ofits case to a neutral
third party and to the opponent's representatives, who
have settlement authority. _ The third party may render
an advisory opinion on the anticipated outcome ofliti
gation. Cf. summary jury trial under TRIAL.
'The idea behind the minitrial is that the parties can resolve
a dispute on their own more efficiently if litigant repre
sentatives with settling authority are educated about the
strengths and weaknesses of each side, giving summary
presentations of their best cases under the eye of ajointly
selected neutral advisor. After each case is presented,
the parties meet privately to negotiate an agreement.
The minitrial is confidential and nonbinding. Usually, no
transcript is made of the proceeding. Minitrials have had
some success in saving both time and money." Alfred C.
Aman Jr, & William T. Mayton, Administrative Law 291 (2d
ed,2001),
minor, n. (16c) 1. A person who has not reached full
legal age; a child or juvenile. Also termed infant. Cf.
ADULT. [Cases: Infants
emancipated minor. (1817) A minor who is self-sup
porting and independent ofparental control, usu. as
a result of a court order. See EMANCIPATION. [Cases:
Child Support Parent and Child C=>16.]
minor in need ofsupervision. See child in need ofsuper
vision under CHILD. Abbr. MINS.
2. Roman law. A person who is past puberty but less
than 25 years old. Also termed minor quam 25
annis.
minor aetas (mI-n;)r ee-tas). [Latin] Hist. Lesser age;
minority; infancy.
minora regalia (mi-nor-;) ri-gay-lee-;)). See regalia
minora under REGALIA.
minor crime. See MISDEMEANOR.
minor dispute. See DISPUTE.
minor fact. See FACT.
minority. (I5c) 1. The state or condition ofbeing under
legal age . In Scots law, legal minority begins at the
end ofpuberty; until then, a person is a pupil. Also
termed infancy; nonage; immaturity. Cf. MAJORITY (1).
[Cases: Infants C=> 1.] 2. A group having fewer than a
controlling number ofvotes. Cf. MAJORITY (2). [Cases:
Corporations 3. A group that is different in
some respect (such as race or religious belief) from the
majority and that is sometimes treated differently as a
result; a member of such a group . Some courts have
held that the term minority, in this sense, is not limited
to a group that is outnumbered. It may also be applied
to a group that has been traditionally discriminated
against or SOcially suppressed, even if its members
are in the numerical majority in an area. [Cases: Civil
Rights C=>1007.]
Minority Business Development Agency. A unit in the
U.S. Department ofCommerce responsible for develop
ing and coordinating a national program for minority
business enterprise. -Abbr. MBDA.
minority discount. A reduction in the value ofa closely
held business's shares that are owned by someone who
has only a minority interest in the business. _ The

1087
concept underlying a minority discount is recogni
tion that controlling shares -those owned by someone
who can control the business -are worth more in the
market than noncontrolling shares. But when dis
senting shareholders object to a corporate act, such
as a merger, and become entitled to have their shares
appraised and bought by the corporation, many courts
hold that incorporating a minority discount into the
valuation ofthe dissenters' shares is inequitable and is
not permitted. See APPRAISAL REMEDY. [Cases: Corpo
rations 182.4(5),584.]
minority opinion. See dissenting opinion under OPINION
(1).
minority report. See REPORT (1).
minority shareholder. See SHAREHOLDER.
minor participant. (1960) Criminal law. Under the
federal sentencing guidelines, a defendant who is less
culpable for a crime than the other members of the
group committing the crime, but who has more culpa
bility than a minimal participant.  A defendant who
is a minor participant can have the offense level for the
crime decreased by two levels. U.S. Sentencing Guide
lines Manual  3B1.2(b). Cf. MINIMAL PARTICIPANT.
[Cases: Sentencing and Punishment ~~764.]
minor quam 25 annis (mI-n<lf kwam 25 an-is). [Latin].
See MINOR (2).
minor's estate. See ESTATE (1).
minor's trust. See 2503(c) trust under TRUST.
MINS. abbr. Minor in need ofsupervision. See child in
need ofsupervision under CHILD.
mint, n. (I5c) 1. A government-authorized place for
coining money. [Cases: United States 2. A large
supply, esp. of money.
mintage. (16c) 1. The mint's charge for coining money.
2. The product of minting; money.
mint-mark. An authorized mark on a coin showing
where it was minted.
minuend (min-yoo-end). (18c) In a mathematical
equation, the number from which another number
(the subtrahend) is subtracted to arrive at a remainder
or balance . The term is used in law in a variety of
accounting and mathematical contexts. Cf. SUBTRA
HEND.
minus (ml-n<ls), adj. &adv. [Latin] Roman law. Less; less
than; not at all . A debt remaining wholly unpaid was
called minus solutum.
minus Latium. See LATIUM MINUS.
minute book. (16c) 1. A book in which a court clerk
enters minutes ofcourt proceedings. [Cases: Clerks of
Courts C::::>67.] 2. A record of the subjects discussed
and actions taken at a corporate directors' or share
holders'meeting. Also termed minutes book.
minute entry. See minute order (1) under ORDER (2).
minute order. See ORDER (2). Mirandize
minutes. (15c) 1. Memoranda or notes of a transac
tion, proceeding, or meeting. 2. Parliamentary law.
Ine formal record of a deliberative assembly's pro
ceedings, approved (as corrected, if necessary) by the
assembly. -Also termed journal; record; report. See
DISPENSE WITH THE READING OF THE MINUTES; SPREAD
UPON THE MINUTES.
'The minutes of an organization include a record of all
official actions taken, the presiding officer, the presence
of a quorum, and information showing that the meeting
was duly called and thus legal. The other contents of the
minutes will depend upon the degree of detail desired ....
The minutes should be an official record of actions taken
by the organization, not a transcript of what indiViduals
say in meetings." Ray E. Keesey, Modern Parliamentary
Procedure 84 (1994).
"The record of the proceedings of a deliberative assembly
is usually called the minutes, or sometimes particularly
in legislative bodies the journal. In an ordinary society,
unless the minutes are to be published, they should contain
mainly a record of what was done at the meeting, not
what was said by the members. The minutes should never
reflect the secretary's opinion, favorable or otherwise, on
anything said or done." Henry M. Robert, Robert's Rules of
Order Newly Revised  48. at 451 (10th ed. 2000),
3. Scots law. Written forms for preserving evidence.
"When it is necessary to preserve evidence of any inciden
tal judicial act or statement, this is done in the Court of
Session, and also in the inferior courts, by a minute. Thus,
where the pursuer restricts his libel, or makes a reference
to the defender's oath ... this is done by a minute. Strictly
speaking, those minutes ought to be prepared by the clerk
of court, as their form imports. They commence with the
name of the counsel ... and purport to be a statement
made by him ...." William Bell, Bell's Dictionary and Digest
of the Law of Scotland 721 (George Watson ed., 7th ed.
1890).
minutes book. See MINUTE BOOK.
minutio (mi-n[y]oo-shee-oh), n. [Latin] Roman law. A
lessening or reduction. See DEMfNUTlO.
Miranda hearing (md-ran-d<l). (1966) A pretrial pro
ceeding held to determine whether the Miranda rule
has been followed and thus whether the prosecutor may
introduce into evidence the defendant's statements to
the police made after arrest. See MIRANDA RULE. [Cases:
Criminal Law~414.1
Miranda rule. (1966) The doctrine that a criminal
suspect in police custody must be informed ofcertain
constitutional rights before being interrogated. _ The
suspect must be advised of the right to remain silent,
the right to have an attorney present during question
ing, and the right to have an attorney appointed ifthe
suspect cannot afford one. Ifthe suspect is not advised
of these rights or does not validly waive them, any
eyidence obtained during the interrogation cannot be
used against the suspect at trial (except for impeach
ment purposes). Miranda v. Arizona, 384 U.S. 436, 86
S.Ct. 1602 (1966). [Cases: Criminal Law ~412.2(3),
517.2(3),518.]
Miranda warning. See MIRANDA RULE.
Mirandize (m;:l-ran-drz), vb. (1971) Slang. To read
or recite (to an arrestee) rights under the lvIiranda
rule <the suspect was arrested, Mirandized, and

1088 mirror-image rule
interrogated>. See MIRANDA RULE. [Cases: Criminal
Law P412.2(3), 517.2(3), 518.J
mirror-image rule. (1972) Contracts. The doctrine that
the acceptance ofa contractual offer must be positive,
unconditional, unequivocal, and unambiguous, and
must not change, add to, or qualify the terms of the
offer; the common~law principle that tor a contract to
be formed, the terms of an acceptance must correspond
exactly with those of the offer.  In modern commercial
contexts, the mirror-image rule has been replaced by
a UCC provision that allows parties to enforce their
agreement despite minor discrepancies between the
offer and the acceptance. The rule still applies to inter
national sales contracts governed by the UN Conven~
tion on Contracts for the International Sales ofGoods
(article 19). Also termed ribbon-matching rule. See
BATTLE OF THE FORMS. [Cases: ContractsP24.]
"If an offeree purports to accept an offer but in doing so
adds various conditions and qualifications of his own, is
the acceptance binding on the offeror. at least in part?
Generally speaking. the answer is no: the common law
rule, reflected in Restatement Section 59. is that a state
ment of acceptance is effective only if it is a mirror image
of the offer and expresses unconditional assent to all of
the terms and conditions imposed by the offeror." Marvin
A. Chirelstein, Concepts and Case Analysis in the Law of
Contracts 54 (1990).
misa (nu-za). [Law LatinJ Hist. 1. The issue in a writ of
right; a mise. 2. An agreement; a compromise.
misadministration. See MALADMINISTRATION.
misadventure. (13c) 1. A mishap or misfortune. 2.
Homicide committed accidentally by a person doing a
lawful act and having no intent to injure; ACCIDENTAL
KILLING. [Cases: Homicide P762.]
misallege, vb. To erroneously assert (a fact, a claim,
etc.).
misapplication, n. (l7c) The improper or illegal use of
funds or property lawfully held. -misapply, vb.
misappropriation, n. (I8c) 1. The application ofanoth
er's property or money dishonestly to one's own use.
See EMBEZZLEMENT. Cf. APPROPRIATION; EXPROPRI
ATIO:-l (1). 2. Intellectual property. The common~law
tort ofusing the noncopyrightable information or ideas
that an organization collects and disseminates for a
profit to compete unfairly against that organization,
or copying a work whose creator has not yet claimed
or been granted exclusive rights in the work. Int'l News
Servo V. Associated Press, 248 U.S. 215, 29 S.Ct. 68 (1918).
 The elements ofmisappropriation are: (1) the plaintiff
must have invested time, money, or effort to extract
the information, (2) the defendant must have taken
the information with no similar investment, and (3)
the plaintiff must have suffered a competitive injury
because ofthe taking. [Cases: Copyrights and Intel~
lectual Property C:::> 108.] 3. The doctrine giving rise
to such a tort claim. misappropriate, vb.
'The doctrine of 'misappropriation,' which is a distinct
branch of unfair competition, ... has been applied to
a variety of situations in which the courts have sensed
that one party was dealing 'unfairly' with another, but
which were not covered by the three established statutory systems protecting intellectual property: copyright, patent,
and trademark/deception as to origin." U.S. CoifAss'n v. St.
Andrews Systems, Data-Max, inc. 749 F.2d 1028, 1034-35
(3d Cir. 1984) (Becker, J.).
misappropriation theory. Securities. The doctrine that
a person who wrongfully uses confidential informa~
tion to buy or sell securities in violation ofa duty owed
to the one who is the information source is guilty of
securities fraud. [Cases: Securities Regulation P
60.28(2.1).]
misbehavior in office. See


