party before the court <the sheriff executed the precept
immediately>.
preceptive statute. See STATUTE.
preceptum amissionis superioritatis (pri-sep-tdm
d-mis[h)-ee-oh-nis suu-peer-ee-or-d-tay-tis). [Law
Latin "a precept of a lost superiority"] Hist. A precept
to force a superior to give a vassal's disponee entry to
the land.
preces (pree-seez), n. [Latin "prayers"] Roman law. A
petition, esp. one addressed to the emperor by a private
person. Cf. RESCRIPT (3).
preces primariae (pree-seez prr-mair-ee-ee). [Latin)
Hist. The right of the sovereign to appoint a person
to fill a vacant prebendary office after the sovereign's
accession . "Ibis right was exercised during the reign
of Edward I. Also termed primae preces. See PREB
ENDARY.
precinct. A geographical unit ofgovernment, such as an
election district, a police district, or a judicial district.
[Cases: Municipal Corporations (;:::>40.)
magisterial precinct. (1894) A county subdivision that
defines the territorial jurisdiction of a magistrate,
constable, or justice ofthe peace. Also termed mag
isterial district. [Cases: Justices of the Peace "JS2.J
precipe (pre-s;:l-pee). See PRAECIPE.
precis (pray-see or pray-see), n. [French) (18c) A concise
summary of a text's essential points; an abstract. PI.
precis (pray-seez or pray-seez).
precludi non debet (pri-kloo-dI non dee-bet or deb-et).
[Latin "he ought not to be barred"] Hist. The beginning
ofa plaintiff's reply to a plea in bar in which the plaintiff
objects to being barred from maintaining the action.
Sometimes shortened to precludi non.
preclusion order. See ORDER (2).
precognition (pree-kog-nish-;:ln). Scots law. 1. A pre
liminary examination under oath of persons believed
to have knowledge about the facts of a case, esp., in a
criminal case, to determine whether there is sufficient
evidence for a trial. 2. The written record of the state
ment that a prospective witness can as evidence.
precompounded prescription drug. See DRUG.
preconceived malice. See MALICE AFORETHOUGHT.
precondition. See CONDITION (1).
precontract. See CONTRACT.
predate, vb. See ANTEDATE.
predation. See PREDATORY PRICING.
predator. See SEXUAL PREDATOR.
predatory crime. See CRIME.
predatory intent. See INTENT (1).

1297 preemptive right
predatory pricing. Unlawful below-cost pricing intended
to eliminate specific competitors and reduce overall
competition; pricing below an appropriate measure of
cost for the purpose of eliminating competitors in the
short run and reducing competition in the long run.
Also termed predation. See ANTITRUST. [Cases: Anti
trust and Trade Regulation (::;>832.]
"In its most orthodox form, 'predatory pricing' refers to a
practice of driving rivals out of business by selling at a price
below cost. The predator's intent and the only intent that
can make predatory pricing rational, profitmaximizing
behavior is to charge monopoly prices after rivals
have been dispatched or disciplined. Predatory pricing is
analyzed under the antitrust laws as illegal monopolization
or attempt to monopolize under  2 of the Sherman Act, or
sometimes as a violation of the Clayton Act  2, generally
called the Robinson- Patman Act." Herbert Hovenkamp,
Federal Antitrust Policy 335 (2d ed. 1999).
predecease, vb. To die before (another) <she predeceased
her husband>.
predecessor. 1. One who precedes another in an office
or position. 2. An ancestor.
predecisional, adj. Of, relating to, or occurring during
the time before a decision.
predial (pree-dee-dl), adj. (I5c) Of, consisting of, relating
to, or attached to land <predial servitude>. -Also
spelled praedial.
predial servitude. See servitude appurtenant under SER
VITUDE (2).
predial tithe. See TITHE.
predicate act. (1977) 1. See predicate offense under
OFFENSE (1). 2. See lesser included offense under
OFFENSE (1). 3. Under RICO, one of two or more related
acts ofracketeering necessary to establish a pattern. See
RACKETEER INFLUENCED AND CORRUPT ORGANIZA
TIONS ACT. 4. See predicate act under ACT (2). [Cases:
Racketeer Influenced and Corrupt Organizations
5,103.]
predicate fact. See FACT.
predicate offense. See lesser included offense under
OFFENSE (1).
prediction theory. 1. See BAD-MAN THEORY. 2. See PRE
DICTIVE THEORY OF LAW.
predictive theory oflaw. (1956) The view that the law
is nothing more than a set of predictions about what
the courts will decide in given circumstances. -This
theory is embodied in Holmes's famous pronounce
ment, "The prophecies of what the courts will do in
fact, and nothing more pretentious, are what I mean by
the law." Oliver Wendell Holmes, The Path ofthe Law,
10 Harv. L. Rev. 457, 460-61 (1897). Also termed
prediction theory. Cf. BAD-MAN THEORY.
predisposition. (17c) A person's inclination to engage in
a particular activity; esp., an inclination that vitiates
a criminal defendant's claim of entrapment. [Cases:
Criminal LawC=>37(4).]
predominant-aspect test. See PREDOMINANT-PURPOSE
TEST. predominant-purpose test. An assessment ofwhether
Article 2 ofthe UCC applies to an exchange, conducted
by considering whether the exchange's chief aspect,
viewed in light of all the circumstances, is the sale of
goods. -Ifgoods account for most of the exchange's
value, it is probably a sale; if services account for most
of the value, it probably is not. The leading case is Bone
brake v. Cox, 499 F.2d 951, 960 (Sth Or. 1974). -Also
termed predominant-aspect test. [Cases: Sales
preemption (pree-emp-shan), n. (lSc) 1. The right to buy
before others. See RIGHT OF PREEMPTION. [Cases: Con
tracts (;=16.5; Sales (;='24; Vendor and Purchaser C=>
18(.5).]2. The purchase of something under this right.
3. An earlier seizure or appropriation. 4. The occupa
tion of public land so as to establish a preemptive title.
[Cases: Public Lands 5. Constitutional law. The
principle (derived from the Supremacy Clause) that a
federal law can supersede or supplant any inconsis
tent state law or regulation. -Also termed (in sense
5) federal preemption. See COMPLETE-PREEMPTION
DOCTRINE. [Cases: States C;:. 18.3.] preempt, vb.
preemptive, adj.
conflict preemption. See obstacle preemption.
Garmon preemption. Labor law. A doctrine prohib
iting state and local regulation of activities that are
actually or arguably (1) protected by the National
Labor Relations Act's rules relating to the right of
employees to organize and bargain collectively, or (2)
prohibited by the National Labor Relations Act's pro
vision that governs unfair labor practices. San Diego
Bldg. Trades Council v. Garmon, 359 U.S. 236, 79 S.Ct.
773 (1959). Also termed Garmon doctrine. See
COLLECTIVE BARGAINING; UNFAIR LABOR PRACTICE.
[Cases: Labor and Employment C-~968, 1670; States
(>18,46.]
Machinists preemption. Labor law. The doctrine pro
hibiting state regulation of an area oflabor activity
or management-union relations that Congress has
intentionally left unregulated. Lodge 76, Int'l Ass'n
ofIHachinists v. Wisconsin Employment Relations
Comm'n, 427 U.S. 132,96 S.Ct. 2548 (1976). [Cases:
Labor and Employment (,.'-=968.]
obstacle preemption. The principle that federal or
state law can supersede or supplant state or local law
that stands as an obstacle to accomplishing the full
purposes and objectives of the overriding federal or
state law. -Also termed conflict preemption. [Cases:
States C=> 185.]
preemption claimant. (lS24) One who has settled on
land subject to preemption, intending in good faith to
acquire title to it.
preemption right. (lSc) The privilege to take priority
over others in claiming land subject to preemption .
The privilege arises from the holder's actual settlement
of the land. See PREEMPTION (3).
preemptive right. A shareholder's privilege to purchase
newly issued stock -before the shares are offered
to the public -in an amount proportionate to the

1298 preexisting condition
shareholder's current holdings in order to prevent
dilution ofthe shareholder's ownership interest -This
right must be exercised within a fixed period, usu. 30 to
60 days. -Also termed subscription privilege. See SUB
SCRIPTION RIGHT. Cf. rights offering under OFFERING.
[Cases: Corporations 0158.]
preexisting condition. See CONDITION (2).
preexisting duty. See DUTY (1).
preexisting-duty rule. (1990) Contracts. The rule that if
a party does or promises to do what the party is already
legally obligated to do or refrains or promises to
refrain from doing what the party is already legally
obligated to refrain from doing the party has not
incurred detriment. -This rule's result is that the
promise does not constitute adequate consideration for
contractual purposes. For example, if a builder agrees
to construct a building for a specified price but later
threatens to walk off the job unless the owner promises
to pay an additional sum, the owner's new promise is
not enforceable because, under the preexisting-duty
rule, there is no consideration for that promise. Also
termed preexisting-Legal-duty rule. [Cases: Contracts
075.]
prefect (pree-fekt), n. 1. A high official or magistrate
put in charge of a particular command, department,
or region. 2. In New Mexico, a probate judge.
prefect of the city. See PRAEFECTUS URBI.
prefer, vb. (l4c) 1. To put forward or present for con
sideration; esp. (of a grand jury), to bring (a charge or
indictment) against a criminal suspect <the defen
dant claimed he was innocent ofthe charges preferred
against him>. 2. To give priority to, such as to one
creditor over another <the statute prefers creditors who
are first to file their claims>.
preference. 1. The act of favoring one person or thing
over another; the person or thing so favored. 2. Priority
of payment given to one or more creditors by a debtor;
a creditor's right to receive such priority. 3. Bankruptcy.
PREFERENTIAL TRANSFER.
insider preference. A transfer of property by a bank
ruptcy debtor to an insider more than 90 days before
but within one year after the filing ofthe bankruptcy
petition. [Cases: Bankruptcy 02608(2).]
liquidation preference. A preferred shareholder's right,
once the corporation is liquidated, to receive a speci
fied distribution before common shareholders receive
anything. [Cases: Corporations 0629.]
voidable preference. See PREFERENTIAL TRANSFER.
preference case. See preferred cause under CAUSE (3).
preference cause. See preferred cause under CAUSE (3).
preference in being recognized. See PRECEDENCE (4).
preference shares. See preferred stock under STOCK.
preferential assignment. See PREFERENTIAL TRANSFER.
preferential ballot. See preferential vote under VOTE
(1). preferential debt. See DEBT.
preferential nonunion shop. See SHOP.
preferential rule. (1959) Evidence. A rule that prefers
one kind of evidence to another. _ It may work pro
viSionally, as when a tribunal refuses to consider one
kind ofevidence until another kind (presumably better)
is shown to be unavailable, or it may work absolutely,
as when the tribunal refuses to consider anything but
the better kind ofevidence. [Cases: Criminal Law 0
398.]
"There are only three or four ... sets of [preferential] rules.
There is a rule preferring the production of the original ofa
document, in preference to a copy. There is a rule requiring
the attesting witness to a will to be summoned to evidence
its execution. And there is a rule preferring the magis
trate's official report of testimony taken before him. Then
there are a few miscellaneous rules, such as the offiCially
certified enrollment of a statute, etc." John H. Wigmore, A
Students' Texrbook of the Law of Evidence 219 (1935).
preferential shop. See preferential union shop under
SHOP.
preferential tariff. See TARIFF (2).
preferential transfer. Bankruptcy. A prebankruptcy
transfer made by an insolvent debtor to or for the
benefit of a creditor, thereby allowing the creditor
to receive more than its proportionate share of the
debtor's assets; specif., an insolvent


allowing the creditor
to receive more than its proportionate share of the
debtor's assets; specif., an insolvent debtor's transfer
of a property interest for the benefit of a creditor who
is owed on an earlier debt, when the transfer occurs no
more than 90 days before the date when the bankruptcy
petition is filed or (if the creditor is an insider) within
one year of the filing, so that the creditor receives more
than it would otherwise receive through the distribu
tion of the bankruptcy estate. -Under the circum
stances described in 11 USCA  547, the bankruptcy
trustee may recover for the estate's benefit - a pref
erential transfer from the transferee. Also termed
preference; voidable preference; voidable transfer; pref
erential aSSignment. Cf. FRAUDULENT CONVEYANCE (2).
[Cases: BankruptcyG---::>260l-2623.)
preferential union shop. See SHOP.
preferential vote. See VOTE (1).
preferential voting. See VOTING.
preferred, adj. Possessing or accorded a priority or privi
lege <a preferred claim>.
preferred cause. See CAUSE (3).
preferred creditor. See CREDITOR.
preferred dividend. See DIVIDEND.
preferred docket. See DOCKET (2).
preferred-provider organization. (1984) A group of
healthcare providers (such as doctors, hospitals, and
pharmacies) that agree to provide medical services at
a discounted cost to covered persons in a given geo
graphic area. -Abbr. PPO. Cf. HEALTH-MAINTENANCE
ORGANIZATION; MANAGED-CARE ORGANIZATION.
[Cases: Health Insurance 2501.]
preferred stock. See STOCK.

