questionably, as a synonym for
heavy startup costs." Richard A. Posner, Economic AnalYSis
ofLaw 10.8, at 227 (2d ed. 1977).
barring of entail. (18c) The freeing of an estate from the
limitations imposed by an entail and permitting its free

171
disposition . This was anciently done by means of a
fine or common recovery, but later by a deed in which
the tenant and next heir join. -Also termed breaking
of entail; disentailment. See ENTAIL. [Cases: Deeds
127; Estates in Property C=> 12.]
barrister (bar-is-tar), n. (ISc) In England or Northern
Ireland, a lawyer who is admitted to plead at the bar
and who may argue cases in superior courts . In many
other Commonwealth nations, the legal profession is
similarly divided into barristers and solicitors. Cf.
SOLICITOR (4). barristerial (bar-a-steer-ee-al), adj.
inner barrister. 1. QUEEN'S COUNSEL. 2. A student
member of an Inn of Court.
outer barrister. A barrister called to the bar, but not
called to plead from within it, as a Queen's Counsel
or (formerly) serjeant-at-law is permitted to do; a bar
rister belonging to the outer bar. -Also termed utter
barrister. See CALL TO THE BAR; OUTER BAR.
vacation barrister. A barrister who, being newly
called to the bar, for at least three years must attend
inn of court functions that are held during the long
vacation.
barter, n. (15c) The exchange of one commodity for
another without the use of money. -barter, vb.
base, adj. Servile; (of a villein) holding land at the will of
the lord. See base estate under ESTATE (1).
base and meridian. Property. The east-west and north
south lines used by a surveyor to demarcate the position
of the boundaries of real property . A base line runs
east to west. A meridian line runs north to south.
base court. See COURT.
based on. Copyright. Derived from, and therefore similar
to, an earlier work . If one work is "based on" an earlier
work, it infringes the copyright in the earlier work. To
be based on an earlier work, a later work must embody
substantially similar expression, not just substantially
. similar ideas. See derivative work under WORK (2).
base estate. See ESTATE (1).
base fee. (1800) 1. See FEE (2). 2. See fee simple determin
able under FEE SIMPLE.
Basel Conventiou on the Control of Transboundary
Movements of Hazardous Waste and Their DisposaL
A 1992 treaty establishing formal rules and procedures
for the transportation and disposal of hazardous waste
across national borders. -The United States had not
ratified the treaty as of 2003. -Often shortened to
Basel Convention. [Cases: Treaties
baseline.lnt'llaw. The line that divides the land from the
sea, by which the extent of a state's coastal jurisdiction
is measured. [Cases: International Law
baseline documentation. The record of a parcel of real
property's condition and conservation values at a
specific time, Signed by the landowner and the land
trust when a conservation easement is created, and
used to monitor and enforce the easement's terms. See
IRS Reg. 1.170A-14(g)(5). basis
basement court. (1995) Slang. A low-level court of
limited jurisdiction, such as a police court, traffic court,
municipal court, or small-claims court.
base-point pricing. 1. A pricing method that adds the
price at the factory to the freight charges, which are
calculated as the cost of shipping from a set location
to the buyer's location . The chosen shipping base
point may be the same for all customers, or it may be a
specific, established location, such as a manufacturing
plant nearest to the buyer. 2. A uniform pricing policy
in which the cost of transportation to all locations is
presumed to be the same.
base service. Hist. Agricultural work performed by a
villein tenant in exchange for the lord's permission to
hold the land. Cf. KNIGHT-SERVICE.
base tenure. See TENURE.
bask crops. See CROPS.
bask-form policy. See INSURANCE POLICY.
basic mistake. See MISTAKE.
bask norm. See NORM.
basic patent. See pioneer patent under PATENT (3).
basilica (ba-sil-i-k<}). [Greek] Hist. 1. (cap.) A 60-book
Greek summary ofJustinian's Corpus Juris Civilis, with
comments (scholia) . The Basilica ("royal law") was
begun by the Byzantine emperor Basil I, and it served
as a major source of the law of the Eastern Empire from
the early 10th century until Constantinople's fall in
1453.2. A colonnaded hall used as a law court or for
trading; specif., in ancient Rome, a public building usu.
used as a court of justice . A basilica typically featured
a nave with two aisles and an apse. Architects adopted
the basilica's layout for the design of early Christian
churches.
basis. (14c) 1. A fundamental principle; an underlying
fact or condition. 2. Tax. The value assigned to a taxpay
er's investment in property and used primarily for com
puting gain or loss from a transfer of the property .