[Cases: Securities Regulation P
60.28(2.1).]
misbehavior in office. See official misconduct under MIS~
CONDUCT.
misbranding, n. The act or an instance oflabeling one's
product falsely or in a misleading way. _ Misbrand
ing is prohibited by federal and state law. Food
PIS; Health C=>311; Products Liability
misbrand, vb.
miscarriage. (l6c) Spontaneous and involuntary pre
mature expulsion ofa nonviable fetus. Also termed
spontaneous abortion.
criminal miscarriage. Hist. See ABORTION (1).
miscarriage ofjustice. (1862) A grossly unfair outcome
in a judicial proceeding, as when a defendant is con
victed despite a lack ofevidence on an essential element
of the crime. -Also termed failure ofjustice.
miscegenation (mi~sej~a~nay~shan). (1863) A marriage
between persons of different races, formerly consid~
ered illegal in some jurisdictions . In 1967, the U.S.
Supreme Court held that laws banning interracial mar
riages are unconstitutional. Loving V. Virginia, 388 U.S.
1,87 S.Ct. 1817 (1967). But for years, such laws techni
cally remained on the books in some states. The last
remaining state~law ban on interracial marriages was
a provision in the Alabama constitution. The Alabama
legislature voted to repeal the ban, subject to a vote of
the state's citizens, in 1999; the repeal became effective
in 2000. -Also termed mixed interracial
marriage. [Cases: Criminal Law
miscellaneous itemized deduction. See DEDUCTION,
mischarge. (1939) An erroneous jury instruction that
may be grounds for reversing a verdict. Also termed
misdirection.
mischief (mis~chaf). (14c) 1. A condition in which a
person suffers a wrong or is under some hardship, esp.
one that a statute seeks to remove or for which equity
provides a remedy <this legislation seeks to eliminate
the mischief of racially restrictive deed covenants>. 2.
Injury or damage caused by a specific person or thing
<the vandals were convicted ofcriminal mischief>. 3.
The act causing such injury or damage <their mischief
damaged the abbey>.
mischief rule. (1974) In statutory construction, the
doctrine that a statute should be interpreted by first
identifying the problem (or "mischief") that the statute
was designed to remedy and then adopting a construc
tion that will suppress the problem and advance the
remedy. -Also termed rule in Heydon's Case; purpose
approach. Cf. GOLDEN RULE; PLAIN~MEANING RULE;

1089 misdemeanor
EQUITY-OF-THE-STATUTE RULE. [Cases: Statutes
184.]
misconduct (mis-kon-d~kt). (l7c) 1. A dereliction of
duty; unlawful or improper behavior.
affirmative misconduct. (1897) 1. An affirmative act of
misrepresentation or concealment ofa material fact;
intentional wrongful behavior. -Some courts hold
that there must be an ongoing pattern of misrepre
sentation or false promises, as opposed to an isolated
act of providing misinformation. 2. With respect to
a claim ofestoppel against the federal government,
a misrepresentation or concealment of a material
fact by a government employee -beyond a merely
innocent or negligent misrepresentation. [Cases:
Estoppel C-::;;:'62.2(3, 4).]
juror misconduct. (1954) A juror's violation of the
court's charge or the law, committed either during
trial or in deliberations after trial, such as (1) com
municating about the case with outsiders, witnesses,
attorneys, bailiffs, or judges, (2) bringing into the
jury room information relating to the case but not
in evidence, and (3) conducting experiments regard
ing theories of the case outside the court's presence.
[Cases: Criminal Law (:::;)855; Federal Courts
1974; Trial (:::;::,304-311.]
misconduct in office. See official misconduct.
official misconduct. (1830) A public officer's corrupt
violation of assigned duties by malfeasance, misfea
sance, or nonfeasance. Also termed misconduct
in office; misbehavior in office: malconduct in office;
misdemeanor in office: corruption in office: official
corruption; political corruption. [Cases: Officers and
Public Employees (;=, 121.]
wanton misconduct. (1844) An act, or a failure to act
when there is a duty to do so, in reckless disregard
ofanother's rights, coupled with the knowledge that
injury will probably result. -Also termed wanton
and reckless misconduct. [Cases: Negligence
275.)
willful and wanton misconduct. (1866) Conduct com
mitted with an intentional or reckless disregard for
the safety ofothers, as by failing to exercise ordinary
care to prevent a known danger or to discover a
danger. Also termed willful indifference to the
safety ofothers. [Cases: Automobiles (::::::) 181(1): Neg
ligence (;:::>275.]
willful misconduct. (1804) Misconduct committed
voluntarily and intentionally. (Cases: Carriers
307(6.1); Negligence (:::;::,275; Unemployment Com
pensation (:::;::,65.]
"This term of art [willful misconduct] has defied definition,
but it is clear that it means something more than neg
ligence. Two classic examples of misconduct which will
defeat the seaman's claim are intoxication and venereal
disease." Frank L. Maraist, Admiralty in a Nutshell 185-86
(3d ed. 1996).
willful misconduct ofan employee. (1884) The delib
erate disregard by an employee of the employer's
interests, including its work rules and standards of conduct, justifying a denial of unemployment com
pensation if the employee is terminated for the mis
conduct. [Cases: Unemployment Compensation
65.]
2. An attorney's dishonesty or attempt to persuade
a court or jury by using deceptive or reprehensible
methods. (Cases: Criminal Law(:::;::, 1980-2210; Federal
Civil Procedure (:::;::, 1970; Trial ('::::> 113.]
miscontinuance. (16c) A continuance erroneously
ordered by a court.
miscreant (mis-kree-ant). (l4c) 1. A wrongdoer. 2. An
apostate; an unbeliever.
misdate. (16c) To erroneously date (a document, etc.).
misdelivery. (1867) Delivery not according to contrac
tual specifications; esp. delivery to the wrong person
or delivery of goods in a damaged condition . This
concept applies to contracts ofcarriage and contracts of
sale, lease, etc., requiring delivery in some form. [Cases:
Carriers (:::;::,93; Shipping <:--::;;:, 117.)
misdemeanant (mis-d~-mee-n~nt), n. (1819) A person
who has been convicted of a misdemeanor.
misdemeanor (mis-di-mee-n~r). (I6c) 1. A crime that
is less serious than a felony and is usu. punishable by
fine, penalty, forfeiture, or confinement (usu. for a brief
term) in a place other than prison (such as a county
jail). Also termed minor crime; summary offense. Cf.
FELONY (1). [Cases: Criminal Law C~27.l
"'Misdemeanor' was the label ultimately adopted to apply
to all offenses other than treason or felony. The term
included a wide variety ofwrongs and misprisions. Many of
the substantive legal principles and procedures applicable
to felonies were not applied in the case of misdemeanors.
The difference in treatment between felonies and misde
meanors has carried over from common law to current
practice. and today misdemeanors are often treated differ
ently than felonies [in) the procedures employed in trying
such cases as well as [in) the consequences of a conviction.
The traditional distinction between felonies and misde
meanors has been abolished in England." Rollin M. Perkins
&Ronald N. Boyce, Criminal Law 15 (3d ed. 1982).
gross misdemeanor. 08c) A serious misdemeanor,
though not a felony. Also termed high misde
meanor.
high misdemeanor. l. Hist. English law. A crime that
ranked just below high treason in seriousness . In
English law, the term was essentially synonymous
with crime. Examples of crimes called high misde
meanors are riot and conspiracy. In early American
law, the term had the same meaning as in English law
and was used in defining crimes such as sedition. 2.
See gross misdemeanor. 3. See serious misdemeanor.
serious misdemeanor. (1893) One of a class of mis
demeanors having more severe penalties than most
other misdemeanors . Conduct rising to the level of
a serious misdemeanor can, in some jurisdictions,
be charged as either a felony or a misdemeanor.
Also termed high misdemeanor; indictable mis
demeanor; penitentiary misdemeanor; aggravated
misdemeanor.

1090 misdemeanor in office
treasonable misdemeanor. See TREASO:-.rABLE MISDE
MEANOR.
2. Archaic. Any crime, including a felony.
"A crime, or misdemeanor, is an act committed, or omitted,
in violation of a public law, either forbidding or command
ing it. This general definition comprehends both crimes
and misdemeanors; which, properly speaking, are mere
synonymous terms: though, in common usage, the word,
'crimes,' is made to denote such offences as are of a deeper
and more atrocious dye, while smaller faults, and omis
sions of less consequence, are comprised under the gentler
names of 'misdemeanors' only." 4 William Blackstone, Com
mentaries on the Laws of England 5 (1769).
misdemeanor in office. See official misconduct under
MISCONDUCT.
misdemeanor manslaughter. See MANSLAUGHTER.
misdemeanor-manslaughter rule. (1967) The doctrine
that a death occurring during the commission of a
misdemeanor (or sometimes a nondangerous felony)
is involuntary manslaughter. -Many states and the
Model Penal Code have abolished this rule. Cf. FELONY
MURDER RULE. [Cases: Homicide 0-'-::620-652.]
"Companion to the felony-murder rule is the so-called mis
demeanor-manslaughter rule!:l ... Homicide resulting from
the perpetration or attempted perpetration of an unlawful
act, less than a dangerous felony, is manslaughter if the
unlawful act is malum in se." Rollin M. Perkins & Ronald N.
Boyce, Criminal Law 108 (3d ed. 1982).
misdescription. (1848) L A contractual error or falSity
that deceives, injures, or materially misleads one ofthe
contracting parties. 2. A bailee's inaccurate identifica
tion, in a document oftitle, ofgoods received from the
bailor. 3. An inaccurate description of land in a
deed. [Cases: Deeds
misdirection. See MISCHARGE.
mise (meez or mIZ), n. [Law French] Hist. 1. Expenses
incurred in litigation. 2. The general issue in a writ of
right. -When a tenant pleads superior title to the plain
tiff, the tenant is said to join the mise on the mere right.
3. A settlement; a compromise, as in the Mise ofLewes
between Henry III and the rebelling barons.
mise money. Hist. Money paid by contract to purchase
a privilege.
miserabile depositum (miz-;>-rab-;>-lee di-poz-;>-t;>m).
[Law Latin "a pitiful deposit"] Civil law. A deposit or
bailment made in an emergency, as in a shipwreck, fire,
or insurrection.
miserere (miz-a-reer-ee). [Latin] Hist. Have mercy.
This is the first phrase of the 51st psalm, used to test a
person claiming benefit ofclergy. See NECK VERSE.
misericordia (miz-;>-ri-kor-dee-a). [Law Latin] Hist.
1. Mercy. 2. An arbitrary fine as a punishment. 3. An
exemption from a fine.
misericordia communis (miz-;>-ri-kor-dee-;> k;>-myoo
nis). [Law LatinJ Hist. A fine levied on a whole
county.
misfeasance (mis-fee-z;>nts), n. (16c) 1. A lawful act
performed in a wrongful manner. [Cases: Negligence
{~200.J 2. More broadly, a transgression or trespass; MALFEASANCE. Cf. NONFEASANCE. --misfeasant,
adj. -misfeasor, n.
misfeasance in public office. (1880) The tort of excessive,
malicious, or negligent exercise ofstatutory powers by
a public officer. Also termed malfeasance. [Cases:
Officers and Public Employees (::::::> 116.]
mishering. See MISKERING.
mishersing. See MISKERING.
misjoinder (mis-joyn-d;>r). (I8c) 1. The improper union
of