1299
preferring of charges. A1ilitary law. The formal com
pletion of a charge sheet, which includes signing and
swearing to the charges and specifications. -Only a
person subject to the Uniform Code of Military Justice
can prefer charges. Cf. INITIATION OF CHARGES. [Cases:
Military Justice ~-:;;951.1
prefiled bill. See BILL (3).
Pregnancy-Discrimination Act. A federal statute that
prohibits workplace discrimination against a pregnant
woman or against a woman affected by childbirth or
a related medical condition. 42 USCA  2000. _ The
Pregnancy- Discrimination Act is part of Title VII of
the Civil Rights Act of 1964. Abbr. PDA. [Cases:
Civil Rights (;:) 1176.]
pregnant chad. See dimpled chad under CHAD.
prehearing conference. (1946) An optional conference
for the discussion of procedural and substantive matters
on appeal, usu. held in complex civil, criminal, tax, and
agency cases. -Those attending are typically the attor
neys involved in the case as well as a court represen
tative such as a judge, staff attorney, or deputy clerk.
Fed. R. App. P. 33. lCases: Appeal and Error {~808;
Criminal Law 0=>632(5); Federal Courts
"The prehearing conference, if held, generally is scheduled
after the time for appeal and cross-appeal has passed, and
as soon as it becomes apparent that the case is complex
due to the legal issues, the length of the record, or the
number of parties. In a complex or multiparty case, the
conference provides a forum in which to discuss briefing
responsibilities, timing, and handling the record and joint
appendix. There may be some discussion ofthe amount of
oral argument the parties desire and how that argument i
will be divided ... ." Michael E. Tigar, Federal Appeals: i
Jurisdiction and Practice  8.06, at 309-10 (2d ed. 1993).
prehire agreement. An employment contract between a
union and an employer, in which the employer agrees to
hire union members. See closed shop under SHOP.
prejudgment attachment. See ATTACHMENT (1).
prejudgment interest. See INTEREST (3).
prejudice, n. (14c) 1. Damage or detriment to one's legal
rights or claims. See dismissal with prejudice and dis
missal without prejudice under DISMISSAL.
legal prejudice. (18c) A condition that, if shown by a
party, will usu. defeat the opposing party's action;
esp., a condition that, ifshown by the defendant, will
defeat a plaintiff's motion to dismiss a case without
prejudice. -The defendant may show that dismissal
will deprive the defendant of a substantive property
right or preclude the defendant from raising a defense
that will be unavailable or endangered in a second
suit. [Cases: Federal Civil Procedure 0=> 1700; Pretrial
Procedure (-.. 510.]
undue prejudice. (17c) The harm resulting from a fact
trier's being exposed to evidence that is persuasive
but inadmissible (such as evidence of prior criminal
conduct) or that so arouses the emotions that calm
and logical reasoning is abandoned. preliminary statement
2. A preconceived judgment formed with little or no
factual basis; a strong bias. [Cases: Judges 0=>49.]
prejudice, vb. -prejudicial, adj.
prejudicial error. See reversible error under ERROR (2).
prejudicial publicity. (1935) Extensive media atten
tion devoted to an upcoming civil or criminal trial. _
Under the Due Process Clause, extensive coverage ofa
criminal trial may deprive the defendant ofa fair triaL
[Cases: Criminal Law C~:)633(1); Federal Civil Proce
dure 0=> 1951; Trial
preliminary, adj. Coming before and usu. leading up
to the main part of something <preliminary negotia
tions>.
preliminary amendment. See PATENT-APPLICATION
AMENDMENT.
preliminary availability search. Trademarks. A cursory
or moderate search ofregistered trademarks and com
mon-law uses of proposed-trademark names or phrases,
done to narrow the list of names phrases before con
ducting a thorough search.
preliminary complaint. See COMPLAINT.
preliminary crime. See inchoate offense under OFFENSE
(1).
preliminary evidence. See EVIDENCE.
preliminary examination. 1. See EXAMINATION (3). 2.
See PRELIMINARY HEARING.
preliminary hearing. A criminal hearing (usu. con
ducted by a magistrate) to determine whether there is
sufficient evidence to prosecute an accused person.
If sufficient evidence exists, the case will be set for trial
or bound over for grand-jury review, or an information
will be filed in the trial court. -Also termed prelimi
nary examination; probable-cause hearing; bindover
hearing; examining trial. Cf. ARRAIGNMENT. [Cases:
Criminal LawC=)222-238.]
preliminary injunction. See INJUNCTION.
preliminary inquiry. Military law. The initial investiga
tion of a reported or suspected violation of the Uniform
Code of Military Justice. Cf. PRETRIAL INVESTIGA
TION.
preliminary-inquiry officer. See OFFICER (2).
preliminary letter. See INVITATION TO NEGOTIATE.
preliminary objection. Int'llaw. In a case before an
international tribunal, an objection that, if upheld,
would render further proceedings before the tribunal
impossible or unnecessary. _ An objection to the court's
jurisdiction is an example of a preliminary objection.
preliminary proof. See PROOF.
preliminary prospectus. See PROSPECTUS.
preliminary protective hearing. See shelter hearing
under HEARING.
preliminary statement. (1834) The introductory part
ofa brief or memorandum in support of a motion, in
which the advocate summarizes the essence of what
follows. -In at least two jurisdictions, New York and

1300 preliminary warrant
New Jersey, the preliminary statement is a standard
part ofcourt papers. In many other jurisdictions, advo
cates do not routinely include it. But preliminary state
ments are typically allowed, even welcomed, though
not required. Also termed summary ofargument.
preliminary warrant. See WARRANT (1).
premarital, adj. Of, relating to, or occurring before
marriage. Cf. POSTMARITAL.
premarital agreement. See PRENUPTIAL AGREEMENT.
premarital asset. See ASSET.
prematurity. 1. The circumstance existing when the facts
underlying a plaintiff's complaint do not yet create a live
claim. Cf. RIPENESS. [Cases: Action (;::::>6,62; Federal
Courts 12.1.] 2. The affirmative defense based on
this circumstance.
premeditated, adj. (16c) Done with willful deliberation
and planning; consciously considered beforehand <a
premeditated killing>. [Cases: Homicide Sen
tencing and Punishment (;::::> 1676.]
premeditated malice. See MALICE AFORETHOUGHT.
premeditation, n. (l5c) Conscious consideration and
planning that precedes some act (such as committing a
crime). [Cases: Homicide (;:::535; Sentencing and Pun
ishment (;::::> 1676.] premeditate, vb.
premier serjeant. See SERJEANT-AT-LAW.
premise (prem-is), n. (l4c) A previous statement or con
tention from which a conclusion is deduced. Also
spelled (in BrE) premiss. -premise (prem-is or pri
mlZ), vb.
premises (prem-<l-siz). (lSc) 1. Matters (usu. prelimi
nary facts or statements) previously referred to in the
same instrument <wherefore, premises considered, the
plaintiff prays for the following relief>. 2. The part of
a deed that describes the land being conveyed, as well
as naming the parties and identifying relevant facts
or explaining the reasons for the deed. 3. A house
or building, along with its grounds <smoking is not
allowed on these premises>.
"Premises (~ a house or building) has a curious history in
legal usage. Originally. in the sense of things mentioned
previously. it denoted the part of a deed that sets forth the
names of the grantor and grantee, as well as the things
granted and the consideration. Then. through hypal
lage in the early 18th century, it was extended to refer
to the subject of a conveyance or bequest as specified
in the premises of the deed. Finally. it was extended to
refer to a house or building along with its grounds. In
short, someone who says, "No alcohol is allowed on these
premises." is engaging unconsciously in a popularized legal
technicality: Bryan A. Garner, A Dictionary ofModern Legal
Usage 685 (2d ed. 1995).
demised premises. Leased property. -Also termed
premises demised.
premises liability. (1950) A landowner's or landholder's
tort liability for conditions or activities on the premises.
[Cases: Negligence 1000,1001.]
premises rnle. See PARKING-LOT RULE. premium, n. 1. The periodic payment required to keep
an insurance policy in effect. -Also termed insurance
premium. [Cases: Insurance (;::::>2000.]
advance premium. A payment made before the start
of the period covered by the insurance policy. lCases:
Insurance (;::::> 1760.]
earned premium. The portion of an insurance
premium applicable to the coverage period that has
already expired. _ For example, ifthe total premium
for a one-year insurance policy is $1,200, the earned
premium after three months is $300. [Cases: Insur
ance (;::::>2000.]
gross premium. 1. The net premium plus expenses (Le.,
the loading), less the interest factor. See LOADING;
INTEREST FACTOR. [Cases: Insurance 2005.]
2. The premium for participating life insurance. See
participating insurance under INSURANCE.
natural premium. Ihe actual cost oflife insurance
based solely on mortality rates. -This amount will
be less than a net premium. See net premium.
net level annual premium. A net premium that stays
the same each year.
net premium. 1. Generally, the premium amount for
an insurance policy less agent commissions. [Cases:
Insurance (;::::> 16S2. 2000.] 2. The portion of the
premium that covers the estimated cost of claims. 3.
The money needed to provide benefits under an insur
ance policy. -The net premium in a life-insurance
policy is calculated by using an assumed interest and
mortality-table rate; it does not include additional
expense amounts that will be charged to the policy
holder. -Also termed net valuation premium.
net single premium. The money that must be col
lected from a policyholder at one time to guarantee
enough money to pay claims made on an insurance
policy. -This amount assumes that interest accrues
at an expected rate and is based on a prediction of
the likelihood ofcertain claims. [Cases: Insurance
(;::::>2037.]
net valuation premium. See net premium.
unearned premium. The portion of an insurance
premium applicable to the coverage period that has
not yet occurred. _ In the same example as above
under earned premium, the unearned premium after
three months is $900. [Cases: Insurance 1371,
1930,2046.]
2. A sum ofmoney paid in addition to a regular price,
salary, or other amount; a bonus. 3. The amount
by which a security's market value exceeds its face
value. -Also termed (sped.) bond premium. Cf.
DISCOUNT (3).
control premium. A premium paid for shares carrying
the power to control a corporation. -The control
premium is often computed by comparing the aggre
gate value ofthe controlling block


the power to control a corporation. -The control
premium is often computed by comparing the aggre
gate value ofthe controlling block of shares with the
cost that would be incurred if the shares could be