Basis is usu. the total cost of acquiring the asset, includ
ing the purchase price plus commissions and other
related expenses, less depreciation and other adjust
ments. When the aSSigned value represents the cost of
acquiring the property, it is also called cost basis. -
Also termed tax basis. [Cases: Internal Revenue
3195; Taxation PI. bases.
adjusted basis. (1932) Basis increased by capital
improvements and decreased by depreciation deduc
tions. [Cases: Internal Revenue C=>3197; Taxation
C=>3467-3469.]
"[lit is well to consider the word 'adjusted' in the term
'adjusted basis: Often, after property is acquired, certain
adjustments (increases or decreases to the dollar amount
of the original basis) must be made. After these adjust
ments, the property then has an 'adjusted basis.'" Michael
D. Rose & John C. Chommie. Federal Income Taxation
6.04, at 300 (3d ed. 1988).
adjusted cost basis. (1934) Basis resulting from the
original cost of an item plus capital additions minus
depreciation deductions.

basis point
carryover basis. (1952) The recipient's basis in property
transferred by gift or in trust, equaling the transf:'
eror's basis. -Also termed substituted basis. [Cases:
Internal Revenue C:=:' 3201.]
stepped-up basis. (1951) The beneficiary's basis in
property transferred by inheritance, equaling the
fair market value of the property on the date of the
decedent's death or on the alternate valuation date.
[Cases: Internal Revenue
substituted basis. (1932) 1. The basis of property
transferred in a tax-free exchange or other specified
transaction. [Cases: Internal RevenueC:=:'3184.]2.
See carryover basis.
basis point. One-hundredth of 1 %; .01% . Basis points
are used in computing investment yields (esp. of bonds)
and in apportioning costs and calculating interest rates
in real-estate transactions. -Abbr. bp.
Basket Clause. See NECESSARY AND PROPER CLAUSE.
basse justice (bahs zhoo-stees). [Law French "low
justice"] Hist. A feudal lord's right to personally try a
person charged with a minor offense.
bastard. (14c) 1. See illegitimate child under CHILD. 2. A
child born to a married woman whose husband could
not be or is otherwise proved not to be the father .
Because the word is most commonly used as a slur, its
use in family-law contexts is much in decline. [Cases:
Children Out-of-Wedlock
adulterine bastard. A child born to a married woman
whose husband is not the father of the child . The
rebuttable presumption is generally that a child born
of the marriage is the husband's child. A child born to
a woman by means of artificial insemination may be
termed an adulterine bastard, but most jurisdictions
prohibit a husband who has consented to the artificial
insemination from denying paternity and responsi
bility for the child. Cf. ARTIFICIAL INSEMINATION.
bastard eisne. See EISNE.
bastardy. See ILLEGITIMACY.
bastardy proceeding. See PATERNITY SUIT.
bastardy process. See PATERNITY SUIT.
bastardy statute. Archaic. A criminal statute that
punishes an unwed father for failing to support his
child . These statutes have been found unconsti
tutional because they unfairly discriminate against
fathers and do not punish unwed mothers. So they are
unenforceable.
batable ground (bay-t;)-b;)l). (16c) Land of uncertain
ownership . Batable (or debatable) ground originally
referred to certain lands on the border of England and
Scotland before the 1603 union of the two kingdoms.
batch number. See SERIES CODE.
Bates number. See BATES-STAMP NUMBER.
Bates stamp, n. 1. A self-advancing stamp machine used
for affixing an identifying mark, usu. a number, to a
document or to the individual pages of a document. 2. 172
BATES-STAMP NUMBER. -Sometimes (erroneously)
written Bate stamp.
Bates-stamp, vb. To affix a mark, usu. a number, to a
document or to the individual pages of a document
for the purpose of identifying and distinguishing it in
a series of documents <the paralegal is Bates-stamping
the records described in the request for discovery>.
Sometimes (erroneously) written Bate-stamp.
Bates-stamp number. The identifying number that is
affixed to a document or to the individual pages of a
document.  The term gets its name from a self-advanc
ing stamp machine made by the Bates Manufacturing
Company