.
misjoinder (mis-joyn-d;>r). (I8c) 1. The improper union
of parties in a civil case. See JOINDER. Cf. DlSJOINDER;
NONJOINDER. [Cases: Federal Civil Procedure (::::::>387;
Parties (::::::>85, 89.J 2. The improper union of offenses
in a criminal case. [Cases: Indictment and Informa
tion 126.J
miskenning (mis-ken-ing). [fro French misw "wrong" +
Saxon cennan "to declare"J 1. A wrongful summons.
2. A pleading mistake or irregularity.
"But every defeated plaintiff could be amerced 'for a false
claim.' Incidentally too any falsehood ... that is, anyfraudu
lent misuse of the machinery ofthe law, would be punished
by imprisonment. Then again every default in appearance
brought an amercement on the defaulter and his pledges.
Every mistake in pleading, every miskenning . .. brought
an amercement on the pleader if the mistake was to be
retrieved. A litigant who hoped to get to the end of his suit
without an amercement must have been a sanguine man;
for he was playing a game of forfeits." 2 Frederick Pollock
& Frederic W. Maitland, The History of English Law Before
the Time ofEdward I 519 (2d ed. 1899).
miskering (mis-k;>r-ing). Hist. Freedom or immunity
from amercement. - Also termed abishering; abishers
ing; mishering; mishersing.
mislaid property. See PROPERTY.
mislay, vb. (15c) To deposit (property, etc.) in a place
not afterwards recollected; to lose (property, etc.) by
forgetting where it was placed. See mislaid property
under PROPERTY.
misleading, adj. (l6c) (Of an instruction, direction, etc.)
delusive; calculated to be misunderstood. [Cases: Fraud
13(1)-1
misnomer (mis-noh-m;>r). (l5c) A mistake in naming
a person, place, or thing, esp. in a legal instrument.
-In federal pleading -as well as in most states
misnomer of a party can be corrected by an amend
ment, which will relate back to the date ofthe original
pleading. Fed. R. Civ. P. 15(c)(3). [Cases: Federal Civil
Procedure (::::::> 382; Limitation of Actions (::::::> 121(2);
Parties (;::::>94, 95(3).]
misperformance. (17c) A faulty attempt to discharge an
obligation (esp. a contractual one). Cf. PERFORMANCE;
NONPERFORMAKCE.
mispleading. (16c) Pleading incorrectly. - A party who
realizes that its pleading is incorrect can usu. amend
the pleading, as a matter of right, within a certain
period, and can thereafter amend with the court's
permission.
misprision (mis-prizh-;>n). (15c) 1. Concealment or non
disclosure of a serious crime by one who did not par

1091
ticipate in the crime. [Cases: Compounding Offenses
~l.]
clerical misprision. (I8c) A court clerk's mistake or
fraud that is apparent from the record.
misprision offelony. (l6c) Concealment or nondisclo
sure of someone else's felony. See 18 USCA  4. [Cases:
Compounding Offenses C;;,) 1.1.]
"In fact, whatever the law may be, it is not the general
custom to prosecute for misprision of felony, even where
a person who knows of a felony is questioned by the
pOlice and refuses to make a statement. Indeed, Stephen,
writing in the nineteenth century, regarded the offence as
'practically obsolete'; and American courts have refused !
to recognise it as subsisting, But there have been four suc
cessful prosecutions in England during the last quarter
century ... ," Glanville Williams, Criminal Law 424 (2d i
ed.1961).
misprision oftreason. (16c) Concealment or nondis
closure of someone else's treason. [Cases: Treason
negative misprision. (I8c) 1he wrongful concealment
of something that should be revealed <misprision of
treason>.
positive misprision. (I8c) The active commission of a
wrongful act <seditious conduct against the govern- i
ment is positive misprision>.
2. Seditious conduct against the government. 3. An
official's failure to perform the duties of public office.
[Cases: Officers and Public Employees Cd121.]4. Mis
understanding; mistake.
'The word 'misprision' has been employed with different
meanings. While Blackstone thought of it as referring to i
a grave misdemeanor, it seems to have been used earlier '
to indicate the entire field of crime below the grade of
treason or felony before the word 'misdemeanor' became
the generally accepted label for this purpose. More recently
it has been said: 'Misprision is nothing more than a word
used to describe a misdemeanor which does not possess
a specific name: [United States v. Perlstein, 126 F.2d 789,
798 (3d Or. 1942).1 It has been associated with two specific
offenses, and only these, from the earliest times, They
are misprision of treason and misprision of felony, which
consist of the criminal default of one in regard to the crime
of another." Rollin M. Perkins & Ronald N. Boyce, Criminal
Law 572 (3d ed, 1982).
misprisor (mis-prI-zar). One who commits mispriSion
of felony.
misreading. An act of fraud in which a person incor
rectly reads the contents of an instrument to an illiter
ate or blind person with the intent to deceitfully obtain
that person's signature. [Cases: Fraud (~4.5.1
misrecital. (16c) An incorrect statement of a factual
matter in a contract, deed, pleading, or other instru
ment.
misrepresentation, n. (l7c) 1. The act of making a false
or misleading assertion about something, usu. with the
intent to deceive . The word denotes not just written or
spoken words but also any other conduct that amounts
to a false assertion. [Cases: Fraud ~9.1 2. The asser
tion so made; an assertion that does not accord with
the facts. Also termed false representation; (redunmisrepresentation
dantly) false misrepresentation. Cf. REPRESENTATION
(1). -misrepresent, vb.
"A misrepresentation, being a false assertion of fact,
commonly takes the form of spoken or written words.
Whether a statement is false depends on the meaning of
the words in all the circumstances, including what may
fairly be inferred from them. An assertion may also be
inferred from conduct other than words, Concealment or
even non-disclosure may have the effect of a misrepre
sentation . .. [AJn assertion need not be fraudulent to
be a misrepresentation. Thus a statement intended to be
truthful may be a misrepresentation because of ignorance
or carelessness, as when the word 'not' is inadvertently
omitted or when inaccurate language is used. But a misrep
resentation that is not fraudulent has no consequences ...
unless it is material." Restatement (Second) of Contracts
 159 cmt. a (1979).
fraudulent misrepresentation. (18c) A false statement
that is known to be false or is made recklessly
without knOWing or caring whether it is true or
false and that is intended to induce a party to det
rimentally rely on it. Also termed fraudulent rep
resentation; deceit. [Cases: Fraud ~8.j
"A misrepresentation is fraudulent if the maker intends
his assertion to induce a party to manifest his assent and
the maker (a) knows or believes that the assertion is not in
accord with the facts, or (b) does not have the confidence
that he states or implies in the truth of the assertion, or
(c) knows that he does not have the basis that he states or
implies for the assertion." Restatement (Second) of Con
tracts  162(1) (1979).
innocent misrepresentation. (1809) A false statement
that the speaker or writer does not know is false; a
misrepresentation that, though false, was not made
fraudulently. [Cases: Fraud C=,13(2).]
material misrepresentation. (I8c) 1. Contracts. A false
statement that is likely to induce a reasonable person
to assent or that the maker knows is likely to induce
the recipient to assent. [Cases: Contracts C:-:>94.J 2.
Torts. A false statement to which a reasonable person
would attach importance in deciding how to act in the
transaction in question or to which the maker knows
or has reason to know that the recipient attaches some
importance. See Restatement (Second) of Torts  538
(1979). [Cases: Fraud ~18.]
"The materiality of a misrepresentation is determined
from the viewpoint of the maker, while the justification
of reliance is determined from the viewpoint of the reCipi
ent.... The requirement of materiality may be met in
either of two ways. First, a misrepresentation is material
if it would be likely to induce a reasonable person to
manifest his assent. Second, it is material if the maker
knows that for some special reason it is likely to induce
the particular recipient to manifest his assent, There may
be personal considerations that the recipient regards as
important even though they would not be expected to
affect others in his situation, and if the maker is aware of
this the misrepresentation may be material even though
it would not be expected to induce a reasonable person
to make the proposed contract. One who preys upon
another's known idiosyncrasies cannot complain if the
contract is held voidable when he succeeds in what he is
endeavoring to accomplish ... , Although a nonfraudulent
misrepresentation that is not material does not make the
contract voidable under the rules stated in this Chapter,
the reCipient may have a claim to relief under other rules,
such as those relating to breach of warranty." Restatement
(Second) of Contracts  162 cmt. C (1979).

misrepresentation ofsource. See PASSING OFF.
negligent misrepresentation. (1888) A careless or inad
vertent false statement in circumstances where care
should have been taken. [Cases: Fraud C=:> 13(3).]
misrepresentee. A person to whom a fact has been mis
represented.
misrepresenter. A person who misrepresents a fact to
another. -Also spelled misrepresentor.
Missile Defense Agency. A unit in the U.S. Department
of Defense responsible for developing and deploying
a missile-defense system capable of protecting the
United States, its armed forces, and others from missile
attack. Abbr. MDA.
missilia (mi-sI-lee-<J), n. pl. [fro Latin mit/ere "to throw"]
Roman law. Money that the praetors, consuls, or
wealthy individuals throw as gifts to people on the
street; largesse.
missing-evidence rule. (198l) The doctrine that, when
a party fails at trial to present evidence that the party
controls and that would have been proper to present,
the jury is entitled to infer that the evidence would have
been unfavorable to that party. [Cases: Evidence
74.]
missing person. 1. Someone whose whereabouts are
unknown and, after a reasonable time, seem to be
unascertainable. 2. Someone whose continuous and
unexplained absence entitles the heirs to petition a
court to declare the person dead and to divide up the
person's property. See SEVEN-YEARS'-ABSENCE RULE. Cf.
DISAPPEARED PERSON. [Cases: Death
missing ship. Maritime law. A vessel that has been gone
for an unreasonably long time, leading to the presump
tion that it is lost at sea; esp. a vessel that has been gone
longer than the average time it takes a vessel to make a
similar voyage in the same season.
missing-witness rule. (1961) The doctrine that, when a
party fails at trial to present a witness who is available
only to that party and whose testimony would have
been admissible, the jury is entitled to infer that the
witness's testimony would have been unfavorable to
that party. [Cases: Criminal Law C=:>317; Evidence C=:>
77; Trial C=:>211.J
missio in bona (mis[hJ-ee-oh in boh-n<'l). [Latin] Roman
law. 1. A praetor's grant to a creditor ofindividual items
ofthe judgment debtor's property already in the credi
tor's possession. 2. A praetor's grant to a creditor in
possession of the debtor's whole estate, as a form of
execution ofjudgment.
missio in possessionem (mis[hJ-ee-oh in pa-zes[h]-ee
oh-n<'lm). [Latin] Roman law. A praetor's grant to a
creditor ofthe debtor's entire estate as a form ofexecu
tion ofjudgment.
mistake, n. (17c) 1. An error, misconception, or misun
derstanding; an erroneous belief. See ERROR. 2. Con
tracts. The situation in which either (1) the parties to
a contract did not mean the same thing, or (2) at least
one party had a belief that did not correspond to the facts or law . As a result, the contract mav be voidable.
[Cases: Contracts ~93.] .
"In this Restatement the word 'mistake' is used to refer to
an erroneous belief. A party's erroneous belief is there
fore said to be a 'mistake' of that party. The belief need
not be an articulated one, and a party may have a belief
as to a fact when he merely makes an assumption with
respect to it, without being aware of alternatives. The
word 'mistake' is not used here, as it is sometimes used
in common speech. to refer to an improvident act, i nclud