1301
acquired at the going market price per share. [Cases:
Corporations 0174.]
4. The amount paid to buy a securities option. -Also
termed (in sense 4) option premium.
premium bond. See BOND (3).
premium loan. See LOAN.
premium note. See NOTE (1).
premium on capital stock. See paid-in surplus under
SURPLUS.
premium pudoris. See PRAEMIUM PUDIClTIAE.
premium rate. Insurance. The price per unit oflife insur
ance. It is usu. expressed as a cost per thousands of
dollars of coverage. Life insurers use three factors
the interest factor, the mortality factor, and the risk
factor -to calculate premium rates. Sometimes
shortened to rate. See INTEREST FACTOR; MORTALITY
FACTOR; RISK FACTOR. [Cases: Insurance 1541
1546.]
premium stock. See STOCK.
premium tax. See TAX.
prenatal injury. Harm to a fetus or an embryo. Cf. BIRTH
INJURY.
prenatal tort. See TORT.
prender. The right to take a thing before it is offered.
Also spelled prendre.
prender de baron (pren-dar da bar-an). [Law French
"a taking of husband"] Hist. A plea asserting that the
former wife of a murder victim should not be allowed to
appeal a murder case against the alleged killer because
she has since remarried.
prendre. See PRENDER.
prenup, n. Slang. See PRENUPTIAL AGREEMENT.
prenuptial (pree-nap-shal), adj. (1857) Made or occur
ring before marriage; premaritaL -Also termed ante
nuptial (an-tee-nap-shal). Cf. POSTNUPTIAL.
prenuptial agreement. (1882) An agreement made
before marriage usu. to resolve issues ofsupport and
property division if the marriage ends in divorce or
by the death of a spouse. Also termed antenuptial
agreement; antenuptial contract; premarital agreement;
premarital contract; marriage settlement. -Sometimes
shortened to prenup. Cf. POSTNUPTIAL AGREEMENT;
COHABITATION AGREEMENT. [Cases: Husband and Wife
029,31.J
prenuptial gift. See GIFT.
prenuptial will. See WILL.
prepaid card. See STORED-VALUE CARD.
prepaid expense. See EXPENSE.
prepaid income. See INCOME.
prepaid interest. See INTEREST (3).
prepaid legal services. (1963) An arrangement usu.
serving as an employee benefit -that enables a person prerogative of mercy
to make advance payments for future legal services.
[Cases: Attorney and Client 0137.]
preparation. Criminal law. The act or process of
devising the means necessary to commit a crime. Cf.
ATTEMPT.
prepayment clause. (1935) A loan-document provision
that permits a borrower to satisfy a debt before its due
date. Although any interest not yet due is waived, the
lender may impose a penalty for prepayment. [Cases:
Bills and Notes C~')129,429.]
prepayment penalty. See PENALTY (2).
prepense (pree-pens), ad). Rare. Planned; deliberate
<malice prepense>.
prepetition (pree-pa-tish-an), adj. (I938) Occurring
before the filing of a petition (esp. in bankruptcy)
<prepetition debts>.
preponderance (pri-pon-d<'Jr-<'Jnts), n. (17c) Superiority
in weight, importance, or influence. -preponderate
(pri-pon-d<'Jf-ayt), vb. -preponderant (pri-pon-d<'Jr
<'Jnt), adj.
preponderance ofthe evidence. (I8c) The greater weight
of the evidence, not necessarily established by the
greater number of witnesses testifying to a fact but by
evidence that has the most convincing force; superior
evidentiary weight that, though not sufficient to free the
mind wholly from all reasonable doubt, is still sufficient
to incline a fair and impartial mind to one side of the
issue rather than the other . This is the burden of proof
in most civil trials, in which the jury is instructed to
find for the party that, on the whole, has the stronger
evidence, however slight the edge may be. -Also
termed preponderance ofproof; balance ofprobabil
ity. See REASONABLE DOUBT. Cf. clear and convincing
evidence under EVIDENCE. [Cases: Evidence 0598.]
"Criminal convictions are so serious in their consequences
that it is felt that an accused person should be freed, if
there is any fair or reasonable doubt about his guilt, even
though there seems to be considerable likelihood that
he did commit the crime .... In civil cases, however, the
consequence of losing a case, although serious enough in
many cases, is not considered to be such as to require so
stringent a rule. Accordingly the plaintiff is entitled to a
verdict if he proves the case 'by the preponderance of the
evidence.' In other words, he is entitled to a verdict even
though there may be a reasonable doubt as to the liability
of the accused, if the jury is satisfied nevertheless that the
plaintiff has proved his case." Charles Herman Kinnane, A
First Book on AngloAmerican Law 562 (2d ed. 1952).
prerogative (pri-rog-<'J-tiv), n. (15c) An exclusive right,
power, privilege, or immunity, usu. acquired by virtue
ofoffice. prerogative, adj.
prerogative ofmercy. The discretionary power of a
supreme authority, such as a state governor, national
president, or sovereign, to commute a death sentence,
change the method ofexecution, or issue a pardon.
prerogative court. See COURT.
prerogative ofmercy. The limited right of a chief execu
tive to commute a death sentence or to pardon a con
victed person, esp. one convicted of a capital crime.

1302 prerogative writ
prerogative writ. See extraordinary writ under WRIT.
pres (pray). [Law French] Near. See CY PRES.
presale. The sale ofreal property (such as condominium
units) before construction has begun. [Cases: Condo
minium
prescribable (pri-sknb-J-bJI), adj. (1890) (Of a right)
that can be acquired or extinguished by prescription.
prescribe, vb. I. To dictate, ordain, or direct; to estab
lish authoritatively (as a rule or guideline). 2. To claim
ownership through prescription. 3. To invalidate or
otherwise make unenforceable through prescription.
4. To become invalid or otherwise unenforceable
through prescription. [Cases: Holidays 1; Limita
tion ofActions ~1.J
prescript, adj. Having the nature of a rule or
command.
prescript, n. Archaic. A rule, law, command, or ordi
nance; PRESCRIPTION (2). -A general term, prescript
may also apply to an edict, a regulation, or any instruc
tive guideline.
prescription, n. (15c) 1. The act ofestablishing authorita
tive rules. Cf. PROSCRIPTION. 2. A rule so established.
Also termed (archaically) prescript. 3. The effect ofthe
lapse oftime in creating and destroying rights. [Cases:
Limitation ofActions ~1.]4. The extinction ofa title
or right by failure to claim or exercise it over a long
period. - Also termed negative prescription; extinctive
prescription. 5. The acquisition of title to a thing (esp.
an intangible thing such as the use of real property)
by open and continuous possession over a statutory
period. - Also termed positive prescription; acquisitive
prescription. Cf. ADVERSE POSSESSIO~. See (for senses
3-5) PERIOD OF PRESCRIPTION. [Cases: Adverse Posses
sion C=1-95.)6. Int'llaw. The acquisition ofa territory
through a continuous and undisputed exercise ofsov
ereignty over it. 7. Oil &gas. A Louisiana doctrine that
extinguishes unused mineral servitudes after ten years
ifthere is no effort to discover or produce on the land
or the land pooled with it. [Cases: Mines and Minerals
C;:,78.2.]
acquisitive prescription (J-kwiz-;:l-tiv). 1. PRESCRIP
TION (5). 2. Civil law. A mode ofacquiring ownership
or other legal rights through possession for a specified
period of time. [Cases: Adverse Possession (,'-::> 1.)
liberative prescription (lib-;:l-rJ-tiv). Civil law. A bar
to a lawsuit resulting from its untimely filing. La. Civ.
Code art. 3447. -This term is essentially the civil-law
equivalent ofa statute oflimitations. See STATUTE OF
LIMITATIONS. [Cases: Limitation ofActions
prescription in a que estate (ah kee). [Law French "pre
scription in whose estate"] A claim of prescription
based on the immemorial enjoyment of the right by
the claimant and the former owners whose estate the
claimant has succeeded to.
prescription ofnonuse. Civil law. A mode ofextinction
ofa real right other than ownership (such as a servi
tude) as a result of failure to exercise the right for a speCified period of time. [Cases: Adverse Possession
~109;EasementsC=30.j
prescriptive easement. See EASEMENT.
prescriptive right. (17c) A right obtained by prescription
<after a nuisance has been continuously in existence for
20 years, a prescriptive right to continue it is acquired
as an easement appurtenant to the land on which it
exists>. [Cases: Nuisance ~1l-17.]
presence, n. 1. The state or fact ofbeing in a particular
place and time <his presence at the scene saved two
lives>. 2. Close physical proximity coupled with aware
ness <the agent was in the presence of the principal>.
constructive presence. 1. Criminal law. Legal imputa
tion ofhaving been at a crime scene, based on having
been close enough to the scene to have aided and
abetted the crime's commission. See CONSPIRACY.
[Cases: Criminal Law C=59(3).] 2. Wills & estates.
Legal imputation ofa witness's having been in the
room when a will was signed, based on the fact that
the testator and the witness were able to see each
other at the time of the signing. _ This principle was
commonly employed until the 20th century, when
the presence-of-the-testator rule became dominant.
See PRESENCE-OF-THE-TESTATOR RULE. [Cases: Wills
~123(5).]
presence-of-defendant rule. The principle that a felony
defendant is entitled to be present at every major stage
ofthe criminal proceeding. Fed. R. Crim. P. 43. [Cases:
Criminal Law ~636.J
presence ofthe court. (l8e) The company or proximity
ofthe judge or other courtroom official. -For purposes
ofcontempt, an action is in the presence ofthe court
ifit is committed within the view ofthe judge or other
person in court and is intended to disrupt the court's
business.
"Some deCisions indicate that the term 'in the presence of
the court' is to be given a liberal interpretation. that 'the
court' consists not of the judge, the courtroom, the jury,
or the jury room individually. but of all of these combined,
and that the court is present wherever any of its constitu
ent parts is engaged in the prosecution of the business
of the court according to law." 17 Am. Jur. 2d Contempt
 19 (1990).
presence-of-the-testator rule. The principle that a
testator must be aware (through Sight or other sense)
that the witnesses are signing the will. -Many juris
dictions interpret this requirement liberally, and the
Uniform Probate Code has dispensed with it. [Cases:
Wills 117.1
present, adj. (14c) 1. Now existing; at hand <a present
right to the property>. 2. Being considered; now under
discussion <the present appeal does not deal with that
issue>. 3. In attendance; not elsewhere <all present
voted for him>.
present ability. See ABILITY.
present and voting. Parliamentary law. (Of a member)
casting a vote. -The result of a vote is ordinarily
determined with reference to the members voting
(often termed, somewhat redundantly, as "present and

voting"). An answer of"present" when casting a vote
amounts to an abstention because the voter is indicat
ing that he or she is present but not voting. See ABSTAIN
(1).
presentation. (I5c) 1. 1he delivery of a document to
an issuer or named person for the purpose of initiat
ing action under a letter ofcredit; PRESENTMENT (3).
[Cases: Banks and Banking 191.J 2. Hist. Eccles.
law. A benefice patron's nomination of a person to fill
a vacant benefice . Ifthe bishop rejected the appointee,
the patron could enforce the right to fill the vacancy by
writ ofquare impedit in the Court ofCommon Pleas.
See QUARE IMPEDIT. Cf. ADVOWSON; INSTITUTION (5).
next presentation. Hist. Eccles. law. In the law of
advowsons, the right to present to the bishop a clerk
to fill the first vacancy that arises in a church or other
ecclesiastical office.
present case. See case at bar under CASE.
present conveyance. See CONVEYANCE.
present covenant. See COVENANT (4).
presentence hearing. (1940) A proceeding at which a
judge or jury receives and examines