'mistake' is not used here, as it is sometimes used
in common speech. to refer to an improvident act, i nclud
ing the making of a contract, that is the result of such an
erroneous belief. This usage is avoided here for the sake of
clarity and consistency. Furthermore, the erroneous belief
must relate to the facts as they exist at the time of the
making of the contract. A party's prediction or judgment
as to events to occur in the future, even if erroneous, is
not a 'mistake' as that word is defined here. An errone
ous belief as to the contents or effect of a writing that
expresses the agreement is, however, a mistake. Mistake
alone, in the sense in which the word is used here. has no
legal consequences. The legal consequences of mistake
in connection with the creation of contractual liability are
determined by [substantive rules] ," Restatement (Second)
of Contracts  151 emt. a (1979).
"The word mistake is generally used in the law of contracts
to refer to an erroneous belief -'a belief that is not in
accord with the facts.' To avoid confUSion. it should not
be used. as it sometimes is in common speech, to refer to
an improvident act, such as the making of a contract, that
results from such an erroneous belief. Nor should it be
used. as it sometimes is by courts and writers, to refer to
what is more properly called a misunderstanding. a situ
ation in which two parties attach different meanings to
their language." E. Allan Farnsworth, Contracts  9.2, at 619
(3d ed. 1999) (quoting Restatement (Second) of Contracts
 151 (3d ed. 1979)).
basic mistake. A mistake offact or oflaw constituting
the basis on which a transaction rests.
bilateral mistake. See mutual mistake (1).
collateral mistake. See unessential mistake.
common mistake. See mutual mistake (2).
essential mistake. (1818) Contracts. A mistake serious
enough that no real consent could have existed, so
that there was no real agreement. [Cases: Contracts
G~93.1
inessential mistake. See unessential mistake.
mistake offact. (1808) 1. A mistake about a fact that
is material to a transaction; any mistake other than a
mistake oflaw. -Also termed error in fact; error of
fact. [Cases: Contracts 2. "The defense assert
ing that a criminal defendant acted from an innocent
misunderstanding offact rather than from a criminal
purpose.
mistake oflaw. (I8c) L A mistake about the legal effect
ofa known fact or situation. -Also termed error in
law; error oflaw. [Cases: Contracts G=;)93(4).] 2. The
defense asserting that a defendant did not understand
the criminal consequences ofcertain conduct.  This
defense is generally not as effective as a mistake of
fact.
mutual mistake. (I8c) 1. A mistake in which each party
misunderstands the other's intent. Also termed
bilateral mistake. [Cases: Contracts C=:>93(S).] 2. A
mistake that is shared and relied on by both parties

to a contract.  A court will often revise or nullify a
contract based on a mutual mistake about a material
term. Also termed (in sense 2) common mistake.
[Cases: Contracts (:::J93(5); Reformation ofInstru
ments (;:::: 19.J
"The term 'common mistake' is more usually, but less
grammatically, referred to as 'mutual mistake'. Cheshire
and Fifoot on Contract have made a heroic effort to intra
duce and establish the more correct term, and it does seem
to be gaining ground. However, the beginner is warned
that the term 'mutual mistake' is nearly always used by
the Courts to mean what we here call 'common mistake'."
P.S. Atiyah, An Introduction to the Law ofContract 190 n.7
(3d ed. 1981).
nonessential mistake. See unessential mistake.
unessential mistake. (1928) Contracts. A mistake that
does not relate to the nature of the contents of an
agreement, but only to some external circumstance,
so that the mistake has no effect on the validity of
the agreement. Also termed inessential mistake;
nonessential mistake; collateral mistake. [Cases: Con
tracts
unilateral mistake. (1885) A mistake by only one party
to a contract.  A unilateral mistake is generally not
as likely to be a ground for VOiding the contract as is
a mutual mistake. [Cases: Contracts C::>93.]
mistakenly induced revocation. See DEPENDENT RELA
TIVE REVOCATION.
mistery (mist~r-ee). Hist. A business; a trade. Also
spelled mystery.
mistrial. (17c) 1. A trial that the judge brings to an end,
without a determination on the merits, because of a
procedural error or serious misconduct occurring
during the proceedings. [Cases: Criminal Law G=>867;
Federal Civil Procedure (;::::> 1951; Trial c";:=:} 18, 133.1,
304.] 2. A trial that ends inconclusively because the
jury cannot agree on a verdict. -Also termed abortive
trial. [Cases: Criminal Law (;::::;867.]
misunderstanding. (Bc) 1. A flawed interpretation of
meaning or significance. 2. A situation in which the
words or acts oftwo people suggest assent, but one or
both ofthem in fact intend something different from
what the words or acts express. 3. A quarrel; an instance
ofusu. mild wrangling.
misuse, n. (14c) 1. Products liability. A defense alleging
that the plaintiff used the product in an improper,
unintended, or unforeseeable manner. [Cases: Products
Liability C:::c 182.] 2. Patents. The use ofa patent either
to improperly extend the granted monopoly to non
patented goods or to violate antitrust laws. [Cases:
Patents (:::J283(l).]
misuser. (17c) An abuse ofa right or office, as a result of
which the person having the right might lose it <it is
an act of misuser to accept a bribe>. Cf. USER. [Cases:
Officers and Public Employees (:::J64.]
mitigate (mit-a-gayt), vb. (15c) To make less severe or
intense <the fired employee mitigated her damages
for wrongful termination by accepting a new job>. Cf. MILITATE. -mitigation, n. mitigatory (mit-~-g~
tor-ee), adj.
mitigating circumstance. See CIRCUMSTANCE.
mitigation cost. See COST (1).
mitigation-of-damages doctrine. (1978) The princi
ple requiring a plaintiff, after an injury or breach of
contract, to make reasonable efforts to alleviate the
effects of the injury or breach. Ifthe defendant can
show that the plaintiff failed to mitigate damages, the
plaintiff's recovery may be reduced. Also termed
avoidable-consequences doctrine. Cf. DOCTRINE OF
CONSTRUCTIVE SERVICE (2). [Cases: Damages (:::J62.]
mitigation ofpunishment. (18c) Criminal law. A reduc
tion in punishment due to mitigating circumstances
that reduce the criminal's level of culpability, such as
the existence of no prior convictions. See mitigating
circumstance under CIRCUMSTANCE.
mitigator. A factor tending to show that a criminal
defendant, though guilty, is less culpable than the act
alone would indicate <the fact that he was coerced into
taking part in the robbery may have been a mitigator
in the minds ofthe jurors>. Cf. AGGRAVATOR. [Cases:
Sentencing and Punishment C=>54.]
mitiori sensu. See IN MITIORI SENSU.
mitter avant (mit-<'lf ~-vant), vb. [Law French] Hist. To
present or produce (evidence, etc.) to a court.
mittimus (mit-<'l-m<'ls). [Law Latin "we send") Hist. 1.
A court order Of warrant directing a jailer to detain
a person until ordered otherwise; COMMITMENT (4).
[Cases: Sentencing and Punishment C-:::>462, 463.] 2.
A certified transcript ofa prisoner's conviction or sen
tencing proceedings. 3. A writ directing the transfer of
records from one court to another. PI. mittimuses.
mixed action. See ACTION (4).
mixed blood. See BLOOD.
mixed cognation. See COGNATION.
mixed condition. See CONDITION (2).
mixed contract. See CONTRACT.
mixed cost. See COST (1).
mixed government. See GOVERNMENT.
mixed insurance company. See INSURANCE COMPANY.
mixed interpretation. See liberal interpretation under
INTERPRETATION.
mixed jury. See JURY.
mixed larceny. See LARCENY.
mixed law. A law concerning both persons and
property.
mixed marriage. See MISCEGENATION.
mixed-motive doctrine. Employment law. The principle
that, when the evidence in an employment-discrimi
nation case shows that the complained-of employment
action was based in part on a nondiscriminatory reason
and in part on a discriminatory reason, the plaintiff
must show that discrimination was a motivating factor

for the employment action and, if the plaintiff makes
that showing, then the defendant must show that it
would have taken the same action without regard to the
discriminatory reason. [Cases: Civil Rights C=>1137.]
mixed nuisance. See NUISANCE.
mixed policy. See INSURANCE POLICY.
mixed presumption. See PRESUMPTION.
mixed property. See PROPERTY.
mixed question. (lSc) L MIXED QUESTION OF LAW AND
FACT. 2. An issue involving conflicts of foreign and
domestic law.
mixed question oflaw and fact. (1S05) An issue that
is neither a pure question of fact nor a pure question
of law. Mixed questions of law and fact are typi
cally resolved by juries. -Often shortened to mixed
question. -Also termed mixed question offact and
law. [Cases: Administrative Law and Procedure
781; Appeal and Error C=>S42(9); Criminal Law
735; Federal Courts Trial Cr~137.]
"Many issues in a lawsuit involve elements of both law and
fact. Whether these be referred to as mixed questions of
law and fact, or legal inferences from the facts, or the
application of law to the facts, there is substantial authority
that they are not protected by the 'clearly erroneous' rule
and are freely reviewable. This principle has been applied
to antitrust violations, bankruptcy, contracts, copyright,
taxation, and to other areas of the law." 9A Charles Alan
Wright & Arthur R. Miller, Federal Practice and Procedure
 2589, at 608-11 (2d ed. 1995).
mixed tithes. See TITHE.
mixed treaty. See TREATY (1).
mixed trust. See TRUST.
mixed war. See WAR.
mixtion (miks-chan). Archaic. 1. The process ofmixing
products together so that they can no longer be sepa
rated. 2. The product of mixing.
mixtum imperium (miks-ti'lm im-peer-ee-am). [Latin]
Rist. Mixed authority; mixed jurisdiction . This term
refers to the power of subordinate civil magistrates.
M]OA. abbr. MOTION FOR JUDGMENT OF ACQUITTAL.
MLA. abbr. MOTION FOR LEAVE TO APPEAL.
MMBtu. Abbr. Oil & gas. One million British thermal
units, one ofthe standard units for measuring natural
gas.
MMI. abbr. MAXIMUM MEDICAL IMPROVEMENT.
M'Naghten rules. See MCNAGHTEN RULES.
M'Naughten rules. See MCNAGHTEN RULES.
M.O. abbr. MODUS OPERANDI.
mobile goods. See GOODS.
Mobile-Sierra doctrine. The principle that the Federal
Energy Regulatory Commission may not grant a rate
increase to a natural-gas producer unless the produc
er's contract authorizes a rate increase, or unless the
existing rate is so low that it may adversely affect the
public interest (as by threatening the continued viabil
ity of the public utility to continue its service). United Gas Pipe Line Co. v. Mobile Gas Servo Corp., 350 U.S.
332,76 S.Ct. 373 (1956); Federal Power Comm'n v. Sierra
Pac. Power Co., 350 D.S. 348, 76 S.Ct. 368 (1956).
Also termed Sierra-Mobile doctrine. [Cases: Gas C=~
14.4(1).]
mobilia (moh-bil-ee-i'l), n. pI. [Latin "movables"] Roman
law. Movable things . The term primarily refers to
inanimate objects but sometimes also refers to slaves
and animals.
mobilia sequuntur personam (moh-bil-ee-a si-kwdn
tar pdr-soh-nam). [Latin] Int'llaw. Movables follow
the person -Le., the law of the person. This is the
general principle that rights ofownership and transfer
of movable property are determined by the law of the
owner's domicile. [Cases: Property C=>6; Taxation
2211.]
"The maxim mobilia sequuntur personam is the excep
tion rather than the rule, and is probably to be confined
to certain special classes of general assignments such
as marriage settlements and devolutions on death and
bankruptcy." Handel v. S/atford, 1953 Q.B. 248, 257 (Eng.
C.A.).
"Under the influence of Savigny many Continental systems
in the mid-nineteenth century led the way for Anglo-Amer
ican law in limiting the operation


igny many Continental systems
in the mid-nineteenth century led the way for Anglo-Amer
ican law in limiting the operation of the doctnne of mobilia
sequuntur personam to universal assignments of movables,
adopting for particular assignments the single principle
of the lex situs of the movable." R.H. Graveson, Conflict of
Laws 457 (7th ed. 1974).
mock trial. (18c) 1. A fictitious trial organized to allow
law students, or sometimes lawyers, to practice the
techniques of trial advocacy. 2. A fictitious trial,
arranged by a litigant's attorney, to assess trial strategy,
to estimate the case's value or risk, and to evaluate the
case's strengths and weaknesses . In this procedure,
people from the relevant jury pool are hired to sit as
mock jurors who, after a condensed presentation of
both sides, deliberate and reach a verdict (often while
being observed by the participants behind a one-way
glass). The jurors may later be asked specific ques
tions about various arguments, techniques, and other
issues. Because the mock jurors usu. do not know which
side has hired them, their candid views are thought
to be helpful in formulating trial strategies. Cf. MOOT
COl:RT.
modal legacy. See LEGACY.
mode. (l7c) A manner of doing something <mode of
proceeding> <mode ofprocess>.
model act. (1931) A statute drafted by the National
Conference of Com missioners on Uniform State Laws
and proposed as gUideline legislation for the states to
borrow from or adapt to suit their individual needs .
Examples of model acts include the Model Employment
Termination Act and the Model Punitive Damages Act.
Cf. UNIFORM LAW; UNIFORM ACT.
Model Code of Professional Responsibility. A set of
gUidelines for lawyers, organized in the form of canons,
diSciplinary rules, and ethical considerations . Pub
lished by the ABA in 1969, this code has been replaced
in most states by the Model Rules of Professional

1095
Conduct as the ethical standards by which lawyers are
regulated and disciplined, although the Model Code
continues to be used to interpret and apply the Model
Rules. [Cases: Attorney and Client (;::::> 32(2).]
model jury charge. See model jury instruction under
JURY INSTRUCTION.
model juryinstruction. See fURY INSTRUCTION.
Model Marriage and Divorce Act. See UNIFORM
MARRIAGE AND DIVORCE ACT.
Model Penal Code. A proposed criminal code drafted
by the American Law Institute and used as the basis for
criminal-law revision by many states. -Abbr. MPC.
Model Penal Code test. See SUBSTANTIAL-CAPACITY
TEST.
Model Putative Fathers Act. See UNIFORM PUTATIVE
AND UNKNOWN FATHERS ACT.
Model Rules of Professional Conduct. A set ofethical
guidelines for lawyers, organized in the form of 52
rules some mandatory, some discretionary
together with explanatory comments. -Published by
the ABA in 1983, these rules have generally replaced
the Model Code of Professional Responsibility and have
been adopted as law, sometimes with modifications, by
most states. The Model Code of Professional Respon
sibility is sometimes used to interpret and apply the
Model Rules. [Cases: Attorney and Client (;::::>32(2).]
Model State Trademark Bill. A proposed statute intended
to standardize trademark laws among the states. -The
bill was first promulgated by the International Trade
mark Association (then called the United States Trade
mark Association) in 1949. -Abbr. MSTB.
model statute. See uniform statute under STATUTE.
moderamen inculpatae tutelae (moh-da-ray-man in-kal
pay-tee t[y]oo-tee-lee). 1. [Law Latin] Hist. The degree
offorce justified in self-defense. 2. A plea ofjustifiable
self-defense. -Also termed inculpatae tutelae mod
eratio (mod-a-ray-shee-oh).
moderate castigavit (mod-a-ray-tee kas-ta-gay-vit).
[Latin "he moderately chastised"] Hist. A plea justify
ing a trespass because it is really a chastisement that the
defendant is legally entitled to inflict on the plaintiff
because of their relationship.
moderate force. See nondeadly force under FORCE.
moderator. (16c) 1. One who presides at a meeting or
assembly. See CHAIR (1). 2. Scots law. The person who
presides in a public assembly; specif., the elected chair
of the General Assembly of the Church of Scotland or
another Presbyterian church, of a presbytery, or of a
kirk session.
modiatio (moh-dee-ay-shee-oh), n. [Latin] Hist. A duty
paid for every tierce ofwine. See PRISAGE.
modica differentia (mod-i-k<:l dif-<:l-ren-shee-<:l). [Latin]
Scots law. A moderate difference, esp. in price.
modification. (l7c) 1. A change to something; an altera
tion <a contract modification>. [Cases: Contracts
236.]2. A qualification or limitation of something <a Modus Tenendi Pariiamentum
modification of drinking habits>. 3. Parliamentary
law. A change in a motion that its mover initiates or
accepts, usu. before the chair has stated the motion.
_ The mover controls a motion only until the chair
states the question, after which the motion belongs to
the assembly and the mover cannot modify it without
the assembly's permission. See request for permission
to modify a motion under REQUEST.
modification order. Family law. A post-divorce order
that changes the terms ofchild support, custody, visita
tion, or alimony. _ A modification order may be agreed
to by the parties or may be ordered by the court. The
party wishing to modify an existing order must show
a material change in circumstances from the time
when the order sought to be modified was entered. See
CHANGE IN CIRCUMSTANCES. [Cases: Child Custody
C'='661; Child Support (;:::)342; Divorce (;:::>245(3).J
Modified Accelerated Cost Recovery System. See
ACCELERATED COST RECOVERY SYSTEM.
modified-comparative-negligence doctrine. See
50-PERCENT ReLE.
modius (moh-dee-<:ls), n. [Latin "a measure"] Hist. 1. A
bushel. 2. An uncertain measure, as of land.
modo et forma (moh-doh et for-rna). [Latin] In manner
and form. -In common-law pleading, this phrase
began the conclusion of a traverse. Its object was to
put the burden on the party whose pleading was being
traversed not only to prove the allegations of fact but
also to establish as correct the manner and form ofthe
pleading. - Also termed manner andform.
modus (moh-d<:ls), n. [Latin "mode"]l. Criminal pro
cedure. The part of a charging instrument describing
the manner in which an offense was committed. 2.
Roman & civil law. Mode; manner; consideration, esp.
the manner in which a gift, bequest, servitude, etc. is to
be employed. 3. Eccles. law. See DE MODO DECIMANDI.
Cf. MODUS OPERANDI.
modus decimandi (moh-d<:ls des-a-man-dI). See DE
i
MODO DECIMANDI.
modus de non decimando (moh-das dee non des-<:l-man
doh). See DE NON DECIMANDO.
modus habilis (moh-d<:ls hab-<:l-lis). [Latin] A valid
manner (in proving a debt, etc.).
i modus operandi (moh-d<:ls op-<:l-ran-dl or -dee). [Latin
"a manner of operating"] (17c) A method of operating
or a manner of procedure; esp. a pattern of criminal
behavior so distinctive that investigators attribute
it to the work of the same person <staging a fight at
the train station was part of the pickpocket's modus
operandi>. Abbr. M.O. PI. modi operandi.
modus tenendi (moh-das ta-nen-dl). [Latin] Hist. The
manner of holding. -This phrase referred to the differ
ent types oftenures by which estates were held.
I Modus Tenendi Parliamentum (moh-d<:ls ta-nen-dT
'pahr-Ia-men-tam). [Law Latin "the manner ofholding
Parliament"] Hist. A 14th-century writing on the

1096 modus transferendi
powers of Parliament, translated in the 17th century
and edited by T.D. Hardy in 1846.
modus transferendi (moh-dds trans-fd-ren-dI). [Law
Latin] Hist. The manner of transferring. Also spelled
modus transferrendi. Cf. TITULUS TRANSFERENDI.
modus vacandi (moh-dds vd-kan-dI). [Law Latin] Hist.
The manner ofvacating. This term was often used in
determining the circumstances under which a vassal
surrendered an estate to a lord.
modus vivendi (moh-dds vi-ven-dI or -dee). [Latin
"means of living (together),,] Int'llaw. A temporary,
provisional arrangement concluded between subjects
of international law and giving rise to binding obliga
tions on the parties.
"[Modus vivenqi] is an instrument of toleration looking
towards a settlement, by preparing for or laying down
the basis of a method of living together with a problem
or by bridging over some difficulty pending a permanent
settlement. Normally it is used for provisional and interim
arrangements which ultimately are to be replaced by a
formal agreement of a more permanent and detailed
character. There is no clear distinction of a modus vivendi
from other treaties. The most distinguishing feature is its
provisional character; nevertheless a modus vivendi may be
exercised for an indefinite period of time if it is prolonged
sine die or if a defi nitive solution to the problem cannot be
reached by treaty. Some 'temporary' arrangements have
actually turned out to be quite durable." Walter Rudolf,
"Modus Vivendi,'" in 3 Encvclopedia ofPublic International
Law 443 (1997).
moeble (myoo-boJl), adj. [Law French] Hist. Movable, as
in the phrase biens moebles ("movable goods").
moiety (moy-;>-tee). (15c) 1. A half of something (such
as an estate). -Also termed mediety. 2. A portion less
than half; a small segment. 3. In federal customs law,
a payment made to an informant who assists in the
seizure of contraband, the payment being no more than
25% of the contraband's net value (up to a maximum
of$250,000). 19 DSCA  1619.
moiety act. (1875) Criminal law. A law providing that a
portion (such as half) of an imposed fine will inure to
the benefit of the informant. [Cases: Fines
mole. (1922) A person who uses a long affiliation with an
organization to gain access to and betray confidential
information.
molestation. (15c) 1. The persecution or harassment
of someone <molestation of a witness>. 2. The act of
making unwanted and indecent advances to or on
someone, esp. for sexual gratification <sexual moles
tation>. -molest, vb. -molester, n.
child molestation. (1951) Any indecent or sexual
activity on, involving, or surrounding a child, usu.
under the of 14. See Fed. R. Evid. 414(d). [Cases:
Infants
Molineux rule. New York law. The principle that
evidence of prior crimes is inadmissible when offered
to prove the defendant's bad character and to show
that the defendant is therefore more likely than not to
have committed the crime charged. -The evidence is
admissible if offered to prove something other than criminal propensity, such as motive, identity, absence
of mistake or accident, intent, or the existence of a
common scheme or plan. The rule was first handed
down in People v. Molineux, 61 N.E. 286 (N.Y. 1901).
[Cases: Criminal Law C?369, 371.]
moliturae (mol-i-t[y]uur-ee or -chuur-ee). fLaw Latin]
Scots law. Tolls for grinding grain; multures. See CUM
ASTRICTIS MULTURIS.
molliter manus imposuit (mol-;>-tdr man-;:lS im-poz-[y]
oJ-wit). [Latin] Hist. He gently laid hands upon . This
phrase was used in actions of trespass and assault to
justify a defendant's use of force as reasonable, as when
it was necessary to keep the peace.
monarchy. (14c) A government in which a single person
rules, with powers varying from absolute dictatorship
to the merely ceremonial.
limited monarchy. A monarchical form ofgovernment
in which the monarch's power is subject to constitu
tional or other restraints. Also termed constitu
tional monarchy.
moneta (md-nee-t d), n. [Latin] Money.
monetagium (mon-;>-tay-jee-dm), n. [Law Latin
"mintage"] Hist. l. The right to coin money; mintage.
2. A tribute paid by s tenant to persuade a lord not to
change coinage.
monetarism (mon-i-td-riz-;>m). An economic theory
claiming that the money supply is the basic influence
on the economy . The theory was originated by Milton
Friedman in the late 1960s.
monetary, adj. 1. Of or relating to money <monetary
value> <monetary damages>. 2. Financial <monetary
services


relating to money <monetary
value> <monetary damages>. 2. Financial <monetary
services> <monetary investments>.
monetary bequest. See pecuniary bequest under
BEQUEST,
money. (14c) 1. The medium of exchange authorized or
adopted by a government as part of its currency; esp.
domestic currency <coins and currency are money>.
UCC  1-201(24).2. Assets that can be easily converted
to cash <demand deposits are money>. 3. Capital that
is invested or traded as a commodity <the money
market> 4. (pl.) Funds; sums of money <investment
moneys>. Also spelled (in sense 4) monies. See
MEDIUM OF EXCHANGE; LEGAL TENDER.
current money. Money that circulates throughout a
country; currency.
e-money. Money or a money substitute that is trans
formed into information stored on a computer or
computer chip so that it can be transferred over infor
mation systems such as the Internet. Cf. e-check under
CHECK. -Also termed digital cash; electronic cash;
electronic currency; Internet scrip; on-line scrip.
fiat money. Paper currency not backed by gold or
silver. -Also termed flat money.
hard money. 1. Coined money, in contrast to paper
currency. 2. Cash.