(4).
presentence hearing. (1940) A proceeding at which a
judge or jury receives and examines all relevant infor
mation regarding a convicted criminal and the related
offense before passing sentence. Also termed sen
tencing hearing. [Cases: Sentencing and Punishment
<>325.)
presentence-investigation report. (1943) A probation
officer's detailed account of a convicted defendant's
educational, criminal, family, and social background,
conducted at the court's request as an aid in passing
sentence. See Fed. R. Crim. P. 32(c). -Abbr. PSI;
PIR. -Often shortened to presentence report. [Cases:
Sentencing and Punishment C=-.c275-30l.)
present enjoyment. See ENJOYMENT.
presenter. Commercial law. Any person presenting a
document (such as a draft) to an issuer for honor. VCC
 5-102.
present estate. 1. ESTATE (1). 2. See present interest under
INTEREST (2).
presenting bank. See BANK.
presenting jury. See GRAND JURY.
present interest. See INTEREST (2).
presentment (pri-zent-m;:mt). (15c) 1. The act ofpresent
ing or laying before a court or other tribunal a formal
statement about a matter to be dealt with legally. 2.
Criminal procedure. A formal written accusation
returned by a grand jury on its own initiative, without
a prosecutor's previous indictment request.  Present
ments are obsolete in the federal courts. [Cases; Grand
Jury <>42.]
"A grand jury has only two functions, either to indict or to
return a 'no bill.' The Constitution speaks also of a 'present
ment,' but this is a term with a distinct historical meaning
now not well understood. Historically presentment was
the process by which a grand jury initiated an independent
investigation and asked that a charge be drawn to cover
the facts should they constitute a crime. With United States
attorneys now always available to advise grand juries, proceeding by presentment is an outmoded practice." 1
Charles Alan Wright, Federal Practice and Procedure  110,
at 459 (3d ed. 1999).
3. 'The formal production of a negotiable instrument
for acceptance or payment. -Also termed (in sense 3)
presentation. [Cases; Bills and Notes <>385-407.]
"Presentment and dishonor occur, for instance, when the
holder of a check attempts to cash it at the drawee bank,
but payment is refused because the drawer lacks sufficient
funds on deposit. The demand for payment is presentment.
The bank's refusal to pay is dishonor." 2 James J. White &
Robert S. Summers, Uniform Commercial Code  16-8. at
100 (4th ed. 1995).
presentment for acceptance. (i8c) Production of an
instrument to the drawee, acceptor, or maker for
acceptance. This type of presentment may be
made anytime before maturity, except that with bills
payable at Sight, after demand, or after sight, present
ment must be made within a reasonable time. [Cases:
Bills and Notes <>388.J
presentment for payment. (18c) Production of an
instrument to the drawee, acceptor, or maker for
payment.  This type ofpresentment must be made
on the date when the instrument is due. [Cases: Bills
and Notes C:::::o399.]
presentment of Englishry. Hist. The offering of proof
that a slain person was English rather than (before the
Conquest) a Dane or (after the Conquest) a Norman.
 1his requirement was issued first by the conquering
Danes and then by the Normans to protect these groups
from the English by the threat ofa village-or hundred
wide amercement ifthe inhabitants failed to prove that
a dead person found among them was English.
presentment warranty. See WARRANTY (2).
present recollection refreshed. (1908) Evidence. Awit
ness's memory that has been enhanced by shOWing the
witness a document that describes the relevant events.
 The document itself is merely a memory stimulus
and is not admitted in evidence. Fed. R. Evid. 612.
Also termed refreshing recollection; refreshing memory;
present recollection revived. Cf. PAST RECOLLECTION
RECORDED. [Cases: Witnesses <>253.]
presents, n. pI. (14c) Archaic. 1he instrument under
consideration . This is usu. part ofthe phrase these
presents, which is part of the longer phrase know all
men by these presents (itself a loan translation from the
Latin noverint universi per praesentes). See KNOW ALL
MEN BY THESE PRESENTS.
present sale. See SALE.
present sense impression. (1942) Evidence. One's percep
tion ofan event or condition, formed during or imme
diately after the fact.  A statement containing a present
sense impression is admissible even if it is hearsay.
Fed. R. Evid. 803(1). Cf. EXCITED UTTERANCE. [Cases:
Criminal Law <>419(2.15); Evidence (...'-:> 120.]
present use. See USE (4).
present value. 1he sum ofmoney that, with compound
interest, would amount to a specified sum at a specified

preservation order 	 1304
future date; future value discounted to its value today.
Also termed present worth.
adjusted present value. An asset's value determined by
adding together its present value and the value added
by capital-structure effects. -Abbr. APV.
net present value. The present value of net cash flow
from a project, discounted by the cost of capital.
This value is used to evaluate the project's investment
potential. Abbr. NPV.
preservation order. A direction to a property owner
to maintain a historic building or conserve a natural
habitat.
preside, vb. (1Sc) 1. To occupy the place ofauthority, esp.
as a judge during a hearing or trial <preside over the
proceedings>. 2. To exercise management or control
<preside over the estate>.
president, n. 1. The chief political executive ofa govern
ment; the head of state. [Cases: United States C=:;26.]
2. The chief executive officer ofa corporation or other
organization. 3. CHAIR (1). 4. CHAIR (3). See (in senses
3 & 4) presiding officer (3) under OFFICER (2). -presi
dential, adj.
immediate past president. The last president who held
office before the incumbent. See EMERITUS.
president-elect. An officer who automatically succeeds
to the presidency when the incumbent president's
term expires . Ifthe organization's governing docu
ments so provide, the president-elect may act as presi
dent in the incumbent president's absence, or may
assume the presidency early if the incumbent does
not finish the term.
president emeritus. See EMERITUS.
presidential elector. See ELECTOR (1).
Presidential message. See MESSAGE.
president judge. See presiding judge under rUDGE.
president of a court-martial. AIilitary law. The senior
member in rank present at a court-martial trial. [Cases:
Military Justice C=:;870.j
President of the United States. The highest execu
tive officer of the federal government of the United
States . The President is elected to a four-year term
by a majority of the presidential electors chosen by
popular vote from each of the states. The President
must be a natural citizen, must be at least 3S years old,
and must have been a resident for 14 years within the
United States. U.S. Const. art. II,  1. [Cases: United
States C=:;26.]
presiding judge. See JUDGE.
presiding juror. See JUROR.
presiding officer. See OFFICER (2).
press, n. I. The news media; print and broadcast news
organizations collectively. [Cases: Constitutional Law
~90(2).1
'The Constitution specifically selected the press, which
includes not only newspapers, books, and magazines, but
also humble leaflets and circulars, to play an important role in the discussion of public affairs." Mills v. Alabama, 384
U.S. 214,219,86 S.Ct. 1434, 1437 (1966).
"'Press' could refer to one or more subsets of media,
defined either by function or form. To the extent that
existing law defines 'the press' at all, it does so mostly
in terms of specific media forms. The Supreme Court has
addressed the matter only obliquely .... [lIt has never had
to decide whether a particular litigant was 'press.' In most
cases the question does not arise because the claimed
right would be protected as fully by the Speech Clause as
by the Press Clause. The cases in which the Court seems
to rely on the Press Clause have involved newspapers or
magazines whose status as press was unquestioned. The
Court on other occasions has mentioned 'publishers and
broadcasters,' 'the media,' 'editorial judgment,' 'editorial
control,' 'journalistic discretion,' and 'newsgathering' as
possible objects of protection. The most famous discus
sion of the meaning of the Press Clause, a 1974 speech
byJustice Stewart, identified its beneficiaries as 'the daily
newspapers and other established media,' or 'newspapers,
television, and magazines.'" David A. Anderson, Freedom
of the Press, 80 Texas L. Rev. 429, 436 (2002).
2. Rist. A piece of parchment, as one sewed together to
make up a roll or record of judicial proceedings.
Press Clause. The First Amendment provision that
"Congress shall make no law ... abridging the
freedom ... of the press." U.S. Const. amend l. -Also
termed Freedom ofthe Press Clause. [Cases: Constitu
tional LawC=:;2070-2081.]
prest (prest). Rist. A duty to be paid by the sheriff upon
his account in the Exchequer or for money remaining
in his custody.
prestable (pres-ta-bal), adj. Scots law. 1. Payable. 2.
Enforceable; exigible . This term appears generally in
reference to a debt. Cf. EXIGIBLE.
prestation 	 (pre-stay-shan). Rist. 1. A payment (or
presting) of money. 2. The rendering ofa service.
prest money. Rist. A monetary payment made to a
soldier or sailor on enlistment.
presume, vb. To assume beforehand; to suppose to be
true in the absence of proof.
presumed bias. See implied bias under BIAS.
presumed crime. See constructive crime under CRIME.
presumed fact. See FACT.
presumed father. See FATHER.
presumed-seller test. A method of imposing product
liability on a manufacturer if the manufacturer, having
full knowledge of the product's dangerous propensi
ties, would be negligent in placing the product on the
market.
presumption. (ISc) A legal inference or assumption that
a fact exists, based on the known or proven existence
of some other fact or group of facts. Most presump
tions are rules ofevidence calling for a certain result
in a given case unless the adversely affected party over
comes it with other evidence. A presumption shifts the
burden of production or persuasion to the opposing
party, who can then attempt to overcome the presump
tion. See BURDEN OF PRODUCTION. [Cases: Criminal
Law Evidence C=:;S3-89.]

"A presumption may be defined to be an inference as to
the existence of one fact from the existence of some other
fact founded upon a previous experience of their connec
tion." William P. Richardson, The Law of Evidence  53, at
25 (3d ed. 1928).
absolute presumption. See conclusive presumption.
adverse presumption. See adverse inference under
INFERENCE.
artificial presumption. See presumption oflaw.
conclusive presumption. (I8c) A presumption that
cannot be overcome by any additional evidence or
argument <it is a conclusive presumption that a child
under the age of seven is incapable ofcommitting a
felony>. Also termed absolute presumption; irre
buttable presumption; mandatory presumption; pre
sumption juris et de jure. Cf. rebuttable presumption.
[Cases: Constitutional Law (;:::::>253(5); Evidence
53-89.]
'''Conclusive presumptions' or 'irrebuttable presumptions'
are usually mere fictions, to disguise a rule of substantive
law (e.g., the conclusive presumption of malice from an
unexcused defamation); and when they are not fictions,
they are usually repudiated by modern courts." John H.
Wigmore, A Students' Textbook ofthe Law ofEvidence 454
(1935).
"Conclusive presumptions, sometimes called irrebuttable
presumptions of law, are really rules of law. Thus it is said
that a child under the age of fourteen years is conclusively
presumed to be incapable of committing rape. This is only
another way of saying that such a child cannot be found
guilty of rape." Richard Eggleston, Evidence, Proof and
Probability 92 (1978).
conditional presumption. See rebuttable presump
tion.
conflicting presumption. (1830) One of two or more
presumptions that would lead to opposite results.
Also termed inconsistent presumption. [Cases:
Criminal Law (:::;:'325; Evidence (::::>88.]
'''Conflicting presumptions' are simply two ordinary pre
sumptions that would give opposite results; usually they
are really successive presumptions. E.g., where A proves
himself to be the son of N, wife of M, but M and N were
already separated, and later M married P, and had a son B,
the later marriage of M might presume a prior divorce from
N before separation to make it valid, and yet the birth of
A from a married mother might be presumed legitimate,
and thus the question whether A or B was the legitimate
son would be attended by opposing pres


mother might be presumed legitimate,
and thus the question whether A or B was the legitimate
son would be attended by opposing presumptions. But in
this aspect the doctrine of presumptions is clouded with
difficulties and leads to much vain speculation and logical
unrealism." John H. Wigmore, A Students' Textbook of the
Law ofEvidence 454 (1935).
disputable presumption. See rebuttable presumption.
dry presumption. A presumption that has no proba
tive value unless the party with the burden of proof
presents evidence to support the presumption. [Cases:
Evidence (:::;:53.]
factual presumption. See presumption offact.
heeding presumption. (1990) A rebuttable presumption
that an injured product user would have followed a
warning label had the product manufacturer provided
one. [Cases: Products Liability inconsistent presumption. See conflicting presump
tion.
irrebuttable presumption. See conclusive presump
tion.
legal presumption. See presumption oflaw.
mandatory presumption. See conclusive presump
tion.
McClanahan presumption. See MCCLANAHA>I PRE
SUMPTION.
mixed presumption. (1838) A presumption containing
elements ofboth law and fact.
Morgan presumption. See MORGAN PRESUMPTION.
natural presumption. (16c) A deduction of one fact
from another, based on common experience. [Cases:
Criminal Law <~=)305.1; Evidence (;:::::>53.J
permissive presumption. (1827) A presumption that a
trier offact is free to accept or reject from a given set
of facts. Also termed permissive inference. [Cases:
Criminal Law (;:::::>306,324; Evidence (;:::::>53,87.]
presumption juris et de jure. See conclusive presump
tion.
presumption ofa quorum. Parliamentary law. The pre
sumption that a quorum, once established, is present
until the chair or a member notices otherwise.
presumption offact. A type of rebuttable presumption
that may be, but as a matter oflaw need not be, drawn
from another established fact or group offacts <the
possessor ofrecently stolen goods is, by presumption
offact, considered the thief>. -Also termed factual
presumption. [Cases: Criminal LawC:::.:;,306.; Evidence
(::::'53,87.]
presumption ofgeneral application. A presumption
that applies across the board to all legislation, as a
result ofwhich lawmakers need not list each such pre
sumption in all bills. [Cases: Criminal Law (:::;:'305;
Evidence
"One function of the word 'presumption' in the context of
statutory interpretation is to state the result of this leg
islative reliance (real o( assumed) on firmly established
legal principles. There is a 'presumption' that mens rea is
required in the case of statutory crimes, and a 'presump
tion' that statutory powers must be exercised reasonably.
These presumptions apply although there is no question
of linguistic ambiguity in the statutory wording under con
struction, and they may be described as 'presumptions of
general application: At the level of interpretation, their
function is the promotion of brevity on the part of the
draftsman. Statutes make dreary enough reading as it is,
and it would be ridiculous to insist in each instance upon an
enumeration of the general principles taken for granted."
Rupert Cross, Statutory Interpretation 142-43 (1976)_
presumption o/innocence. See PRESUMPTION OF INNO
CENCE.
presumption ofintent. (18c) A permissive presumption
that a criminal defendant who intended to commit an
act did so. [Cases: Criminal Law
presumption a/law. (16c) A legal assumption that a
court is required to make ifcertain facts are estab
lished and no contradictory evidence is produced <by

presumption oflaw, a criminal defendant is consid
ered innocent until proven guilty beyond a reasonable
doubt>. -Also termed legal presumption; artificial
presumption; praesumptio juris; pseudopresumption
oflaw. [Cases: Criminal Law C:>305; Evidence C':::'
86.]
presumption of maternity. See PRESUMPTION OF
MATERNITY.
presumption ofnatural and probable consequences.
See PRESUMPTION OF NATURAL AND PROBABLE CON
SEQUENCES.
presumption ofpaternity. See PRESUMPTION OF PATER
NITY.
presumption ofsurvivorship. See PRESUMPTION OF
SURVIVORSHIP.
presumption of validity. See PRESUMPTIONO OF
VALIDITY.
prima jacie presumption. See rebuttable presump
tion.
procedural presumption. A presumption that may be
rebutted by credible evidence. [Cases: Criminal Law
C:>305; Evidence (;::::=-53.]
pseudopresumption oflaw. See presumption oflaw.
rebuttable presumption. (1852) An inference drawn
from certain facts that establish a prima facie case,
which may be overcome by the introduction of
contrary evidence. -Also termed prima faCie pre
sumption; disputable presumption; conditional
presumption; praesumptio juris. Cf. conclusive pre
sumption. [Cases: Criminal Law Evidence
C~89.]
statutory presumption. (1819) A rebuttable or conclu
sive presumption that is created by statute. [Cases:
Criminal Law C':::' 305; Evidence C':::'53.]
Thayer presumption. See THAYER PRESUMPTION.
presumption of death. (18c) A presumption that arises
on the unexpected disappearance and continued
absence of a person for an extended period, commonly
seven years. [Cases: Damages C':::'2.]
presumption-of-fertility rule. See FERTILE-OCTOGE
NARIAN RULE.
presumption-of-identity rule. The common-law rule
that unless there is a specific, applicable statute in
another state, a court will presume that the common
law has developed elsewhere identically with how it has
developed in the court's own state, so that the court
may apply its own state's law. _ Today this rule applies
primarily in Georgia. See Shorewood Packaging Corp.
v. Commercial Union Ins., 865 F. Supp. 1577 (N.D. Ga.
1994). [Cases: Criminal Law (::::> 320; Evidence
80.]
presumption ofinnocence. (18c) Criminal law. The fun
damental principle that a person may not be convicted
ofa crime unless the government proves guilt beyond
a reasonable doubt, without any burden placed on the accused to prove innocence. [Cases: Criminal Law (;::::=
308; Evidence (;::::=-60.]
presumption oflegitimacy. See PRESUMPTION OF PATER
NITY.
presumption of maternity. Family law. The presumption
that the woman who has given birth to a child is both
the genetic mother and the legal mother ofthe child.
Also termed maternity presumption. Cf. PRESUMPTION
OF PATERNITY.
presumption of natural and probable consequences.
(1980) Criminal law. The presumption that mens rea
may be derived from proof ofthe defendant's conduct.
[Cases: Criminal LawC':::"312.]
presumption of paternity. (1829) Family law. The pre
sumption that the father ofa child is the man who (1)
is married to the child's mother when the child was
conceived or born (even though the marriage may have
been invalid), (2) married the mother after the child's
birth and agreed either to have his name on the birth
certificate or to support the child, or (3) welcomed the
child into his home and later held out the child as his
own. Also termed paternity presumption; presump
tion oflegitimacy; legitimacy presumption. See presumed
father under FATHER. [Cases: Children Out-of-Wedlock
C='3.]
presumption of survivorship. (1844) The presumption
that one of two or more victims of a common disaster
survived the others, based on the supposed survivor's
youth, good health, or other reason rendering survivor
ship likely. [Cases: Death
presumption ofvalidity. Patents. The doctrine that the
holder of a patent is entitled to a statutory presump
tion that the patent is valid and that the burden is on a
challenger to prove invalidity. See BORN VALID. [Cases:
Patents C:> 112.1.1
presumptive (pri-zamp-tiv), adj. (15c) 1. Giving reason
able grounds for belief or presumption. 2. Based on a
presumption. [Cases: Criminal Law (;::::=-305.1; Evidence
(:::::53.] presumptively, adv.
presumptive authority. See implied authority under
AUTHORITY (1).
presumptive damages. See punitive damages under
DAMAGES.
presumptive death. See DEATH.
presumptive evidence. See EVIDENCE.
presumptive heir. See heir presumptive under HEIR.
presumptive notice. See implied notice under NOTICE.
presumptive proof. See conditional proof under PROOF.
presumptive sentence. See SENTENCE.
presumptive sentencing. See SENTENCING.
presumptive taker. See TAKER.
presumptive title. See TITLE (2).
presumptive trust. See resulting trust under TRUST.
pret a usage. Civil law. A gratuitous loan for use.

1307 prevention doctrine
pretax, adj. Existing or occurring before the assessment
or deduction of taxes <pretax income>. [Cases: Internal
Revenue (;=3110; Taxation (;=3446.]
pretax earnings. See EARNINGS.
prete-nom (pret-nohm). [French] One who lends his
name.
pretensive joinder. See JOINDER.
preterlegal (pree-t~r-Iee-gal), adj. Rare. Beyond the
range ofwhat is legal; not according to law <preterle
gal customs>.
pretermission (pree-tdr-mish-~n). (lSc) 1. The condition
of one who is pretermitted, as an heir of a testator. 2.
The act of omitting an heir from a will. [Cases: Descent
and Distribution (;=47.]
pretermission statute. See PRETERMITTED-HEIR
STATUTE.
pretermit (pree-tar-mit), vb. (I5c) 1. To ignore or dis
regard purposely <the court pretermitted the consti
tutional question by deciding the case on procedural
grounds>. 2. To neglect, overlook, or omit acciden
tally <the third child was pretermitted in the will>.
Although in ordinary usage sense 1 prevails, in legal
contexts (esp. involving heirs) sense 2 is usual. [Cases:
Descent and Distribution (;=47.]
pretermitted child. See pretermitted heir under HEIR.
pretermitted defense. See DEFENSE (1).
pretermitted heir. See HEIR.
pretermitted-heir statute. (1955) A state law that, under
certain circumstances, grants an omitted heir the right
to inherit a share of the testator's estate, usu. by treating
the heir as though the testator had died intestate.
Most states have a pretermitted-heir statute, under
which an omitted child or spouse receives the same
share of the estate as if the testator had died intestate,
unless the omission was intentional. The majority
rule, and that found in the Uniform Probate Code, is
that only afterborn children that is, children born
after th~ execution of a will receive protection as
pretermitted heirs. Under that circumstance, an infer
ence arises that their omission was inadvertent rather
than purposeful. -Also termed pretermission statute.
[Cases: Descent and Distribution (;=47.]
pretermitted spouse. See pretermitted heir under
HEIR.
pretext (pree-tekst), n. (16c) A false or weak reason or
motive advanced to hide the actual or strong reason
or motive. [Cases: Civil Rights (;=1033(1), 1137.]
pretextual (pree-teks-choo-al), adj.
pretextual arrest. See ARREST.
pretextus (pree-teks-t"s). [Latin] A pretext.
pretium (pree-shee-am). [Latin) Price; value; worth.
pretium affectionis (pree-shee-am ,,-fek-shee-oh-nis).
An enhanced value placed on a thing by the fancy
of its owner, growing out of an attachment for the
specific article and its associations; sentimental value. -This value is not taken as a basis for measuring
damages.
pretium periculi (pree-shee-"m pa-rik-ya-lr). The price
of the risk, such as the premium paid on an insur
ance policy.
pretorial court (pri-tor-ee-"l). See COURT.
pretrial conference. (1938) An informal meeting at
which opposing attorneys confer, usu. with the judge,
to work toward the disposition of the case by discuss
ing matters of evidence and narrowing the issues that
will be tried. See Fed. R. Civ. P. 16; Fed. R. Crim. P. 17.1.
-The conference takes place shortly before trial and
ordinarily results in a pretrial order. -Often short
ened to pretrial. -Also termed pretrial hearing. [Cases:
Federal Civil Procedure (;=1921; Pretrial Procedure
(;=741.]
pretrial detention. See DETENTION.
pretrial discovery. See DISCOVERY.
pretrial diversion. See DIVERSION PROGRAM (1).
pretrial hearing. See PRETRIAL CONFERENCE.
pretrial intervention. 1. DIVERSION PROGRAM (1). 2. See
deferred judgment under JUDGMENT.
pretrial investigation. Military law. An investigation
to decide whether a case should