lawful money. Money that is legal tender for the
payment ofdebts.
paper money. Paper documents that circulate as
currency; bills drawn by a government against its
own credit.
real money. 1. Money that has metallic or other intrin
sic value, as distinguished from paper currency,
checks, and drafts. 2. Current cash, as opposed to
money on account.
money bequest. See pecuniary bequest under BEQUEST.
money bill. See revenue bill under BILL (3).
money broker. See BROKER.
money changer. One whose primary business is exchang
ing currencies.
money claim. Hist. Under the English Judicature Act
of 1875, money claimed as damages, as for breaches of
contract and rent arrearages.
money count. See COUNT.
money demand. (1821) A claim for a fixed, liquidated
sum, as opposed to a damage claim that must be
assessed by a jury. [Cases: Damages (';:::,200.]
moneyed capital. See CAPITAL.
moneyed corporation. See CORPORATION.
money had and received. See action for money had and
received under ACTION (4).
money judgment. See JUDGMENT.
money land. Money held in a trust providing for its con
version into land.
money-laundering, n. (1974) The act of transferring
illegally obtained money through legitimate people or
accounts so that its original source cannot be traced.
 Money-laundering is a federal crime. 18 USCA
 1956. It is also addressed by state governments, e.g.,
through the Uniform Money Services Act. Because
some money-laundering is conducted across national
borders, enforcement of money-laundering laws often
requires international cooperation, fostered by
nizations such as Interpol. [Cases; United States
34.]
money made. A sheriff's return on a writ of execution
signifying that the sum stated on the writ was collected.
[Cases; Execution
money market. See MARKET.
money-market account. An interest-bearing account at
a bank or other financial institution . Such an account
usu. pays interest competitive with money-market
funds but allows a limited number oftransactions per
month. See money market under MARKET.
money-market fund. See MUTUAL FUND.
money order. (1802) A negotiable draft issued by an
authorized entity (such as a bank, telegraph company,
post office, etc.) to a purchaser, in lieu of a check to be
used to pay a debt or otherwise transmit funds upon the
credit of the issuer. [Cases; Postal Service (>:"J 18.] money paid. See action for money paid under ACTION
(4).
money-purchase plan. See EMPLOYEE BENEFIT PLAN.
money scrivener. A money broker; one who obtains
money for mortgages or other loans.
money service business, n. A nonbank entity that
provides mechanisms for people to make payments or
to obtain currency or cash in exchange for payment
instruments . Money service businesses do not accept
deposits or make loans. They include money transmit
ters, payment instrument sellers, stored-value provid
ers, check cashers, and currency exchangers. Also
termed nonbank financial institution; nondepository
provider offinancial services.
money supply. 1he total amount ofmoney in circulation
in the economy. See Ml: M2; M3.
monger (mang-g;lr). Archaic. A seller of goods; a dealer
<moneymonger>.
monier (moh-nyair or m<ln-ee-;lr), n. [fro Law Latin mon
etarius ~a moneyer"] Hist. 1. A minister ofthe mint. 2.
A banker; a dealer in money. -Also spelled moneyer.
monies. See MONEY (4).
moniment. Archaic. A memorial; a monument.
monition (ma-nish-;m), n. (14c) 1. Generally, a warning
or caution; ADMONITION. 2. Civil & maritime law.
A summons to appear in court as a defendant or to
answer contempt charges. [Cases; Admiralty (;::>44,
46; Contempt (;::>55.) 3. Eccles. law. A formal notice
from a bishop demanding that an offense within the
clergy be corrected or avoided. -monish (mon-ish),
vb. -monitory (mon-d-tor-ee), adj.
monitory letter. Eccles. law. Admonitory communica
tions sent from an ecclesiastical judge to staff members
in response to reported abuses or scandals.
monocracy (ma-nok-ra-see). A government by one
person.
monocrat (mon-d-krat). A monarch who governs
alone.
monogamy (m;l-nog-d-mee), n. (lSc) L The custom prev
alent in most modern cultures restricting a person to
one spouse at a time. 2. The fact of being married to
only one spouse. Cf. BIGAMY; POLYGAMY. -monoga
mous, adj. -monogamist, n.
monomachy (m<'l-nom-<'l-kee). Hist. See DUEL (2).
monomania (mon-<'l-may-nee-d). (1823) Insanity about
some particular subject or class of subjects, usu. mani
fested by a single insane delusion . A will made by
someone suffering from this condition is usu. held valid
unless the evidence shows that particular provisions in
the will were influenced by the insane delusion. [Cases:
Mental Health e:-~3.Ll -monomaniacal, adj.
monomaniac, n.
monopolist (ma-nop-<'l-list), n. 1. One who has a
monopoly; specif., a seller or combination of sellers
who can alter the price of a product in the market by
changing the quantity sold. By reducing output, a

1098 monopolium
monopolist can raise the price above the cost of supply
ing the market. 2. A proponent ofa monopoly.
monopolium (mon-a-poh-lee-am). [Latin fro Greek
monopoliol1 "a selling alone"] Hist. The sole power of
sale; a monopoly.
monopolization, n. (18c) The act or process of obtaining
a monopoly. -In federal antitrust law, monopoliza
tion is an offense with two elements: (1) the possession
of monopoly power that is, the power to fix prices
and exclude competitors -within the relevant market,
and (2) the willful acquisition or maintenance of that
power, as distinguished from growth or development as
a consequence of a superior product, business acumen,
or historical accident. United States v. Grinnell Corp.,
384 U.S. 563, 86 S.Ct. 1698 (1966). [Cases: Antitrust and
Trade Regulation (;=::-619.] monopolize, vb.
attempted monopolization. The effort to monopolize
any part of interstate or foreign commerce, consist
ing in (1) a specific intent to control prices or destroy
competition in the relevant market, (2) predatory
or anticompetitive conduct, and (3) a "dangerous
probability" of success in achieving monopoly in the
relevant market.
monopoly, n. (16c) 1. Control or advantage obtained by
one supplier or producer over the commercial market
within a given region. Cf. OLIGOPOLY. 2. The market
condition existing when only one economic entity
produces a particular product or provides a particular
service. _ The term is now commonly applied also to
situations that approach but do not strictly meet this
definition. [Cases: Antitrust and Trade Regulation
619.} -monopolistic, adj. -monopolist, n.
"[Ninety per cent] is enough to constitute a monopoly: it
is doubtful whether sixty or sixtyfour per cent is enough;
and certainly thirtythree per cent is not." United States
v. Aluminum Co. of Am., 148 F.2d 416, 424 (2d Gr. 1945)
(Hand, j.).
"In the modern sense, a monopoly exists when all, or
so nearly all, of an article of trade or commerce within
a community or district, is brought within the hands of
one person or set of persons, as practically to bring the
handling or production of the commodity or thing within
such single control to the exclusion of competition or free
traffic therein. A monopoly is created when, as the result
of efforts to that end, previously competing businesses are
so concentrated in the hands of a single person or corpo
ration, or a few persons or corporations acting together,
that they have power, for all practical purposes, to control
the prices of a commodity and thus to suppress compe
tition. In brief, a monopoly is the practical suppression
of effective business competition which thereby creates
a power to control prices to the public harm." 54A Am.
jur. 2d Monopolies, Restmints of Trade, and Unfair Trade
Practices  781, at 107 (1996).
bilateral monopoly. A hypothetical market condi
tion in which there is only one buyer and one seller,
resulting in transactional delays because either party
can hold out for a better deal without fearing that the
other party will turn to a third party.
legal monopoly. The exclusive right granted by govern
ment to business to provide utility services that are, in turn, regulated by the government. [Cases: Public
Utilities (;=::-113.]
natural monopoly. A monopoly resulting from a cir
cumstance over which the monopolist has no power,
as when the market for a product is so limited that
only one plant is needed to meet demand.
3. Patents. The exclusive right of a patentee to make, use,
sell, offer for sale, or import an invention for a certain
period of time, subject to the rights of the owners of
other patents that would be infringed. [Cases: Patents
185.]
"[TJhe statute of monopolies, 21 jac. I. c. 3, allows a royal
patent of privilege to be granted for fourteen years to
any inventor of a new manufacture, for the sole working
or making of the same; by virtue whereof a temporary
property becomes vested in the patentee." William Black
stone, 2 Commentaries on the Laws of England 407
(1766).
monopoly leveraging. A theory ofliability holding that
a party violates the antitrust laws when it exploits its
monopoly power in one market to gain a competitive
advantage in another market.
monopoly power. The power to control prices or to
exclude competition. -The size of the market share
is a primary determinant ofwhether monopoly power
exists. [Cases: Antitrust and Trade Regulation
641.]
monopsony (m<l-nop-sa-nee), n. (1933) A market situ
ation in which one buyer controls the market. [Cases:
Antitrust and Trade Regulation -monop
sonistic, adj.
"Monopsony is often thought of as the flip side of
monopoly. A monopolist is a seller with no rivals; a man
opsonist is a buyer with no rivals. A monopolist has power
over price exercised by limiting output. A monopsonist
also has power over price, but this power is exercised by
limiting aggregate purchases. Monopsony injures efficient
allocation by reducing the quantity of the input product
or service below the efficient level." Lawrence A. Sullivan
& Warren S. Grimes, The Law of Antitrust: An Integrated
Handbook 137-38 (2000).
Monroe Doctrine. The principle that the United States
will allow no intervention or domination in the Western
Hemisphere by any non-American nation. _ This prin
ciple, which has some recognition in international law
(though not as a formal doctrine), was first announced
by President James Monroe in 1823.
"The Monroe doctrine is a policy which the United States
has followed in her own interest more or less consistently
for more than a century, and in itself is not contrary to
international law, though possible applications of it might
easily be so. But it certainly is not a rule of international
law. It is comparable to policies such as the 'balance of
power' in Europe, or the British policies of maintaining the
independence of Belgium or the security of our searoutes
to the East, or the former japanese claim to something like
a paramount influence over developments in the Far East.
Apart from other objections, it is impossible to regard as
a rule of law a doctrine which the United States claims the
sale right to interpret, which she interprets in different
senses at different times, and which she applies only as
and when she chooses. Nor is the doctrine, as Article 21
of the Covenant described it, a 'regional understanding',
for the other states of the region concerned, that is to say,
the Continent of America, have never been parties to it