See
deferred judgment under JUDGMENT.
pretrial investigation. Military law. An investigation
to decide whether a case should be recommended for
forwarding to a general court-martial. [Cases: Military
Justice (;=921.)
pretrial order. (1939) A court order setting out the
claims and defenses to be tried, the stipulations ofthe
parties, and the case's procedural rules, as agreed to by
the parties or mandated by the court at a pretrial con
ference. See Fed. R. Civ. P. 16(e). -In federal court, a
pretrial order supersedes the pleadings. [Cases: Federal
Civil Procedure C=, 1935; Pretrial Procedure (;=747.)
prevail, vb. (17c) 1. To obtain the relief sought in an
action; to win a lawsuit <the plaintiff prevailed in the
Supreme Court>. 2. To be commonly accepted or pre
dominant <it's unclear which line of precedent will
prevail>.
prevailing party. See PARTY (2).
prevarication (pri-var-a-kay-sh"n), 11. (I6c) The act or
an instance oflying or avoiding the truth; equivoca
tion. prevaricate (pri-var-a-kayt), vb.
prevaricator (pri-var-<l-kay-tar), 11. [Latin] 1. A liar; an
equivocator. 2. Roman law. One who betrays anoth
er's trust, such as an advocate who aids the opposing
party by betraying the client. Also spelled (in sense
2) praevaricator.
prevent, vb. To hinder or impede <a gag order to prevent
further leaks to the press>.
preventative law. See PREVENTIVE LAW.
prevention. Civil law. The right of one of several judges
having concurrent jurisdiction to exercise that jurisdic
tion over a case that the judge is first to hear.
prevention doctrine. (1979) COl1tracts. The principle that
each contracting party has an implied duty to not do

1308 preventive custody
anything that prevents the other party from perform
ing its obligation. -Also termed prevention-of-perfor
mance doctrine. [Cases: Contracts (::::> 168,303(4).]
preventive custody. See CUSTODY (1).
preventive detention. See DETENTION.
preventive injunction. See INJUNCTION.
preventive justice. See JUSTICE (1).
preventive law. A practice oflaw that seeks to minimize
a client's risk oflitigation or secure more certainty with
regard to the client's legal rights and duties. -Empha
sizing planning, counseling, and the nonadversarial
resolution of disputes, preventive law focuses on the
lawyer's role as adviser and negotiator. Also termed
(less correctly) preventative law.
preventive punishment. See PUNISHMENT.
previously taxed income. See INCOME.
previous notice. See NOTICE (6).
previous question. See CLOSE DEBATE.
price. The amount ofmoney or other consideration asked
for or given in exchange for something else; the cost at
which something is bought or sold. [Cases: Contracts
(::::>229(1); Sales C=:) 74.1.]
agreed price. The price for a sale, esp. ofgoods, arrived
at by mutual agreement. Cf. open price. [Cases: Sales
(::::>75.J
arm's-length price. The price at which two unre
lated, unaffiliated, and nondesperate parties would
freely agree to do business. See arm's-length trans
action under TRANSACTloN;fair market value under
VALUE.
asked price. The lowest price at which a seller is willing
to sell a security at a given time. See SPREAD (2).
asking price. Ihe price at which a seller lists property
for sale, often implying a Willingness to sell for less.
Also termed ask price; offering price.
at-the-market price. A retail price that store owners in
the same vicinity generally charge.
bid price. The highest price that a prospective buyer
is willing to pay for a security at a given time. See
SPREAD (2).
call price. 1. The price at which a bond may be retired
before its maturity. [Cases: Corporations C:::;468.1.]
2. See strike price.
ceiling price. 1. The highest price at which a buyer is
willing to buy. 2. The highest price allowed by a gov
ernment agency or by some other regulatory institu
tion. [Cases: War and National Emergency (::::> 108.]
closing price. The price of a security at the end of a
given trading day. -Also termed close.
exercise price. See strike price.
ex-works price. The price of goods as they leave the
factory. See EX WORKS.
fixed price. A price that is agreed upon by a wholesaler
and a retailer for the later sale or resale of an item. _ Agreements to fix prices are generally prohibited by
state and federal statutes.
floor price. The lowest price at which a seller is willing
to sell.
liquidating price. See redemption price.
liquidation price. A price that is paid for property sold
to liquidate a debt. -Liquidation price is usu. below
market price. -Also termed liquidation value.
list price. A published or advertised price of goods;
retail price.
market price. The prevailing price at which something
is sold in a specific market. See fair market value
under VALUE (2).
mean trading price. Securities. The average ofthe daily
trading price ofa security determined at the close of
the market each day during a 90-day period.
netprice. The price ofsomething, after deducting cash
discounts.
offering price. See asking price.
open price. The price for a sale, esp. of goods, that has
not been settled at the time ofa sale's conclusion. UCC
 2-305. Cf. agreed price. [Cases: Sales (::::>78.]
predatory price. See PREDATORY PRICING.
putprice. See strike price.
redemption price. 1. The price of a bond that has not
reached maturity, purchased at the issuer's option. 2.
The price ofshares when a mutual-fund shareholder
sells shares back to the fund. -Also termed liqui
dating price; repurchase price. [Cases: Corporations
(::::>468.1.]
reserve price. In an auction, the amount that a seller of
goods stipulates as the lowest acceptable offer. -The
reserve price mayor may not be announced. See WITH
RESERVE; WITHOUT RESERVE.
sales price. The total amount for which property is sold,
often including the costs ofany services that are a part
of the sale. -Under sales-tax statutes, the amount
is typically valued in money even if the value is not
received in money. Also termed selling price.
spot price. The amount for which a commodity is sold
in a spot market.
strike price. Securities. The price for which a security
will be bought or sold under an option contract if
the option is exercised. -Also termed striking price;
exercise price; call price; put price. See OPTION.
subscription price. See SUBSCRIPTION PRICE.
suggested retail price. The sales price recommended to
a retailer by a manufacturer of the product.
support price. A minimum price set by the federal
government for a particular agricultural commod
ity. [Cases: Agriculture (::::>3.5.J
target price. A price set by the federal government for
particular agricultural commodities. -Ifthe market
price falls below the target price, farmers receive a

subsidy from the government for the difference.
[Cases: Agriculture (;::::>3.5.]
trade price. The price at which a manufacturer or
wholesaler sells to others in the same business or
industry.
transfer price. The price charged by one segment of
an organization for a product or service supplied to
another segment of the same organization; esp., the
charge assigned to an exchange ofgoods or services
between a corporation's organizational units.
unit price. A price of a food product expressed in a
well-known measure such as ounces or pounds.
upset price. The lowest amount that a seller is willing to
accept for property or goods sold at auction. [Cases:
Auctions and Auctioneers
wholesale price. The price that a retailer pays for goods
purchased (usu. in bulk) from a wholesaler for resale
to consumers at a higher price.
price amendment. Securities. A change in a registration
statement, prospectus, or prospectus supplement affect
ing the offering price, the underwriting and selling dis
counts or commissions, the amount of proceeds, the
conversion rates, the call prices, or some other matter
relating to the offering price.
price!cost analysis. A technique of determining, for anti
trust purposes, whether predatory pricing has occurred
by examining the relationship between a defendant's
prices and either its average variable cost or its average
total cost.
price discrimination. (1915) The practice of offering
identical or similar goods to different buyers at differ
ent prices when the costs of producing the goods are
the same. Price discrimination can violate antitrust
laws if it reduces competition. It may be either direct,
as when a seller charges different prices to different
buyers, or indirect, as when a seller offers special con
cessions (such as favorable credit terms) to some but
not all buyers. [Cases; Antitrust and Trade Regulation
(;::::>,839.J
persistent price discrimination. A monopolist's sys
tematic policy ofobtaining different rates of return
from different sales groupings.
price-earnings ratio. The ratio between a stock's current
share price and the corporation's earnings per share
for the last year . Some investors avoid stocks with
high price-earnings ratios because those stocks may
be overpriced. -Abbr. PIE ratio. Cf. earnings yield
under YIELD.
price-erosion theory. Patents. A theory oflost-profits
remedy that measures the difference between what an
item could have sold for with patent protection and
what it actually sold for while having to compete against
an infringing item. [Cases: Patents (;::::>318(3).]
price expectancy. See EXHIBITION VALUE.
price-fixing. (l889) The artificial setting or maintenance
of prices at a certain level, contrary to the workings under antitrust law. See FIX (3). [Cases: Antitrust and
Trade Regulation (;::::>821.]
"Price-fixing agreements mayor may not be aimed at
complete elimination of price competition. The group
making those agreements mayor may not have the power
to control the market. But the fact that the group cannot
control the market prices does not necessarily mean that
the agreement as to prices has no utility to the members
of the combination. The effectiveness of price-fixing agree
ments is dependent on many factors, such as competitive
tactics, pOSition in the industry, the formula underlying
price policies. Whatever economic justification particular
price-fixing agreements may be thought to have, the law
does not permit an inquiry into their reasonableness. They
are all banned because oftheir actual or potential threat to
the central nervous system of the economy." United States
v. Socony-Vawum Oil Co., 310 U.S. 150,225-26 n.59, 60
5.Ct. 811, 845 n.59 (1940).
horizontal price-fixing. (1935) Price-fixing among
competitors on the same level, such as retailers
throughout an industry. [Cases: Antitrust and Trade
Regulation (;;::;822.]
vertical price-fixing. (1936) Price-fixing among parties
in the same chain ofdistribution, such as manufac
turers and retailers attempting to control an item's
resale price. [Cases: Antitrust and Trade Regulation
C:>821.]
price index. An index ofaverage prices as a percentage
of the average prevailing at some other time (such as
a base year). See CONSUMER PRICE INDEX; PRODUCER
PRICE INDEX.
price leadership. (1942) A market condition in which
an industry leader establishes a price that others in the
field adopt as their own . Price leadership alone does
not violate antitrust laws without other evidence ofan
intent to create a monopoly.
price-level-adjusted mortgage. See MORTGAGE.
price memorandum. Securities. A document created by
an underwriter to explain how securities are priced for
a public offering and, typically, to show estimates and
appraisals that are not allowed as part of the offering
documents.
price-renegotiation clause. Oil 6-gas. A provision in a
gas contract allowing for price renegotiation from time
to time or upon election of one of the parties.
price squeeze. Antitrust. Discriminatory pricing prac
ticed by a manufacturer or distributor who also supplies
materials or products to a competitor, and charges a
high wholesale price in an attempt to reduce or elimi
nate a competitor's ability to make a retail profit. [Cases:
Antitrust and Trade Regulation (;::::>8l1.]
price support. (1927) The artificial maintenance of prices
(as of a particular commodity) at a certain level, esp.
by governmental action (as by subsidy). [Cases; Agri
culture (;::::>3.5.]
price war. (1895) A period of sustained or repeated
price-cutting in an industry (esp. among retailers),
deSigned to undersell competitors or force them out
ofbusiness.
of the free market.  Price-fixing is usu. illegal per se i priest-penitent privilege. See PRIVILEGE (3).

primae impressionis (pn-mee im-pres[b)-ee-oh-nis).
[Law Latin) Of the first impression. See case offirst
impression under CASE.
primae preces. See PRECES PRIMARIAE.
prima facie (pn-ma fay-sha orfay-shee), adv. [Latin] (l5c)
At first sight; on first appearance but subject to further
evidence or information <the is prima facie
valid>. [Cases: Evidence 584(1).]