1099 moot


the region concerned, that is to say,
the Continent of America, have never been parties to it

1099 moot court
and indeed have often resented it." J.L. Brierly, The Law of
Nations 314 (5th ed. 1955).
monstrans de droit (mon-str<}nz d<} droyt). [Law French]
Hist. A manifestation ofright as a method of obtaining
restitution from the Crown . It was replaced by the
writ of right. Currently, restitution is obtained by an
ordinary action against the government.
monstrans de faits (mon-str<}nz d<} fay[ts]). [Law French]
Hist. A showing ofdeeds; a profert.
monstraverunt (mon-strd-veer-;mt). [Latin "they have
showed"] Hist. A writ of relief for tenants of ancient
demesne who were distrained by their lord to do more
than the tenure required. Also termed writ ofmon
stral'erunt.
'The little writ serves the turn of a man who claims land
according to the custom of the manor; but the tenants of
whom we are speaking are protected, and protected col
lectively, against any increase of their services. This is very
plain when the manor is in the hands of a mesne lord. If he
attempts to increase the customary services, some of the
tenants, acting on behalf of all, will go to the royal chancery
and obtain a writ against him. Such a writ begins with the
word Monstraverunt. The king addresses the lord: 'A,
Band C, men of your manor of X, which is of the ancient
demesne of the crown of England, have shown us that you
exact from them other customs and services than those
which they owe, and which their ancestors did in the time
when that manor was in the hands of our predecessors,
kings of England; therefore we command you to cease from
such exactions, otherwise we shall order our sheriff to
interfere." 1 Frederick Pollock & FrederiC W. Maitland, The
History ofEnglish Law Before the Time ofEdward 1388 (2d
ed. 1898).
montes pietatis (mon-teez pI-d-tay-tis). [Latin "moun
tains of piety"] Hist. Institutions established to lend
money upon pledges of goods.
Montevideo Treaty. Copyright. An 1889 copyright treaty
among Western Hemisphere nations, based on the
Berne Convention but affording less copyright protec
tion.
month. (18c) (bef. 12c) 1. One of the twelve periods of
time in which the calendar is divided <the month of
March>. Also termed calendar month; civil month.
[Cases: Time 2. Any time period approximating
30 days <due one month from today>. 3. At common
law, a period of28 days; the period of one revolution
of the moon <a lunar month>. Also termed lunar
month. 4. One-twelfth of a tropical year; the time it
takes the sun to pass through one sign of the zodiac,
usu. approximating 30 days <a solar month> Also
termed solar month.
month-to-month lease. See LEASE.
month-to-month tenancy. See periodic tenancy under
TENANCY.
Montreal Agreement. A private agreement, Signed by
most international airlines, waiving both the Warsaw
Convention's limitation on liability for death and per
sonal-injury cases (currently about $20,000) and the
airline's due-care defenses, raising the liability limit
per passenger to $75,000, and providing for absolute
liability on the part of the carrier (in the absence of passenger negligence) for all flights originating,
stopping, or terminating in the United States . The
Montreal Agreement was the result of negotiations in
1965 and 1966 follOWing the United States' denuncia
tion ofthe Warsaw Convention, based primarily on its
low liability limits. -Also termed Agreement Relating
to Liability Limitation ofthe Warsaw Convention and
the Hague Protocol. [Cases: Carriers C::)307; Treaties
C::='8.]
monument, n. (I5c) 1. A written document or record,
esp. a legal one. 2. Any natural or artificial object that
is fixed permanently in land and referred to in a legal
description ofthe land. [Cases: Boundaries 5.)
monumental, adj.
mural monument. A monument set into or otherwise
made part ofa wall.
natural monument. A nonartificial permanent thing
on land, such as a tree, river, or beach. -Also termed
natural object. [Cases: Boundaries
Moody's Investor's Service. An investment-analysis and
adVisory service . Moody's rates the financial strength
ofbusinesses from Aaa (strongest) to Aa, A, Baa, and so
on to C. 'The grade may also be modified with a 1,2, or
3 according to the business's relative strength among
similar companies. -Often shortened to Moody's.
moonlighting. (1957) The fact or practice ofworking at
a second job after the hours of a regular job. -Also
termed dual employment; multiple job-holding.
I moonshine. (18c) Slang. A distilled alcoholic beverage,
esp. whiskey, that is illegally manufacturecl. [Cases:
Intoxicating Liquors C=' l37.)
moorage. 1. An act of mooring a vessel at a wharf. 2. A
mooring charge. [Cases: Wharves 15.]
moored in safety. Marine insurance. (Of a vessel) located
in a usual place for landing or loading cargo, free from
any imminent peril insured against. [Cases: Insurance
C::='2214.]
moot, adj. (16c) 1. Archaic. Open to argument; debat
able. 2. Having no practical significance; hypotheti
calor academic <the question on appeal became moot
once the parties settled their case>. -mootness, n.
moot, vb. (bef. 12c) 1. Archaic. To raise or bring forward
(a point or question) for discussion. 2. To render (a
question) moot or of no practical significance.
moot case. A matter in which a controversy no longer
exists; a case that presents only an abstract question
that does not arise from existing facts or rights. [Cases:
Action Federal Courts C::=' 12.l.]
moot court. (I8c) 1. A fictitious court held usu. in law
schools to argue moot or hypothetical cases, esp. at the
appellate level. 2. A practice session for an appellate
argument in which a lawyer presents the argument
to other lawyers, who first act as judges by asking
questions and who later provide criticism on the
argument. -Also termed practice court. Cf. MOCK
TRIAL.

moot man. Hist. A person who argued cases in the Inns
of Court.
mootness doctrine. (1963) 1be principle that American
courts will not decide moot cases -that is, cases in
which there is no longer any actual controversy. Cf.
RIPENESS. [Cases: Action ~6;Appeal and Error ~
781; Federal Courts (;:;,) 12.1.]
mop fair. See STATUTE FAIR.
mora (mor-a), n. [Latin] Roman law. Willful delay or
default in fulfilling a legal obligation . A creditor or
debtor in mora could be required to pay interest on any
money owed.
"The word mora means delay or default. In its technical
sense it means a culpable delay in making or accepting
performance .... The definition includes both mora deb;
toris and mora creditoris. In French law and other civil law
systems mora debitoris seems (sometimes, if not always)
to occur as a mean term between failure to perform a duty
timeously and liability for breach .... Mora usually attaches
to a debtor, but it may also attach to a creditor who fails
to accept performance duly tendered ...." R.w. Lee, An
Introduction to Roman-Dutch Law 445 (4th ed. 1946).
"Mora. This was wrongful failure to discharge a legal obliga
tion on demand made at a fitting time and place. It must be
wilful: failure to appear, by mistake, or in a bona (ide belief
that there was no obligatiO, or doubt about it, or by mishap,
did not suffice to put a debtor in mora." W.W. Buckland, A
Manual ofRoman Private Law 338 (2d ed. 1939).
mora (mor-a), n. [Law Latin] Hist. A moor; unprofitable
ground.
moral absolutism. The view that a person's action can
always properly be seen as right or wrong, regardless
of the situation or the consequences. -Also termed
ethical absolutism; objective ethics. Cf. MORAL RELA
TIVISM.
moral certainty. (17c) Absolute certainty . Moral cer
tainty is not required to sustain a criminal conviction.
See REASONABLE DOUBT; proof beyond a reasonable
doubt under PROOF. [Cases: Criminal Law C=-561(1).)
moral coercion. See UNDGE INFLUE!'oICE (1).
moral consideration. See good consideration (1) under
CONSIDERATIO!'ol (1).
moral depravity. See MORAL TURPITUDE (1).
moral duress. See DURESS.
moral duty. See DUTY (1).
moral evidence. See EVIDENCE.
moral fraud. See actualfraud under FRAUD.
moral hazard. See HAZARD (2).
morality. (14c) 1. Conformity with recognized rules of
correct conduct. 2. The character of being virtuous,
esp. in sexual matters.
"[Tlhe terms 'morality' and 'immorality' ... are understood
to have a sexual connotation. In fact, the terms 'ethics' and
'morals' are no longer interchangeable in everyday speech.
A governmental offiCial arraigned on a 'morals charge' will
be accused of something quite different from one accused
of an 'ethics Violation.'" William P. Golding, Philosophy of
Law 5S (1975).
3. A system of duties; ethics. private morality. (18c) A person's ideals, character, and
private conduct, which are not valid governmental
concerns if the individual is to be considered sover
eign over body and mind and ifthe need to protect the
individual's physical or moral well-being is insuffi
cient to justify governmental intrusion . In his essay
On Liberty (1859), John Stuart Mill distingUished
between conduct or ideals that affect only the indi
vidual from conduct that may do harm to others. Mill
argued that governmental intrusion is justified only
to prevent harm to others, not to influence a person's
private morality.
public morality. (lSc) 1. The ideals or general moral
beliefs ofa society. 2. The ideals or actions of an indi
vidual to the extent that they affect others.
moral law. (lSc) A collection of principles defining right
and wrong conduct; a standard to which an action must
conform to be right or virtuous.
"It quite often happens that the moral law disapproves of
something which the secular permits as a concession to
human frailty." Patrick Devlin, The Enforcement of Morals
78 (1968).
moral necessity. See NECESSITY.
moral obligation. See OBLIGATION.
moral person. See artificial person under PERSON (3).
moral relativism. The view that there are no absolute or
constant standards ofright and wrong. Also termed
ethical relativism; subjective ethics. Cf. MORAL ABSO
LUTISM.
moral right. (usu. pl.) Copyright. The right ofan author
or artist, based on natural-law principles, to guaran
tee the integrity of a creation despite any copyright or
property-law right ofits owner.  Moral rights include
rights of (1) attribution (also termed "paternity"): the
right to be given credit and to claim credit for a work,
and to deny credit if the work is changed; (2) integ
rity: the right to ensure that the work is not changed
without the artist's consent; (3) publication: the right
not to reveal a work before its creator is satisfied with
it; and (4) retraction: the right to renounce a work and
withdraw it from sale or display. Moral rights are recog
nized by law in much ofEurope. Limited moral rights
are recognized in the United States in 17 USCA  106A.
Cf. INTEGRITY RIGHT; ATTRIBUTION RIGHT. [Cases:
Copyrights and Intellectual Property (;::, lO1.J
"The recognition of moral rights is founded in the notion
that works of art belong to their creators in a way that
transcends the sale or transfer of the work to a new owner,
because the artist has imbued the work with her personal
ity." EriC M. Brooks, 'Titled" Justice: Site-Specific Art and
Moral Rights After u.s. Adherence to the Berne Convention,
77 Cal. L. Rev. 1431, 1434 (1989).
"Moral rights protect an author's non-pecuniary or non
economic interests. The 1988 [Copyrightl Act provides
authors and directors with the right to be named when a
work is copied or communicated (the right of attribution),
the right norto be named as the author of a work which one
did not create (the right to object against false attribution),
and the right to control the form of the work (the right
of integrity)." Lionel Bently & Brad Sherman, Intellectual
Property Law 233 (2001).