to further
evidence or information <the is prima facie
valid>. [Cases: Evidence 584(1).]
prima fade, adj. (18c) Sufficient to establish a fact or
raise a presumption unless disproved or rebutted <a
prima facie showing>.
prima fade case. (1805) I. The establishment ofa legally
required rebuttable presumption. [Cases: Evidence (;::=,
53,85.) 2. A party's production of enough evidence to
allow the fact-trier to infer the fact at issue and rule in
the party's favor. [Cases: Evidence (;;:)584(1).)
prima fade evidence. See EVIDENCE.
prima fade presumption. See rebuttable presumption
under PRES{;MPTION.
prima fade privilege. See qualified immunity under
IMMlJNITY (1).
prima fade tort. See TORT.
primage (pn-mij). See HAT MONEY.
primary, n. See primary election under ELECTION (3).
primary activity. Labor law. Concerted action (such
as a strike or picketing) directed against an employer
with which a union has a dispute. Cf. SECONDARY
ACTIVITY.
primary agent. See AGENT (2).
primary allegation. See ALLEGATION.
primary amendment. See AMENDMENT (3).
primary assumption of the risk. See ASSUMPTION OF
THE RISK.
primary authority. See AUTHORITY (4).
primary beneficiary. See BENEFICIARY.
primary boycott. See BOYCOTT.
primary caregiver. Family law. 1. The parent who has
had the greatest responsibility for the daily care and
rearing of a child. See TENDER-YEARS DOCTRINE; PRI
MARY-CAREGIVER DOCTRINE. [Cases: Child Custody
G---= 44, 459.] 2. The person (induding a nonparent) who
has had the greatest responsibility for the daily care and
rearing of a child. Also termed primary caretaker.
primary-caregiver doctrine. Family law. 1he presump
tion that, in a custody dispute, the parent who is a child's
main caregiver will be the child's custodian, assuming
that he or she is a fit parent.  This doctrine includes
the quality and the quantity ofcare that a parent gives
a child -but excludes supervisory care by others while
the child is in the parent's custody. Under this doctrine,
courts sometimes divide children into three age groups:
those under the age of 6, those 6 to 14, and those 14
and older. For children under the age of6, an absolute
presumption exists in favor of the primary caretaker as custodian. For those 6 to 14, the trial court may
hear the child's preference on the record but without
the parents being present. For those 14 and older, the
child may be allowed to choose which parent will be the
custodian, assuming that both parents are fit. Also
termed primary-caretaker doctrine; primary-caregiver
presumption; primary-caretaker presumption; primary
caregiver preference. Cf. MATERN AL-PREFERENCE PRE
SUMPTION; TENDER-YEARS DOCTRINE. [Cases: Child
Custody (;::='44,459.]
primary caretaker. See PRIMARY CAREGIVER.
primary cause. See proximate cause under CAUSE (1).
primary committee. Bankruptcy. A group of creditors
organized to help the debtor draw up a reorganization
plan. [Cases: BankruptcyC:~)3024.]
primary conveyance. See CONVEYANCE.
primary devise. See DEVISE.
primary domiciliary parent. See PARENT.
primary-duty doctrine. Maritime law. The principle that
a seaman cannot recover damages if the injury arose
from an unseaworthy condition created by the seaman's
breach of duty. [Cases: Seamen (;::=,29(4).]
primary election. See ELECTION (3).
primary evidence. See best evidence under EVIDENCE.
primary fact. See FACT.
primary insurance. See INSURANCE.
primary insured. See INSURED.
primary insurer. See INSURER.
primary jurisdiction. See JURISDICTION.
primary-jurisdiction doctrine. A judicial doctrine
whereby a court tends to favor allowing an agency an
initial opportunity to decide an issue in a case in which
the court and the agency have concurrent jurisdiction.
See primary jurisdiction under JURISDICTION. [Cases:
Administrative Law and Procedure (;::=,228.1.]
primary lease. See HEADLEASE.
primary liability. See LIABILITY.
primary-line competition. See horizontal competition
under COMPETITION.
primary-line injury. Antitrust. Under the price-dis
crimination provisions of the Robinson-Patman Act,
the practice of charging below-cost, predatory prices
in an attempt to eliminate the seller's competition in
the market. 15 USCA  13(a). A primary-line injury,
which hinders or seeks to hinder competition among
the seller's competitors, is distinguishable from a sec
ondary-line injury, which refers to discriminatory
pricing that hinders or seeks to hinder competition
among the seller's customers, by favoring one customer
over another in the prices the seller charges. Cf. SEC
ONDARY-LINE INJURY.
"liggett contends that Brown & Williamson's discriminatory
volume rebates to wholesalers threatened substantial com
petitive injury by furthering a predatory pricing scheme
designed to purge competition from the economy segment

1311 primogenitureship
of the cigarette market. This type of injury, which harms
direct competitors of the discriminating seller, is known
as a primary-line injury." Brooke Group Ltd. v. Brown & Wil
liamson Tobacco Corp., 509 u.s. 209, 220, 113 S.Ct. 2578,
2586 (1993).
primary market. See MARKET.
primary mortgage market. See MORTGAGE MARKET.
primary obligation. See OBLIGATION.
primary offering. See OFFERING.
primary officer. See principal officer under OFFICER
(1).
primary plea. See primary allegation under ALLEGA
TION.
primary powers. (1864) The chief powers given by a prin
cipal to an agent to accomplish the agent's tasks. Cf.
MEDIATE POWERS.
primary purpose or effect. Copyright. The main reason
for or consequence of using a product, as a test for
whether its sale amounts to contributory infringement.
-The Supreme Court rejected the test in a landmark
copyright case, but four justices said that ifthe primary
purpose or effect ofthe product's sale or use infringes
the copyrights of others, its manufacturer could be
enjoined from selling the product or required to pay
a reasonable royalty to the copyright owners. Sony
Corp. ofAm. v. Universal City Studios, Inc., 464 U.S.
417,457-500, 104 S.Ct. 774, 796-818 (1984) (Blackmun,
J., dissenting). Cf. COMMERCIALLY SIGNIFICANT NON
INFRINGING USE.
primary receiver. See principal receiver under
RECEIVER.
primary reserve ratio. See RESERVE RATIO.
primary residential responsibility. See RESIDENTIAL
RESPONSIBILITY.
primary right. See RIGHT.
primary term. Oil & gas. The option period set by
the habendum clause in an oil-and-gas lease during
which the lessee has the right to search, develop, and
produce from the property. _ The primary term should
be long enough to allow the lessee to evaluate the
property and make arrangements to drill. In practice,
the primary term may extend for 24 hours or 25 years,
depending on how much competition there is for leases
in the area. See HABENDUM CLAUSE. Cf. SECONDARY
TERM. [Cases: Mines and Minerals (;;:>73.5,78.1(9).]
primate (prJ-mit). A chief ecclesiastic; an archbishop or
bishop having jurisdiction over other bishops within
a province.
prime, n. See prime rate under INTEREST RATE.
prime, vb. To take priority over <Watson's preferred
mortgage primed Moriarty's lien>.
prime contractor. See general contractor under CON
TRACTOR.
prime cost. See COST (1). prime lending rate. See prime rate under INTEREST
RATE.
prime maker. See MAKER.
prime minister. (often cap.) The chiefexecutive ofa par
liamentary government; the head ofa cabinet. -Abbr.
PM.
primer (prim-Jr orprJ-mJr). [Law French] First; primary
<primer seisin>.
prime rate. See INTEREST RATE.
primer election. A first choice; esp., the eldest copar
cener's pick of land on division of the estate. See
ELECTION.
primer fine (prim-;>r or prJ-mJr fm). [Latin] Hist. A
fee payable to the Crown on the suing out of a writ of
praecipe to begin a conveyance by fine. See FINE (1).
Also termed praefine.
primer seisin. See SEISIN.
prime serjeant. See premier serjeant under SERJEANT
AT-LAW.
prime tenant. See TENANT.
primitiae (pri-mish-ee-ee). [fro Latin primus "first"] See
FIRST FRl7ITS (2). -primitial (pri-mish-;>l), adj.
primitive obligation. See OBLIGATION.
primo fronte (prJ-moh fron-tee). [Latin] Hist. At first
Sight.
primogeniture (pn-mJ-jen-J-chJr). (I5c) 1. The state
of being the firstborn child among siblings. 2. The
common-law right ofthe firstborn son to inherit his
ancestor's estate, usu. to the exclusion of younger
siblings. -Also termed (in sense 2) primogenitureship.
See BOROUGH ENGLISH. [Cases: Descent and Distribu
tion
"If by primogeniture we only mean 'that the male issue
shall be admitted before the female, and that, when there
are two or more males in equal degrees, the eldest only
shall inherit, but the females "all together'" [Blackstone's
definitionl. then ancient records may indeed contain but
scant references. But primogeniture embraces all the cases
of single inheritance, and may indeed be defined as the
prerogative enjoyed by an eldest son or occasionally an
eldest daughter, through law or custom, to succeed to their
ancestor's inheritance in preference to younger children.
Nay, we might even make it more comprehensive, extend
ing it to all cases of single succession depending upon
priority in birth." Radhabinod Pal, The History of the Law
ofPrimogeniture 11 (1929).
"We might note here, parenthetically, that the English pref
erence for single-file male descent that is, the system
of descent known as primogeniture was never cordially
received in this country. Our statutes of descent and distri
bution uniformly provide for sons' and daughters' sharing
the inheritance equally. Although this seems a fairer
method than primogeniture, which was finally abolished
in Britain with the 1925 reforms. the descent of property
to an ever-expanding group of heirs can seriously compli
cate the clearing of old titles." Thomas F. Bergin &Paul G.
Haskell, Preface to Estates in Land and Future Interests 9
(2d ed_ 1984).
primogenitnreship. See PRIMOGENITURE (2).

1312 prim%co
primo loco (prJ-moh loh-koh). [Latin] Hist. In the first
place.
primo venienti (prJ-moh ven-ee-en-tr). [Latin] To the
one first coming . This refers to the former practice by
estate executors ofpaying debts as they were presented
without regard to whether the estate had enough assets
to pay all the debts.
primum decretum (prI-m;lm di-kree-t;lm). [Latin "first
decree"] 1. Hist. Eccles. law. A preliminary decree
granted in favor of the plaintiff on the nonappearance
ofa defendant. 2. Maritime law. A provisional decree.
princeps (prin-seps), n. [Latin] Roman law. A leading
person, esp. the emperor.
principal, adj. Chief; primary; most important.
principal, n. (14c) 1. One who authorizes another to act
on his or her behalf as an agent. Cf. AGENT (2). [Cases:
Principal and Agent <>1, 130.]
apparent principal. A person who, by outward mani
festations, has made it reasonably appear to a third
person that another is authorized to act as the person's
agent. [Cases: Principal and Agent <>99.]
disclosed principal. (1858) A principal whose identity
is revealed by the agent to a third party. A disclosed
principal is always liable on a contract entered into
by the agent with the principal's authority, but the
agent is usu. not liable. [Cases: Principal and Agent
<>92-137.]
partially disclosed principal. (1934) A principal whose
existence -but not actual identity -is revealed by
the agent to a third party. [Cases: Principal and Agent
<>138-146.]
undisclosed principal. (1835) A principal whose
identity is kept secret by the agent; a principal for
whom the other party has no notice that the agent
is acting. An undisclosed principal and the agent
are both liable on a contract entered into by the agent
with the principal's authority. [Cases: Principal and
Agent <>138-146.]
2. One who commits or participates in a crime. Cf.
ACCESSORY (2); ACCOMPLICE (2). [Cases: Criminal Law
<>59-67.]
"The student should notice that in criminal law the word
'principal' suggests the very converse of the idea which
it represents in mercantile law. In the former, as we have
seen, an accessory proposes an act,