1101
moral suasion. The act or effort of persuading by appeal
to principles of morality.
moral turpitude. (17c) 1. Conduct that is contrary to
justice, honesty, or morality. In the area of legal
ethics, offenses involving moral turpitude such as
fraud or breach oftrust -traditionally make a person
unfit to practice law. -Also termed moral depravity.
2. Military law. Any conduct for which the applicable
punishment is a dishonorable discharge or confinement
not less than one year.
"Moral turpitude means, in general, shameful wicked
ness so extreme


inement
not less than one year.
"Moral turpitude means, in general, shameful wicked
ness so extreme a departure from ordinary standards of
honest, good morals, justice, or ethics as to be shocking to
the moral sense ofthe community. It has also been defined
as an act of baseness, vileness, or depravity in the private
and social duties which one person owes to another, or to
society in general, contrary to the accepted and customary
rule of right and duty between people." 50 Am. Jur. 2d Libel
and Slander  165, at 454 (1995).
moral wrong. See WRONG.
moral-wrong doctrine. (1962) The doctrine that if a
wrongdoer acts on a mistaken understanding of the
facts, the law will not exempt the wrongdoer from cul
pability when, ifthe facts had been as the actor believed
them to be, his or her conduct would nevertheless be
immoral. [Cases: Criminal Law (;=33.]
morandae solutionis causa (ma-ran-dee sa-Ioo-shee-oh
nis kaw-za). [Latin] Hist. For the purpose of delaying
payment.
moratorium (mor-a-tor-ee-Jm). (1875) 1. An authorized
postponement, usu. a lengthy one, in the deadline for
paying a debt or performing an obligation. 2. The period
of this delay. 3. The suspension of a specific activity. PI.
moratoriums, moratoria.
moratory (mor-J-tor-ee), adj. (1891) Of or relating to a
delay; esp. of or relating to a moratorium.
moratory damages. See DAMAGES.
moratory interest. See prejudgment interest under
INTEREST (3).
more burg; (mor-ee b;}r-jI). [Law Latin] Hist, According
to the custom in burgage-tenure. See BURGAGE-TENURE
(2).
more or less. (Of a quantity) larger or smaller . This
phrase often appears in deeds <the property contains
120 acres, more or less> and sometimes in contracts
<seller's wheat field will produce 50 bushels per acre,
more or less>. It qualifies a good-faith representation
of quantity. By using the phrase, the parties mutually
acknowledge that the true circumstances may differ
from what the parties believe they are when the contract
is made, and accept a risk that the true quantity will
be slightly different. When the qualifying phrase is
present, neither party can recover for a surplus or defi
ciency. [Cases: Deeds (;=38(1); Sales (;=71; Vendor
and Purchaser
morganatic marriage. See MARRIAGE (1),
morgangiva (mor-gan-ja-va), n. [Law Latin "morning
gift" from Old Norsel Hist. A gift made to the bride on mortgage
the morning after the wedding; a type of dowry. Also
spelled morgangina.
Morgan Nick Alert. See AMBER ALERT.
Morgan presumption. (1948) A presumption that shifts
the burden of proof by requiring the person against
whom it operates to produce sufficient evidence to
outweigh the evidence that supports the presumed fact,
as in requiring a criminal defendant who was arrested
while in possession of an illegal substance and is
thereby presumed to have knOWingly possessed it -to
produce sufficient evidence to entitle the jury to find
that the defendant's evidence outweighs the evidence of
knowing possession. See Edmund M. Morgan, Instruct
ing the Jury Upon Presumptions and Burdens ofProof,
47 Harv. 1. Rev. 59, 82-83 (1933). Cf. THAYER PRESUMP
TION. [Cases: Controlled Substances <2=)68; Criminal
Law (;=324; Evidence (:::;.-:>85.]
mors (morz), n. [Latin "death"] Roman law. 1. Death. 2.
The punishment of death.
morsellum terrae (mor-sel-am ter-ee). [Law Latin "a
morsel of earth"] Hist. A small parcel of land.
morsel of execration. See ordeal ofthe morsel under
ORDEAL.
mors naturalis (morz nach-a-ray-lis). See natural death
under DEATH.
mortality factor. Insurance. In life-insurance ratemak
ing, an estimate of the average number of deaths that
will occur each year at each specific age, calculated by
using an actuarial table . The mortality factor is one
element that a life insurer uses to calculate premium
rates. See ACTUARIAL TABLE; PREMIUM RATE_ Cf.'
INTEREST FACTOR; RISK FACTOR. [Cases: Insurance
(:::J 1542(1).]
: mortality table. See ACTUARIAL TABLE.
mort civile (mor[t] see-veel). [Law French] See CIVIL
DEATH (t).
mort d'ancestor (mor[t] dan-ses-tar). [Law French "death
of an ancestor"] Hist. An assize founded on the death
of an ancestor. -Also termed (in Scots law) brieve of
mortancestry.
"Another of the petty assizes was that of mort d'ancestor,
founded on the Assize of Northhampton 1176. The question
in this assize was whether the plaintiff's father (or other
close ancestor) had been seised in fee that is, of an
inheritable estate ~ on the day he died, and whether the
plaintiff was his next heir; if both questions were answered
in the affirmative, the plaintiff was entitled to be put in
seisin." J,H. Baker, An Introduction to English Legal History
267-68 (3d ed. 1990).
mortgage (mor-gij), n. (I5c) 1. A conveyance of title
to property that is given as security for the payment
of a debt or the performance of a duty and that will
become void upon payment or performance according
to the stipulated terms. -Also termed (archaically)
dead pledge. [Cases: Mortgages 2. A lien against
property that is granted to secure an obligation (such
as a debt) and that is extinguished upon payment or
performance according to stipulated terms. [Cases:
Mortgages C:::> 145.] 3. An instrument (such as a deed

or contract) specifying the terms of such a transac
tion. 4. Loosely, the loan on which such a transaction
is based. 5. The mortgagee's rights conferred by such
a transaction. 6. Loosely, any real-property security
transaction, including a deed of trust. -Abbr. M.
mortgage, vb.
"The chief distinction between a mortgage and a pledge
is that by a mortgage the general title is transferred to the
mortgagee, subject to be revested by performance of the
condition; while by a pledge the pledgor retains the general
title in himself, and parts with the possession for a special
purpose. By a mortgage the title is transferred; by a pledge,
the possession." Leonard A. Jones, A Treatise on the Law of
Mortgages  4, at 5-6 (5th ed, 1908).
adjustable-rate mortgage. A mortgage in which the
lender can periodically adjust the mortgage's interest
rate in accordance with fluctuations in some external
market index. -Abbr. ARM. -Also termed vari
able-rate mortgage;flexible-rate mortgage. Cf. explod
ing adjustable-rate mortgage.
all-inclusive mortgage. See wraparound mortgage.
amortized mortgage. A mortgage in which the mort
gagor pays the interest as well as a portion of the
principal in the periodic payment. _ At maturity, the
periodic payments will have completely repaid the
loan. -Also termed self-liquidating mortgage. See
AMORTIZATION (1). Cf. straight mortgage.
balloon-payment mortgage. A mortgage requir
ing periodic payments for a specified time and a
lump-sum payment of the outstanding balance at
maturity.
blanket mortgage. A mortgage covering two or more
properties that are pledged to support a debt.
bulk mortgage. 1. A mortgage of personal property in
bulk; a pledge of an aggregate of goods in one location.
2. A mortgage of more than one real-estate parcel.
chattel mortgage (chat-<)l). A mortgage on goods pur
chased on installment, whereby the seller transfers
title to the buyer but retains a lien securing the unpaid
balance. -Chattel mortgages have generally been
replaced by security agreements, which are governed
by Article 9 of the VCe. Cf. retail installment contract
under CONTRACT. [Cases: Chattel Mortgages 1.]
closed-end mortgage. A mortgage that does not permit
either prepayment or additional borroWing against
the collateral. Cf. open-end mortgage. -Also termed
closed mortgage.
closed mortgage. See closed-end mortgage.
collateral mortgage. Civil law. A mortgage securing a
promissory note pledged as collateral security for a
principal obligation.
common-law mortgage. See deed oftrust under DEED.
consolidated mortgage. A mortgage created by com
bining two or more mortgages.
construction mortgage. A mortgage used to finance a
construction project. contingent-interest mortgage. A mortgage whose
interest rate is directly related to the economic per
formance of the pledged property.
conventional mortgage. A mortgage, not backed by
government insurance, by which the borrower trans
fers a lien or title to the lending bank or other financial
institution. -These mortgages, which feature a fixed
periodic payment of principal and interest through
out the mortgage term, are typically used for home
financing. Also termed conventional loan.
direct-reduction mortgage. An amortized mortgage in
which the principal and interest payments are paid at
the same time -usu. monthly in equal amounts
with interest being computed on the remaining
balance. -Abbr. DRM.
dry mortgage. A mortgage that creates a lien on
property but does not impose on the mortgagor any
personal liability for any amount that exceeds the
value of the premises.
equitable mortgage. A transaction that has the intent
but not the form of a mortgage, and that a court
of equity will treat as a mortgage. Cf. technical
mortgage.
"Courts of equity are not governed by the same principles
as courts of law in determining whether a mortgage has
been created, and generally, whenever a transaction
resolves itself into a security, or an offer or attempt to
pledge land as security for a debtor liability, equity will
treat it as a mortgage, without regard to the form it may
assume, or the name the parties may choose to give it. The
threshold issue in an action seeking imposition of an equi
table mortgage is whether the plaintiff has an adequate
remedy at law. In applying the doctrine of equitable mort
gages doubts are resolved in favor of the transaction being
a mortgage." 59 c.J.S. Mortgages  12, at 62 (1998).
exploding adjustable-rate mortgage. An adjustable
rate mortgage for which the lender resets the interest
rate so high that the borrower can no longer make
payments. -Sometimes shortened to exploding
ARM. Cf. adjustable-rate mortgage.
extended first mortgage. See wraparound mortgage.
FHA mortgage. A mortgage that is insured fully or par
tially by the Federal Housing Administration.
first mortgage. A mortgage that is senior to all other
mortgages on the same property. [Cases: Mortgages
151.J
fixed-rate mortgage. A mortgage with an interest rate
that remains the same over the life of the mortgage
regardless of market conditions. -Abbr. FRM.
flexible-rate mortgage. 1. See adjustable-rate mortgage.
2. See renegotiable-rate mortgage.
flip mortgage. A graduated-payment mortgage
allowing the borrower to place all or some of the
down payment in a savings account and to use the
principal and interest to supplement lower mortgage
payments in the loan's early years.
future-advances mortgage. A mortgage in which part
of the loan proceeds will not be paid until a future
date. [Cases: Mortgages 16, 116.]

1103
general mortgage. Civil law. A blanket mortgage against
all the mortgagor's present and future property. La.
Civ. Code art. 3285.
graduated mortgage. See graduated-payment
mortgage.
graduated-payment adjustable-rate mortgage. A
mortgage combining features of the graduated-pay
ment mortgage and the adjustable-rate mortgage. -
Abbr. GPARM. -Also termed graduated mortgage.
graduated-payment mortgage. A mortgage whose
initial payments are lower than its later payments .
The payments are intended to gradually increase, as
the borrower's income increases over time.
growing-equity mortgage. A mortgage that is fully
amortized over a Significantly shorter term than the
traditional 25-to 30-year mortgage, with increasing
payments each year. -Abbr. GEM.
indemnity mortgage. See deed oftrust under DEED.
interest-only mortgage. A balloon-payment mortgage
on which the borrower must at tirst make only interest
payments, but must make a lump-sum payment of the
full principal at maturity. -Abbr. 10 mortgage.
Also termed standing mortgage; straight-term
mortgage.
joint mortgage. A mortgage given to two or more mort
gagees jointly.
judicial mortgage. Civil law. A judgment lien created
by a recorded legal judgment. [Cases: Judgment
752-766.J
jumbo mortgage. A mortgage loan in a principal
amount that exceed