the idea which
it represents in mercantile law. In the former, as we have
seen, an accessory proposes an act, and the 'principal'
carries it out. But in the law of contract, and in that of
tort, the 'principal' only authorizes an act, and the 'agent'
carries it out. Where the same transaction is both a tort and
a crime, this double use of the word may cause confusion.
For example, if, by an innkeeper's directions, his chamber
maid steals jewels out of a guest's portmanteau, the maid
is the 'principal' in a crime, wherein her master is an acces
sory before the fact; whilst she is also the agent in a tort,
wherein her master is the 'principal'." J.w. Cecil Turner,
Kenny's Outlines ofCriminal Law 89 (16th ed. 1952).
principal in the first degree. (18c) The perpetrator ofa
crime. -Also termed first-degree principal. [Cases:
Criminal Law <>61, 78.]
"By a principal in the first degree, we mean the actual
offender -the man in whose guilty mind lay the latest blamable mental cause of the criminal act. Almost always,
of course, he will be the man by whom this act itself was
done. But occasionally this will not be so; for the felony
may have been committed by the hand of an innocent
agent who, having no blamable intentions in what he did,
incurred no criminal liability by doing it. In such a case the
man who instigates this agent is the real offender; his was
the last mens rea that preceded the crime, though it did
not cause it immediately but mediately." J.w. Cecil Turner,
Kenny's Outlines ofCriminal Law 85-86 (16th ed. 1952).
principal in the second degree. (18c) One who helped
the perpetrator at the time of the crime. -Also
termed accessory at the fact; second-degree principal.
See ABETTOR. [Cases: Criminal Law <>63, 78.]
''The distinction between principals in the first and second
degrees is a distinction without a difference except in those
rare instances in which some unusual statute has provided
a different penalty for one of these than for the other. A
principal in the first degree is the immediate perpetrator
of the crime while a principal in the second degree is one
who did not commit the crime with his own hands but was
present and abetting the principal. It may be added, in the
words of Mr.Justice Miller, that one may perpetrate a crime,
not only with his own hands, but 'through the agency of
mechanical or chemical means, as by instruments, poison
or powder, or by an animal, child, or other innocent agent'
acting under his direction." Rollin M. Perkins & Ronald N.
Boyce, Criminal Law 736 (3d ed. 1982) (quoting Beausoliel
v. United States, 107 F.2d 292, 297 (D.C. Cir. 1939)).
3. One who has primary responsibility on an obligation,
as opposed to a surety or indorser. 4. The corpus ofan
estate or trust. [Cases: Trusts <>1.]5. The amount ofa
debt, investment, or other fund, not including interest,
earnings, or profits.
principal action. See main demand under DEMAND (1).
principal challenge. See CHALLENGE (2).
principal contract. See CONTRACT.
principal covenant. See COVENANT (1).
principal creditor. See CREDITOR.
principal demand. See main demand under DEMAND
(1).
principal fact. 1. See fact in issue under FACT. 2. See
ultimate fact under FACT.
principal in the first degree. See PRINCIPAL (2).
principal in the second degree. See PRINCIPAL (2).
principalis (prin-s;l-pay-lis), adj. [Latin] Principal, as in
principalis debitor ("principal debtor").
principal motion. See main motion under MOTION (2).
principal obligation. See primary obligation (2) under
OBLIGATION.
principal obligor. See OBLIGOR.
principal officer. See OFFICER (1).
principal place ofbusiness. See PLACE OF BUSINESS.
principal receiver. See RECEIVER.
Principal Register. Trademarks. The list of distinctive
marks approved for federal trademark registration.
 The register is maintained by the U.S. Patent and
Trademark Office. Only marks that are strong, dis
tinctive, and famous are listed. 15 USCA  1052. Cf.

1313 prior lien
SUPPLEMENTAL REGISTER. [Cases: Trademarks
1245.]
principal right. See RIGHT.
principle, n. A basic rule, law, or doctrine.
principle offinality. See FINALITY DOCTRINE.
principle oflegality. See LEGALITY (2).
principle of nonintervention. See NONINTERVENTION.
principle of retribution. See LEX TALIONIS.
print. 1. Copyright. The impression made in a material
by a die, mold, stamp, or the like; a distinctive stamped
or printed mark or design. 2. FINGERPRINT.
printed-matter doctrine. Patents. The rule that printed
matter may not be patented unless it is a physical part of
a patentable invention . For example, the doctrine has
been used to deny patents for systems of representing
sheet music and for methods ofcompiling directories.
But it cannot be used to deny a patent for computer
software. [Cases: Patents G~5.]
Printers Ink Statute. A model statute drafted in 1911
and adopted in a number of states making it a misde
meanor to print an advertisement that contains a false
or deceptive statement.
prior, adj. (17c) 1. Preceding in time or order <under
this court's prior order>. 2. Taking precedence <a prior
lien>.
prior, n. (1919) Criminal law. Slang. A previous convic
tion <because the defendant had two priors, the judge
automatically enhanced his sentence>.
prior-acts coverage. Insurance. A claims-made profes
sional-liability policy indorsement that makes the effec
tive date retroactive and extends the policy's protection
to claims made and lawsuits filed during the policy
period for negligent acts that occurred before the policy
was actually purchased. -Also termed nose coverage.
Cf. TAIL COVERAGE. [Cases: Insurance (:::::)2266.)
prior and persistent offender. See RECIDIVIST.
prior-appropriation doctrine. (1959) The rule that,
among the persons whose properties border on a
waterway, the earliest users ofthe water have the right
to take a'n they can use before anyone else has a right
to it. Cf. RIPARIAN-RIGHTS DOCTRINE. [Cases: Waters
and Water Courses (:::::) 140.]
prior art. See ART.
prior-claim rule. The principle that before suing for a
tax refund or abatement, a taxpayer must first assert the
claim to the Internal Revenue Service. [Cases: Internal
Revenue (;::;:>5003.]
prior consistent statement. See STATEMENT.
prior creditor. See CREDITOR.
prior-exclusive-jurisdiction doctrine. The rule that a
court will not assume in rem jurisdiction over property
that is already under the jurisdiction ofanother court
ofconcurrent jurisdiction.
prior inconsistent statement. See STATEMENT. priori petenti (pn-or-I p<l-ten-tI). [Latin "to the first
person applying"] Wills & estates. The principle that
when two or more persons are equally entitled to
administer an estate, the court will appoint the person
who applies first.
priority. (15c) 1. The status of being earlier in time or
higher in degree or rank; precedence. 2. Commercial
law. An established right to such precedence; esp., a
creditor's right to have a claim paid before other credi
tors of the same debtor receive payment. [Cases: Secured
Transactions 138-145.] 3. The doctrine that, as
between two courts, jurisdiction should be accorded
the court in which pr~ceedings are first begun. [Cases:
Courts 493,514; Federal Courts C-=1145.] 4.
Patents & Trademarks. The status ofbeing first to invent
something (and therefore be potentially eligible for
patent protection)or to use a mark in trade (and there
fore be potentially eligible for trademark registration).
[Cases: Patents (;::;:>90; Trademarks (;::;:> 1137)
priority ofadoption. Trademarks. Priority in designing
or creating a trademark . Priority of adoption does
not in itself confer the right to exclusive use ofa mark
ifsomeone else was first to use it in commerce. -Also
termed priority ofappropriation; priority ofinvention.
Cf. priority ofuse. [Cases: Trademarks <r'= 1131.)
priority ofappropriation. Trademarks. See priority of
adoption.
priority ofinvention. 1. Patents. The determination
that one among several patent applications, for sub
stantially the same invention, should receive the
patent when the U.S. Patent and Trademark Office has
declared interference . This determination depends
on the date of conception, the date of reduction to
practice, and diligence. [Cases: Patents (;::;:>90, 106.]
2. Trademarks. See priority ofadoption.
priority ofuse. Trademarks. Priority in using a mark
in actual commerce. The priority of use, not the
priority of adoption, determines who has the right
to protection. Cf. priority ofadoption. [Cases: Trade
marks G)1137.J
priority award. Patents. A final judgment by the U.S.
Patent and Trademark Office designating one party in
an interference contest as the first inventor. -Also
termed award in interference.
priority claim. See CLAIM (5).
priority contest. See INTERFERENCE (3).
priority date. See DATE.
priority-jurisdiction rule. See FIRST-TO-FILE RULE.
priority lien. See prior lien under LIEN.
priority of liens. The ranking of liens in the order in
which they are perfected.
prior laesit (prI-<lr lee-sit). [Law Latin] Scots law. He
(or she) first injured . The phrase usu. referred to the
provocation for an assault.
prior lien. See LIEN.

1314 prior petens
prior petens (prI-dr pet-enz). [Latin] The person first
applying.
prior preferred stock. See STOCK.
prior publication. Patents. Public disclosure ofthe basis
for or existence of an invention, made before filing a
patent application for the invention. _ Ifthe publica
tion was made more than a year before the applica
tion is filed, the patent is barred by statute. Publication
occurs when the information is made available to any
member of the general public. See limited publication
under PUBLICATION. [Cases: PatentsC=67.]
prior-relationship rape. See relationship rape under
RAPE.
prior restraint. (1833) A governmental restriction on
speech or publication before its actual expression.
Prior restraints violate the First Amendment unless
the speech is obscene, is defamatory, or creates a clear
and present danger to society. [Cases: Constitutional
Law C=1525.]
'The legal doctrine of prior restraint (or formal censor
ship before publication) is probably the oldest form of
press control. Certainly it is one of the most effiCient,
since one censor, working in the watershed, can create a
drought of information and ideas long before they reach
the fertile plain of people's minds. In the United States,
the doctrine of prior restraint has been firmly opposed
by the First Amendment to the Constitution, and by the
Supreme Court, perhaps most notably in the case of Near
v. Minnesota, decided in 1931. But the philosophy behind
that doctrine lives zestfully on, and shows no signs of infir
mities of age." David G. Clark & Earl R. Hutchinson, Mass
Media and the Law II (1970).
prior sale. Patents. Sale or offer of sale of an invention
before a patent is applied for. -Ifthe sale occurred
more than one year before the application is filed, the
patent is barred by statute. 35 USCA  102(b). [Cases:
Patents
prior sentence. See SENTENCE.
prior-use bar. See PUBLIC-USE BAR.
prior-use doctrine. (1856) The principle that, without
legislative authorization, a government agency may not
appropriate property already devoted to a public use.
[Cases: Eminent Domain c...~47.1
prior-user right. Patents. The right of a first inventor
to continue using an invention after someone else has
patented it.  This right protects first inventors in most
countries from the harsh effects ofa first-to-file system.
[Cases: Patents ~-:>90(1).1
prisage (prJ-zij). Hist. A royal duty on wine imported
into England. -Prisage was replaced by butlerage in
the reign of Edward I. Cf. BUTLERAGE.
prise1en auter lieu (prI-z;l1 awn oh-tayl-yoo). [Law
French "a taking in another place"] A plea in abate
ment in a replevin action.
prison. (bef. 12c) A state or federal facility of confine
ment for convicted criminals, esp. felons. -Also
termed penitentiary; penal institution; adult correc
tional institution. Cf. JAIL. [Cases: Prisons ~::>213.J private prison. (1865) A prison that is managed by
a private company, not by a governmental agency.
[Cases: Prisons C= 12.]
prison breach. (17c) A prisoner's forcible breaking and
departure from a place of lawful confinement; the
off